Salinas Municipal Code § 12-41 Appeal time limits

(a) Findings. The city council of the City of Salinas finds and declares as follows:

(1) Unemployment rates in Monterey County have been consistently higher than in California as a whole. The average annual unemployment rate in Monterey County in 1995 was 12.5 percent. The unemployment rate fluctuates seasonally because of the seasonal nature of many of the major industries in the county such as agriculture, food processing, construction, and tourism, with unemployment reaching as high as 19.1 percent in January 1995, for example. Closures of large food processing plants since 1980 and the downsizing and conversion in use of Fort Ord have also resulted in job layoffs. (Source: 1996 Annual Report of the Monterey County Overall Economic Development Commission, June 1996.)

(2) The economy and employment in the county have begun to improve. For example, from February 1996 to June 1996, the number of jobs in the county increased in the farm sector as well as in the service and retail trade sectors. However, the number of jobs in the construction industry during the period did not grow. (Source: 1996 Annual Report of the Monterey County Overall Economic Development Commission, June 1996.)

(3) The Monterey County overall economic development commission has concluded that Monterey County needs an expanding employment base; most employment opportunities in the county arise when existing jobs become vacant, whereas expansions account for new job creation in other areas. (Source: 1996 Annual Report of the Monterey County Overall Economic Development Commission, June 1996, p. 18.)

(4) A policy that encourages contractors who receive city public works contracts to hire residents of the Monterey Bay Area will benefit the city as a whole. The policy will provide job opportunities to city residents, expand the city's employment base, and lessen the drain on public assistance resources caused by high unemployment.

(b) Unless such provision would conflict with a state or federal law or regulation applicable to a particular contract for public works or improvement, all city contracts for public works or improvement subject to competitive bidding requirements shall contain provisions pursuant to which the contractor promises to make a good faith effort, with the assistance of local labor union hiring halls, to hire qualified individuals who are residents of the Monterey Bay Area in sufficient numbers so that no less than fifty percent of the contractor's total construction work force, including any subcontractor work force, measured in labor work hours, is comprised of the Monterey Bay Area residents.

(Ord. No. 2330 (NCS), § 1.)

Unless the context otherwise requires, the following definitions shall govern the construction of this article:

"Contractor" means any person or entity, which, pursuant to a written agreement or purchase order, provides labor or materials on public works projects for the city.

"Days" means calendar days unless otherwise specified.

"Qualified individual" means an individual who is in a certified state or federally approved apprenticeship program in an applicable trade or has become a journeyperson in his or her applicable trade. A journeyperson shall demonstrate proof of five years experience in each applicable trade by declaring under penalty of perjury that his or her sworn statement of experience is complete and correct.

"Monterey Bay Area" means Monterey County, San Benito County and Santa Cruz County.

"Resident of the Monterey Bay Area" means an individual who is domiciled within the boundaries of the Monterey Bay Area immediately preceding the date of the bid advertisement by the city and who can verify his or her domicile upon request of the contractor or city by producing documentation such as rent/lease agreement, telephone and utility bills or payment bills, a valid California driver's license or identification card, and/or any other similar, reliable evidence that verifies that the individual is domiciled within the Monterey Bay Area. A worker who is a building trade journeyman or building trade apprentice whose local hiring hall has jurisdiction over the Monterey Bay Area is also deemed a resident of the Monterey Bay Area.

"Subcontractor" means any person or entity, which, pursuant to an agreement or purchase order with a city contractor or another subcontractor, participates in the provision of labor or materials on public works projects for the city.

(Ord. No. 2330 (NCS), § 1.)

(a) The contractor shall keep an accurate record on a standardized form showing the name, place of residence, trade classification, hours employed, proof of journeyperson or apprenticeship status, per diem wages and benefits of each person employed by the contractor, and the contractor's subcontractors, on the specific public works project, including full-time, part-time, permanent and temporary employees and make such records available to the city, upon request, within five working days.

(b) The contractor shall keep, and provide to the city, on forms acceptable to the city, an accurate record documenting compliance with this article. Said records shall include; a listing by name and business address of all local recruitment sources contacted by the contractor, the date of the local recruitment contact and the identity of the person contacted, the trade and classification and number of hire referrals requested, the number of local hires made as a result of the contact, the identity and business address of the person(s) hired pursuant to the contact.

(Ord. No. 2330 (NCS), § 1.)

All forms required under this article shall be attested to as true as to the information set forth therein and shall be submitted under penalty of perjury.

(Ord. No. 2330 (NCS), § 1.)

(a) The good-faith local hiring provisions of this article shall bind the contractor both with respect to persons hired directly by the contractor and to all persons hired by the contractor's subcontractors. The contractor shall be responsible for assuring that all subcontractors document said compliance by submitting the forms required by Section 12-30 to the city.

(b) The contractor shall include the following language and a copy of this chapter as may be amended from time to time in all contracts with contractor's subcontractors: "This contract is for labor or materials for a City of Salinas public works project. As a subcontractor on a City project, you are required to comply with all of the requirements of the Salinas local hiring preference ordinance, Salinas City Code Chapter 12, Article IV, attached hereto and incorporated herein by reference. Failure to comply with the provisions of the local hiring preference ordinance may subject the contractor and/or subcontractor to criminal prosecution and/or disqualification from eligibility for City of Salinas contracts."

(Ord. No. 2330 (NCS), § 1.)

Should any bidder or its subcontractor fail to comply with the good-faith local hiring provisions of this article, in its bid submissions prior to awards, the bidder shall be declared by the city to be a nonresponsive bidder.

(Ord. No. 2330 (NCS), § 1.)

Where a city contractor or subcontractor has failed, or the city has cause to believe a bidder shall fail, to abide by a material term of the city contract, applicable prevailing wage laws called for by the contract, other applicable laws governing labor standards or working conditions, any of the provisions of this article applicable to contractors or subcontractors, or any of the other provisions of the code which expressly reference the sanctions provided for in this article, said contractor, subcontractor or bidder pursuant to procedures outlined in Section 12-35, shall be declared an irresponsible contractor.

(Ord. No. 2330 (NCS), § 1.)

If the city department head with responsibility for contract administration has cause to believe that any contractor or subcontractor has violated this article or that any bidder shall not perform the contract in compliance with this article, the department head may conduct an investigation. If, upon investigation, the department head determines that evidence exists to conclude that a violation of this article has occurred, or that cause exists to indicate a bidder will fail to perform the contract, the department head, after consultation with the city manager or city manager's designee, shall make a written finding of noncompliance which shall include a declaration of irresponsibility. The written finding of noncompliance shall provide the contractor, subcontractor or bidder with an opportunity to appeal the finding of noncompliance to the city council in accordance with Section 12-40 of this Code. If the council concurs with the finding of noncompliance, it shall affirm that finding along with the declaration of irresponsibility contained therein. The decision of the city council shall be final.

(Ord. No. 2330 (NCS), § 1.)

Any contractor, subcontractor or bidder declared to be irresponsible pursuant to the provisions of this article shall be disqualified from eligibility for providing goods, labor, materials or services to the city for a period of one year for the first violation and three years for a second, with a right of review and reconsideration by the city council after two years upon a showing of corrective action indicating violations are not likely to recur.

(Ord. No. 2330 (NCS), § 1.)

If the city attorney has reasonable cause to believe that any contractor or subcontractor has knowingly committed any of the acts or omissions set forth in this article, the city attorney may prosecute said contractor or subcontractor for violating the provisions of this article. Any such violation shall constitute an infraction. If the violation in question causes a loss to the city in excess of five thousand dollars, the city attorney may prosecute said violation as a misdemeanor.

(Ord. No. 2330 (NCS), § 1.)

(a) Contracts and bid documents shall incorporate this article by reference and shall provide that the failure of any contractor or subcontractor to comply with any of its requirements shall be deemed a material breach of contract or subcontract.

(b) Contracts and bid documents shall require bidders, contractors and subcontractors to maintain and submit records necessary for monitoring their compliance with this chapter.

(Ord. No. 2330 (NCS), § 1.)

Any contractor who has submitted a bid but is not the apparent lowest responsible bidder on a city contract may file a protest. The bid protest shall be filed with the city clerk within three working days of the bid opening. The city council shall hear the bid protest prior to adopting a resolution authorizing the bid award and execution of the contract. In cases where the contract is not executed by the city pursuant to city council resolution, the bid protest shall be heard by the city council prior to the time the city issues a notice to proceed or the appropriate city official executes the contract on behalf of the city. The protesting party may protest the bid award for the city's or successful bidder's failure to comply with the requirements of this article, the bid documents or any other applicable provision of this Code. The city council shall sustain a bid protest only if it finds evidence that award of the bid would violate the Code or other applicable law. The decision of the council shall be final.

(Ord. No. 2330 (NCS), § 1.)

To avoid results inconsistent with the purposes of this article, decisions of the department head or city manager, other than bid protests which are heard separately under Section 12-39, may be appealed by the affected contractor to the city council.

(Ord. No. 2330 (NCS), § 1.)

(a) Appeals by Contractor. Appeals of decisions shall be initiated within ten days of the decision. The city shall be considered an interested party.

(b) Time Limits. When the appeal period ends on a day when the city offices are not open to the public for business, the time limits shall be extended to the next full working day.

(Ord. No. 2330 (NCS), § 1.)

(a) Filing of Appeals. An appeal shall be filed with the city clerk on a form provided and shall state, as appropriate, any of the following:

(1) A determination or interpretation is not in accord with the purposes of this article;

(2) There was an error or abuse of discretion;

(3) The record includes inaccurate information; or

(4) A decision is not supported by the record.

(b) Effect on Decisions. Decisions that are appealed shall not become effective until the appeal is resolved.

(Ord. No. 2330 (NCS), § 1.)

(a) Appeal Hearing Date. An appeal shall be scheduled for a hearing before the council within thirty days of the city's receipt of an appeal unless the contractor and city consent to a later date.

(b) Notice and Public Hearing. An appeal hearing shall be a public hearing. Notice of the public hearing shall be mailed or delivered to the contractor within ten days.

(c) Hearing. At the hearing, the council shall review the record of the decision and hear testimony of the contractor and any other interested party.

(d) Decision and Notice. After the hearing, the council shall affirm, modify or reverse the original decision. When a decision is modified or reversed, the council shall state the specific reasons for modification or reversal. The city clerk shall mail notice of a city council decision. Such notice shall be mailed to the contractor within five working days after the date of the decision and to any other party requesting such notice.

(e) A decision by the council regarding an appeal shall become final on the date the decision is announced to the public.

(Ord. No. 2330 (NCS), § 1.)

The city manager shall adopt an administrative memoranda relating to rules, regulations and procedures to implement this article. The administrative memoranda shall be consistent with the provisions of this article.

(Ord. No. 2330 (NCS), § 1.)