Article XIII — CONTRACTOR — Porterville Municipal Code

SECTION:

2-114: Standards Of Responsibility And Statement Of Purpose

2-115: Definitions

2-116: Scope Of Article

2-117: Investigation

2-118: Debarment Hearing Board To Be Established

2-119: Suspension Once City Manager Decides To Recommend Debarment

2-120: Request For Hearing; Notices

2-121: Grounds For Debarment

2-122: Debarment Proceedings Before Debarment Hearing Board Or City Council

2-123: Debarment Hearing Board's Authority To Debar; Board's Decision Final

2-124: Modification Of Decision

2-125: Appeals To City Council From Certain Decisions Of Debarment Hearing Board

2-126: Submission Of Argument On Appeal

2-127: Standard Of Proof

2-128: Imputation Of Knowledge And Conduct

2-129: Judicial Review

2-130: Creation Of List Of Debarred And Suspended Persons

2-131: Effect Of Debarment Or Suspension

2-132: Effect Of Debarment Or Suspension On An Affiliate

2-133: Effect Of Debarment Or Suspension By Another Governmental Agency

2-134: Liability For Increased Costs

2-135: Effect Of Debarment Or Suspension On Existing Contracts

2-136: Agreement Not To Bid In Lieu Of One Year Debarment

2-137: Amendments And Compromises Allowed

2-138: Severability

2-114: STANDARDS OF RESPONSIBILITY AND STATEMENT OF PURPOSE:

A. The covenant of good faith and fair dealing is contained in every city contract, and city contractors and subcontractors shall at all times deal in good faith with the city and shall submit invoices for payment, claims, requests for equitable adjustments, requests for change orders, requests for contract modifications, or requests of any kind seeking compensation on a city contract, only upon good faith, honest evaluation of the matter which is the subject thereof. The city requires in all of its procurement procedures that all persons who submit bid proposals or offer to enter into a contract with the city to do so truthfully and in good faith, and shall not attempt to mislead the city with respect to the following, including, but not limited to, records regarding the nature or quality of the work performed under the contract, payroll records, classification of employees on payroll records, and payment of prevailing wages where called for by the contract. All city contractors and subcontractors shall adhere to all applicable laws and regulations, including, but not limited to, city ordinances/policies regarding nondiscrimination, gifts to city officials, and conflict of interest regulations. Additionally, all city contractors and subcontractors shall comply with all city policies applicable to the contract to which they are a party. Finally, all city contractors and subcontractors shall adhere to the highest standards of performance and workmanship in the performance of work on city contracts.

B. 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 persons. Debarment and suspension are discretionary actions that, taken in accordance with this article, are appropriate means to effectuate this policy. Debarment and suspension are designed to protect the city by ensuring full and open competition by having contractual relationships only with responsible persons.

C. The serious nature of debarment and suspension requires that these sanctions be imposed only in the public interest for the city's protection, not for purposes of punishment, and only for the grounds listed and in accordance with procedures set forth in this article. (Ord. 1705 § 1, 10-3-2006)

2-115: DEFINITIONS:

For purposes of this article, the following terms shall mean:

ADEQUATE EVIDENCE: Information sufficient to support the reasonable belief that a particular act or omission has occurred.

AFFILIATE: A person who:

A. Is the assignee, successor, subsidiary of, or parent company of, another person; or

B. Is a controlling stockholder; or

C. Has the same or similar management of the debarred corporate or other legal entity; or

D. Directly or indirectly controls, or has the power to control, another person, or is directly or indirectly controlled by another person. Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among relatives, shared facilities and equipment, common use of employees; or a business entity organized following the debarment, suspension, or proposed debarment of a person which has the same or similar management, ownership or principal employees as the contractor that was debarred, suspended or proposed for debarment; or the debarred person or the business entity created after the debarment, suspension or proposed debarment operates in a manner designed to evade the application of this article or to defeat the purpose of this article.

AGENCY: The redevelopment agency of the city of Porterville.

BIDDER: A person who has submitted a bid, proposal or other document seeking award of a contract.

CONTRACT: Any written agreement between the city and another person. It also includes a public works contract. It also includes a city issued purchase order.

CONTROLLING STOCKHOLDER: A stockholder who:

A. Owns more than twenty five percent (25%) of the voting stock of a corporation; or

B. 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.

DEBAR OR DEBARMENT: The disqualification of a person from:

A. Bidding on a contract; or

B. Submitting responses to city's requests for proposals or qualifications; or

C. Being awarded a contract; or

D. Executing a contract; or

E. Participating in a contract as a subcontractor, material supplier, or employee of a prime contractor or another subcontractor for a period of time specified by the debarment hearing board following a hearing.

F. Directly or indirectly (e.g., through an affiliate) submitting offers for, or executing contracts, or subcontracts with, the city; or

G. Conducting business with, or reasonably may be expected to conduct business with, the city as an employee, agent, or representative of another person.

DEBARMENT HEARING BOARD: A board established by the city to hold hearings, take evidence, and to make determinations about debarment for the city.

DEPARTMENT: A city department organized under authority of the city manager.

FINAL CONSTRUCTION CONTRACTOR PERFORMANCE EVALUATION: A city issued evaluation of a person's overall performance on a public works contract. This evaluation is generally issued subsequent to completion of performance on the public works contract. It does not include performance evaluations, final performance evaluations, or partial construction contractor performance evaluations.

FINAL PERFORMANCE EVALUATION: A city issued final evaluation of a person's overall performance on a contract which is generally issued subsequent to completion of performance on the contract. It includes final construction contractor performance evaluations. It does not include performance evaluations or partial construction contractor performance evaluations.

MANAGEMENT: The officers, partners, owners, foremen or other individuals responsible for the financial and operational policies and practices of a person.

PARTIAL CONSTRUCTION CONTRACTOR PERFORMANCE EVALUATION: A city issued evaluation of a person's performance on a specific public works contract. It includes only evaluations issued during performance of a public works contract. It does not include final construction contractor performance evaluations.

PERFORMANCE EVALUATION: A city issued evaluation of a person describing the person's performance on a specific contract. It includes evaluations issued during performance of a contract and partial construction contractor performance evaluations. It does not include final performance evaluations or final construction contractor performance evaluations.

PERSON: Has the same meaning as that in section1-4 of this code. In addition, if a person is a corporate or other legal entity, it includes individuals who constitute the person's management. It also includes any individual or other legal entity that:

A. Directly or indirectly (e.g., through an affiliate) submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a contract, or a subcontract under a contract; or

B. Conducts business, or reasonably may be expected to conduct business, with the city as an agent or representative of another person.

PREPONDERANCE OF THE EVIDENCE: Proof by information that, compared with that opposing it, leads to the conclusion that the fact at issue is more probably true than not.

PRIME CONTRACTOR: A person who enters a contract directly with the city.

PUBLIC WORKS CONTRACT: A contract for the construction, reconstruction or repair of public buildings, streets, utilities, and other public works.

RELATIVE: A. An individual related by consanguinity within the second degree as determined by the common law; or

B. A spouse; or

C. An individual related to a spouse within the second degree as determined by the common law; or

D. An individual in an adoptive relationship within the second degree as determined by the common law; or

E. Any individual considered to be "family" in commonly understood terms of the word.

SUBCONTRACTOR: A. A person who contracts directly with a prime contractor but not directly with the city; or

B. Any person under contract with a prime contractor or another subcontractor to provide any service, materials, labor or otherwise perform on a contract. Subcontractor includes a trade contractor or specialty contractor.

SUSPEND OR SUSPENSION: The debarment of a person for a temporary period of time pending the completion of an investigation and any proceedings before a debarment hearing board and any appeals therefrom.

WILFULLY FAILED TO COOPERATE: A. Intentionally failed to attend a hearing and/or give testimony; or

B. Intentionally failed to provide documents, books, papers, or other information upon request of the city manager, the debarment hearing board, or the city council. (Ord. 1705 § 1, 10-3-2006)

2-116: SCOPE OF ARTICLE:

A. This article establishes procedures for determining whether a person is to be debarred or suspended.

B. This article sets forth the grounds for debarment and suspension.

C. This article provides that a list of debarred and suspended persons is to be created and maintained by the city manager. It further spells out the consequences of a person's debarment and suspension. (Ord. 1705 § 1, 10-3-2006)

2-117: INVESTIGATION:

A. Initiation Of Proceedings: The city manager may initiate debarment proceedings. If debarment proceedings are initiated, the city manager shall cause an investigation to be conducted.

B. Written Findings: If, upon investigation, it is determined that an act or omission which can give rise to debarment may have occurred, written findings shall be made containing the grounds for debarment as well as a recommendation. If it is determined that no act or omission which can give rise to debarment occurred or can be proven, written findings shall be made to that effect. (Ord. 1705 § 1, 10-3-2006)

2-118: DEBARMENT HEARING BOARD TO BE ESTABLISHED:

Upon receipt of a recommendation for debarment from a city department and request for a hearing by the person consistent with the provisions of this article, the city manager shall appoint a fair and impartial board called a debarment hearing board to hear and determine whether a person should be debarred. The city manager shall appoint three (3) individuals to serve on each debarment hearing board. These individuals shall be unbiased and may be city employees, but shall not be employees who have participated in the decision to recommend the debarment nor are subject to the authority, direction or discretion of employees or have participated in the decision to recommend debarment. The debarment hearing board shall follow procedures set forth in this article and shall make decisions based on evidence taken at a hearing. The debarment hearing board's scope of authority and duties are set forth in this article. (Ord. 1705 § 1, 10-3-2006)

2-119: SUSPENSION ONCE CITY MANAGER DECIDES TO RECOMMEND DEBARMENT:

A. Authority To Suspend: Once a determination has been made by the city manager that adequate evidence exists supporting debarment, the city manager may suspend the person pending any written request for further proceedings and a debarment decision where the city manager finds that doing so is in the public interest.

B. Notice Of Suspension: The city manager shall notify the person of the suspension in accordance with section2-120 of this article, pending any proceedings and decision by the debarment hearing board or city council's ruling on the matter.

C. Term Of Suspension: Once the city manager has suspended a person, the suspension shall continue until the time, set forth in section 2-120 of this article, for requesting a hearing before the debarment hearing board has run and the proposed debarment goes into effect, the debarment hearing board makes a final decision on the proposed debarment, or until there has been a final ruling by the city council following an appeal of a permanent debarment decision, if any appeal is filed. (Ord. 1705 § 1, 10-3-2006)

2-120: REQUEST FOR HEARING; NOTICES:

A. Contents Of Notice; Request For Hearing: The city manager shall provide written notice as specified in subsection B of this section to the person. If debarment is recommended, the notice of proposed debarment shall contain the following: 1) notice that debarment is being considered; 2) the basis for the proposed debarment; 3) the potential consequences of the debarment; and 4) the city's procedures governing debarment. Within fifteen (15) days after receipt of the notice of proposed debarment, the person may submit a written request to be heard, in person or through a representative. Failure of the person to submit to the city a written request to be heard within the time provided by this section, or failure of the person to appear for a requested hearing, shall be deemed consent by the person to the proposed debarment, and the person shall automatically be deemed debarred.

B. Method Of Delivering Notice: Whenever a notice is required to be delivered under this article, the notice shall be delivered by any of

the following methods. Service is effective as described herein unless different provisions are specifically stated to apply:

Personal delivery; service shall be deemed effective on the date of delivery; or
Certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice

that is sent by certified mail is returned unsigned, then delivery shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned. Service shall be deemed effective on the date of mailing; or

Publication; service shall be deemed effective on the first date of publication.

C. Proof Of Delivery: Proof of delivery of notice may be made by the certificate of any officer or employee of the city or by declaration under penalty of perjury of any person over the age of eighteen (18) years. The proof of delivery shall show that delivery was done in conformity with this article or other provisions of law applicable to the subject matter concerned.

D. Failure To Receive Notice; Effect: The failure of any person to receive any notice served in accordance with this article shall not affect the validity of any debarment proceedings. (Ord. 1705 § 1, 10-3-2006)

2-121: GROUNDS FOR DEBARMENT:

A. A final conviction, including a plea of nolo contendere, or final unappealable civil judgment of any one or more of the grounds listed in subsections A1 through A4 of this section constitutes grounds for permanent debarment of the person who is subject to, or is the affiliate of the person who is subject to, the criminal conviction, plea, or civil judgment:

Under any state or federal statute or municipal ordinance for 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 indicating a lack of business integrity or business honesty which affects the person's or its affiliate's responsibility; or

For commission of a criminal offense arising out of obtaining or attempting to obtain a public or private contract or subcontract, or

in the performance of such contract or subcontract; or

For violations of California Government Code sections 84300(c) and 84301 (sections of the California political reform act

requiring disclosure of true campaign donor), as they exist on May 15, 1996, or as amended thereafter, which violations occurred on or after May 15, 1996, and which violations occur with respect to a city election; or

For a conviction under federal or state antitrust statutes involving public contracts or the submission of offers or bid proposals.

B. A fair political practices commission enforcement order against a person, either following a hearing or by stipulation, that makes a finding of a violation of California Government Code sections 84300(c) and 84301, as those sections exist on May 15, 1996, or as amended thereafter, which violation occurred on or after May 15, 1996, and which violation occurred with respect to a city election, constitutes grounds for permanent debarment of the person who is subject to, or is the affiliate of the person who is subject to, the enforcement order.

C. Any one of the following acts or omissions by a person also constitute grounds for permanent debarment:

The person committed any offense, took any action, or failed to take an action, which indicates a lack of business integrity and

which could directly affect the reliability and credibility of performance of the person on future contracts with the city; or

The person committed collusion with any party or parties in the submission of any bid or for the purpose of preventing any other

bid being made; or

The person has committed any corrupt practice in bidding for or in any way seeking award of a contract, or has committed any

corrupt practice in any way relating to a city contract; or

The person was established to, or operates in a manner designed to, evade the application of this article or to defeat the purpose

of this article.

D. Any two (2) or more of the following acts or omissions by a person constitute grounds for debarment of that person for no less than three (3) years and up to and including permanently:

The person unjustifiably refused to properly perform or complete contract work or warranty performance; or
The person unjustifiably failed to honor or observe contractual obligations or legal requirements pertaining to the contract; or
The person used substandard materials, or has failed to furnish or install materials in accordance with 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; or

The person committed a violation of the drug free workplace act of 1988 (41 USC sections 701-707); or
The person wilfully failed to cooperate in the investigation or hearing of the proposed debarment; or
The person performs, or fails to perform, a contract in such a way that environmental damage results or a violation of

environmental laws or permits is committed; or

The person practices unlawful discrimination in employment, and the person has not taken corrective action after sufficient notice

by the city; or

8. The person has committed an act or omission of so serious or compelling a nature that:

a. It affects the present responsibility of the person to be awarded a contract or to participate as a subcontractor in a contract; or

b. It affects the integrity of the procurement process.

Any one of the following acts or omissions by a person listed in subsection E of this section.

E. The following acts or omissions by a person constitute grounds for debarment of that person for no less than one year:

The city issued the person two (2) or more performance evaluations from the city with a rating of unsatisfactory within a two (2)

year period.

The city has issued the person a final performance evaluation with a rating of unsatisfactory.
The person has failed to timely submit bond, contract documents, insurance documents or any other item required by the city,

acceptable to the city which conform to bid, request for proposal and/or contract requirements.

The person submitted two (2) or more claims of computational or other error in a bid to the city within a two (2) year period. (Ord.

1705 § 1, 10-3-2006)

2-122: DEBARMENT PROCEEDINGS BEFORE DEBARMENT HEARING BOARD OR CITY COUNCIL:

The proceedings shall be as informal as is compatible with the requirements of justice. The debarment hearing board 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. 1705 § 1, 10-3-2006)

2-123: DEBARMENT HEARING BOARD'S AUTHORITY TO DEBAR; BOARD'S DECISION FINAL:

A. Authority Of Board: After notice and hearing held in accordance with the procedures set forth in this article and as may be further developed in accordance with any additional policies adopted by the city council, the debarment hearing board shall determine whether a person is to be debarred and for what length of time. To debar a person, the debarment hearing board must find by a preponderance of the evidence that one or more grounds for debarment stated in section 2-121 of this article exist.

B. Board's Decision Final; Exception: Except as provided in subsection C of this section, a debarment hearing board's decision shall be final.

C. Appeal To Council: A decision by a debarment hearing board to permanently debar a person may be appealed to the city council in accordance with section 2-125 of this article. The filing of a request for appeal of the debarment decision shall not stay the debarment hearing board's decision pending a final decision of the city council.

D. Notice Of Board's Decision: The debarment hearing board shall deliver notice of the decision to the person subject to the debarment hearing and to the city manager. (Ord. 1705 § 1, 10-3-2006)

2-124: MODIFICATION OF DECISION:

A. Reasons For Modification: The debarment hearing board may, but is not required to, modify a debarment decision for any reason which obviates the need for the debarment or which indicates that a shorter debarment period will adequately protect the public interest. Such reasons include, but are not limited to, the following: 1) newly discovered evidence; 2) reversal of the conviction or civil judgment upon which the debarment was based; 3) bona fide change in ownership or management; or 4) elimination or other grounds for which the debarment was imposed.

B. Initiation Of Modification Of Decision: Such modification of the debarment decision may be initiated by the debarred person upon request by the debarred person submitted to the debarment hearing board. Such request by the debarred person shall be in writing and accompanied by supporting documentation.

C. Action By Board Within Reasonable Time: The debarment hearing board shall act upon any such written request submitted by a debarred person within a reasonable time after receipt of the request and shall promptly notify the debarred person of the decision made on such request.

D. Appeal To Council: The debarred person may appeal the debarment hearing board's decision to the city council, following the procedures specified in section 2-125 of this article. (Ord. 1705 § 1, 10-3-2006)

2-125: APPEALS TO CITY COUNCIL FROM CERTAIN DECISIONS OF DEBARMENT HEARING BOARD:

A. Right To Appeal: If a debarment hearing board has made a determination to debar a person permanently, that person may appeal that decision to the city council in accordance with procedures set forth in this article and procedures adopted by the city council.

B. Time Limit For Requesting Appeal: A person who has been debarred may request an appeal to the city council no later than five (5) working days from the date of the notice of the debarment hearing board's debarment decision. The debarred person's request for appeal shall set forth in detail the reasons why the person disagrees with the decision. The person shall file the notice of appeal with the city clerk, who shall calendar the appeal hearing in front of the city council after consultation with the city manager and mayor.

C. Appeal Request Does Not Stay Decision: The filing of a request for an appeal shall not stay the debarment decision. (Ord. 1705 § 1, 10-3-2006)

2-126: SUBMISSION OF ARGUMENT ON APPEAL:

A. New Evidence Prohibited; Argument Supporting Appeal Allowed: At the city council hearing on the appeal, no new evidence may be presented by the city or any person. However, if the person who filed the appeal under section 2-125 of this article wishes to submit argument supporting the appeal, that person shall submit argument in writing with the city clerk no later than five o'clock (5:00) P.M., ten (10) calendar days prior to the date on which the hearing is scheduled to be held. Filing shall also be made on all persons subject to the debarment and on the debarment hearing board.

B. Filing By City Of Rebuttal Arguments: Where argument is submitted in accordance with subsection A of this section, the city may submit rebuttal arguments, which shall be filed with the city clerk no later than five o'clock (5:00) P.M., five (5) calendar days prior to the date on which the hearing is scheduled to be heard. Filing shall also be made on all persons subject to the debarment. (Ord. 1705 § 1,

10-3-2006)

2-127: STANDARD OF PROOF:

The standard of proof for the debarment hearing shall be a preponderance of the evidence. (Ord. 1705 § 1, 10-3-2006)

2-128: IMPUTATION OF KNOWLEDGE AND CONDUCT:

A. The fraudulent, criminal, or other seriously improper conduct of any officer, director, shareholder, partner, employee, or other individuals associated with a person may be imputed to the person when the conduct occurred in connection with the individual's performance of duties for, or on behalf of, the person, or with the person's knowledge, approval, or acquiescence. The person's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.

B. The fraudulent, criminal, or other seriously improper conduct of a person may be imputed to any officer, director, shareholder, partner, employee, or other individual associated with the person who participated in, knew of, or had reason to know of the person's conduct.

C. The fraudulent, criminal, or other seriously improper conduct of one person participating in a joint venture or similar arrangement may be imputed to other participating persons if the conduct occurred for, on approval of, or acquiescence of these persons. Acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence. (Ord. 1705 § 1, 10-3-2006)

2-129: JUDICIAL REVIEW:

Once a debarment hearing board or the city council has issued a final decision as provided in this article, the time in which judicial review of the order must be sought shall be governed by California Code of Civil Procedure section 1094.6. (Ord. 1705 § 1, 10-3-2006)

2-130: CREATION OF LIST OF DEBARRED AND SUSPENDED PERSONS:

A. Creation And Maintenance Of List: The city manager shall create and maintain a list of persons who have been debarred or suspended in accordance with policies and procedures of this article.

This list shall include the names and addresses of all persons who have been debarred or suspended.
For each debarred or suspended person, the list shall state the date of commencement and expiration of the debarment or

suspension.

B. Use Of List: The city manager shall establish procedures to provide for the effective use of the list to ensure that the city does not do business with persons who have been debarred or suspended. (Ord. 1705 § 1, 10-3-2006)

2-131: EFFECT OF DEBARMENT OR SUSPENSION:

A. Persons who have been debarred or suspended are excluded from conducting business with the city on behalf of themselves or as agents or representatives of other persons for the duration of the debarment or suspension.

B. Persons who have been debarred or suspended are excluded from submitting bids, directly or indirectly (e.g., through an affiliate), submitting responses to requests for proposal or qualifications, receiving contract awards, executing contracts, participating as a subcontractor, employee, agent or representative of another person contracting with the city, or receiving contracts for the period of debarment or suspension.

C. Persons who have been debarred or suspended are excluded from acting in a capacity where the person reasonably may be expected to submit offers for or be awarded, a contract, or a subcontract under a contract.

D. Persons who have been debarred or suspended are excluded from conducting business, or from acting in a capacity where the person reasonably may be expected to conduct business, with the city as an agent or representative of another person.

E. The management of a corporate or other legal entity that has been debarred or suspended shall not conduct business or act in a capacity where they reasonably may be expected to conduct business with the city under a different corporate name.

F. The city shall not accept, receive, open a bid, evaluate for award, or include any proposals, quotations, bids, or offers from any debarred or suspended person for the duration of the debarment or suspension.

G. The city shall not award or approve the award of a contract or execute a contract under which a debarred or suspended person is intended to participate as a subcontractor or material supplier.

H. A prime contractor who is awarded a contract shall not employ, subcontract with, nor purchase materials or services from a debarred or suspended person.

I. When a debarred person sells or otherwise transfers to a relative or to any other person over whose actions the debarred person exercises substantial influence or control, then that relative or other person is automatically suspended or debarred or proposed for debarment to the same extent as the seller or transferor is debarred, suspended, or proposed for debarment. (Ord. 1705 § 1, 10-3-2006)

2-132: EFFECT OF DEBARMENT OR SUSPENSION ON AN AFFILIATE:

A. If the city determines that a person is an affiliate of a person that is debarred, suspended or proposed for debarment, the affiliate is debarred or suspended to the same extent as the person that is debarred, suspended or proposed for debarment.

B. The affiliate debarred under subsection A of this section may request an appeal of the decision to the debarment hearing board by submitting a written request to the city clerk. An appeal under subsection A of this section shall be governed by the same rules and regulations in accordance with this article as are applicable to a debarment hearing board's procedure to debar a person.

C. The filing of a request for review under subsection B of this section shall not stay the decision to debar the affiliate. (Ord. 1705 § 1, 10-3-2006)

2-133: EFFECT OF DEBARMENT OR SUSPENSION BY ANOTHER GOVERNMENTAL AGENCY:

If a person has been debarred by another governmental agency, that person may be automatically debarred by the city manager permanently, or for three (3) years, or until the other governmental agency's term of debarment expires, in the sole discretion of the city manager. (Ord. 1705 § 1, 10-3-2006)

2-134: LIABILITY FOR INCREASED COSTS:

Any person who enters a contract with the city, either directly as a prime contractor or indirectly as a subcontractor, during a period of suspension or debarment imposed upon that person by the city under its rules and regulations, shall be liable to the city for increased costs incurred as a result of replacing the debarred or suspended person. (Ord. 1705 § 1, 10-3-2006)

2-135: EFFECT OF DEBARMENT OR SUSPENSION ON EXISTING CONTRACTS:

A. Except as otherwise provided in this section and notwithstanding the debarment, suspension, or proposed debarment, of a person, the city may continue contracts or subcontracts it has with that person that are in existence at the time the person was debarred, suspended, or proposed for debarment.

B. If the basis of a person's debarment or suspension is so serious that the city manager believes that termination of contracts or subcontracts the city has with that person that are in existence at the time the person is debarred or suspended is in the best interests of the city, the city manager may take actions necessary to terminate those contracts or subcontracts only after consultation with the city attorney to ensure the propriety and legality of the proposed action.

C. The city may continue to place orders against existing contracts, including delivery contracts, held by a debarred or suspended person, unless the contract has been terminated.

D. The city shall not renew or otherwise extend the duration of current contracts, or consent to subcontracts, with debarred or suspended persons, unless the city manager states in writing the compelling reasons for renewal or extension. (Ord. 1705 § 1, 10-3- 2006)

2-136: AGREEMENT NOT TO BID IN LIEU OF ONE YEAR DEBARMENT:

The city may, but is not required to, offer a person the opportunity to execute a written agreement not to bid for one year, in lieu of the city's pursuing a one year debarment under this article. By executing this agreement, the person shall consent to waive a debarment hearing as described in section 2-118 of this article, and this agreement will not constitute a debarment. (Ord. 1705 § 1, 10-3-2006)

2-137: AMENDMENTS AND COMPROMISES ALLOWED:

Nothing in this article is intended to prevent the city, in its sole discretion, from amending, modifying or waiving the provisions of any city contract, or from entering into compromise agreements with persons about the future performance of contracts by a city contractor. (Ord. 1705 § 1, 10-3-2006)

2-138: SEVERABILITY:

If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this article or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of the article or any part thereof. The city council hereby declares that it would have passed each section, subdivision, paragraph, sentence, clause, or phrase in this article or any part thereof irrespective of the fact that any one or more subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional, or invalid, or ineffective. (Ord. 1705 § 1, 10-3-2006)