Woodlake Municipal Code Ch. 2.36 Purchasing System

The provisions of this chapter are adopted in accordance with Sections 54201 through 54205 of the Government Code.

A. The city administrator shall have control of the city purchasing and contracting system, and may delegate such authority by written executive order as permitted by this code, resolutions, and rules and regulations promulgated in conformance therewith.

B. The city administrator is designated as purchasing officer and as such shall have all duties set forth herein. The city administrator shall function as such until his successor is appointed pursuant to Section 2.36.030.

(Ord. 530A § 1 (part), 1998)

Contracts and purchases made in accordance with Section 2.36.070 cumulatively totaling seventy-five thousand dollars ($75,000.00), or more, in any three-year period awarded to any one vendor or contractor are prohibited, such being evidence of "bid splitting," which practice is prohibited.

A. In such event vendor or contractor shall be required to comply with the competitive bidding process set out in this code prior to being awarded a further contact or purchase order within the three-year period.

B. Splitting contracts or purchases to avoid dollar limits set out in this chapter is prohibited.

(Ord. 530A § 1 (part), 1998)

There is created the position of purchasing officer. The duties of this officer (hereinafter described) shall be handled by the city administrator until such time as it may, in the opinion of the council, be advisable to appoint another individual as purchasing officer.

A. Purchase or contact for all supplies, equipment and contractual personal services, excluding professional services, needed by all city departments or agencies which derive financial support wholly or in part from the city, in accordance with purchasing procedures as prescribed by this chapter, relevant administrative regulations and such rules and regulations as the purchasing officer shall adopt and the city administrator approve;

B. Negotiate and recommend execution of contracts for the purchase of supplies and equipment and for the contacting for services from the lowest responsible bidder;

C. Act to procure for the city acceptable quality of supplies, equipment and services at the least expense to the city;

D. Discourage uniform bidding by purveyors and induce full competition on all purchases and for all purchases and contracts;

E. Adopt administrative regulations, subject to prior approval of the city administrator, including revisions and amendments thereto, governing the purchase of goods and the contracting for services or supplies and equipment for the city;

F. Keep informed of current developments in the field of purchasing and contracting, price, costs, market conditions, new products and new contractual situations prevailing in the industries which might be supplying goods or services to the city;

G. Prescribe, design and issue forms needed for the operation of the procedures and requirements set out in this chapter, and such other applicable rules as may seem necessary to fulfill the requirements of this chapter;

H. Regulate the transfer of surplus property between departments as needed, or sell or otherwise dispose of surplus property when designated as such by other department heads or city administrator;

I. Maintain a bidders list, vendors and contractors catalog file, and such other records as might be used in modern procurement;

J. Assure that every bidder complies with all applicable city, state and federal health, employee, safety and occupational laws and regulations;

K. Such other matters as shall be required to fulfill the requirements and procedures of this chapter, the City Charter and requirements of the city council and the city administrator.

L. When procuring for city equipment, the purchasing officer shall consider accessibility for persons with disabilities as a factor.

(Ord. 530A § 1 (part), 1998)

(Ord. No. 616, § 2, 11-13-2017)

Generally, the purchasing procedures of the city shall consist of the following:

A. Determination of requirements by the purchasing officer, in consultation with the requesting department heads;

B. The negotiation of or processing of appropriate procurement actions;

C. Referral of bids to using departments or agencies for analysis and recommendation;

D. Award of purchase order or contract to the lowest responsible bidder;

E. Supervision of receipt and acceptance procedures;

F. Approval of invoices for payment.

(Ord. 530A § 1 (part), 1998)

As needed, the purchasing officer, in conjunction with using departments or agencies, shall develop standard specifications for repetitively procured items and services.

A. Every specification shall be prepared to assure the broadest possible bidder participation, consistent with the needs of the using agency.

B. Alternative specification provisions for any particular bid invitation may be established with concurrence of the purchasing officer and the using department or agency.

(Ord. 530A § 1 (part), 1998)

Annually, as part of the city budget, city staff shall provide data, and by resolution, the city council may adopt new dollar limits affecting sections of this chapter in which dollar limits are set up, but not exceeding the amounts set forth in Sections 54201 through 54205 of the Government Code and Sections 2.36.070, 2.36.080 and 2.36.090 of this chapter.

A. Such dollar limits for purchases of goods and supplies shall be adjusted by the same percentage as the Municipal Price Index (MPS), as determined by City & County Magazine, shall have changed during the prior calendar year, either upward or downward.

B. Such dollar limits for construction and equipment purchases and contracts shall be adjusted by the same percentage as the McGraw Hill Index of Construction Prices shall have changed during the prior calendar year, either upward or downward.

(Ord. 530A § 1 (part), 1998)

The city administrator may delegate in writing to the department heads, purchasing officer or other city officer as he shall determine, the authority to make purchased and to contract for items and services involving less than twenty-five thousand dollars ($25,000.00). Such delegated authority shall be exercised as set out in this section, and shall be subject to other applicable provisions of this chapter.

A. Purchases under this section shall be based whenever possible on competitive quotations and award to the lowest responsible bidder.

B. Either verbal or written quotations shall be received from prospective vendors or contractors, and notations made thereof in every case involving any purchase or contract of amount greater than five thousand dollars ($5,000.00).

C. Verbal or written quotations shall be solicited and received from prospective vendors or contractors and made a part of the file for each, specific proposed acquisition of goods or services involving expenditures of five thousand one dollars ($5,001.00) up to and including twenty-five thousand dollars ($25,000.00).

D. A written and signed statement of the city officer or employee who made such solicitation shall be included as a part of each purchase order issued under the provisions of this section, which statement shall swear under penalty of perjury that the procedures set out in this section were complied with and that the award was made to the lowest responsible bidder.

E. Award of all contracts and purchases made pursuant to the procedures of this section shall be made to the lowest responsible bidder or vendor meeting specifications, except as specifically otherwise authorized by this chapter.

(Ord. 530A § 1 (part), 1998)

All purchases and contracts involving amounts between twenty-five thousand one dollars ($25,001.00) and seventy-four thousand nine hundred ninety-nine dollars ($74,999.00) shall be purchased and contracted for only under the procedures set out in this section.

A. Award of all contracts and purchases made pursuant to the procedures of this section shall be made to the lowest responsible bidder or vendor meeting specifications, except as specifically otherwise authorized in-this chapter.

B. Written quotations shall be secured in all cases from at least three prospective and qualified vendors or contractors, and such quotations shall be made a part of the file of each purchase made or contract awarded under this section. Such file shall be maintained for three years after award of the contract or· purchase order.

(Ord. 530A § 1 (part), 1998)

The procedure set out in this section shall be utilized for all purchases or contracts involving amounts of seventy-five thousand dollars ($75,000.00) or more.

A. Award of all contracts and purchases made pursuant to the procedures of this section shall be made to the lowest responsible bidder meeting specifications, except as specifically otherwise authorized by this chapter.

B. Written specifications and plans, if appropriate, shall be prepared for all purchases proposed to be made and contracts proposed to be awarded under this section. Such specifications and plans, together with the deadline for and place to file sealed bids with the city, and other requirements, shall be circulated to publications appropriate to the subject of the call for bids, posted at City Hall, and advertised in a legally adjudicated newspaper in geographic areas appropriate to reaching prospective bidders.

C. Such notices and advertisements shall be designed to cause full public notification of all calls for sealed bids by providing at least ten days written notice to prospective bidders prior to the proposed deadline for the receipt of sealed bids.

D. Sealed bids shall be accompanied by a bid bond or cashiers check in amount set forth by the city administrator, and failure to include such bid bond or cashiers check with any bid shall be disqualifying.

E. Sealed bids shall be received and opened by the city official designated by the bid call, at the place an time specified in said bid call.

F. A written analysis shall be made of all sealed bids received under the procedures of this section, and shall contain information relative to all bidders, including a recommendation by the affected department head and the city administrator as to which bidder is recommended to be the lowest responsible bidder.

G. The city council shall award, or may reject, all purchases or contracts developed under the procedures of this section and proposed to be awarded pursuant to this section.

H. All bid calls shall contain a statement that the city council may reject any and all bids for any goods or service, and may cancel any call for bids at any time in the process.

I. At the option of the city administrator an alternate purchasing and contracting procedure may be followed for any specific purchase or construction contract bid process, which procedure would follow California Government Code Sections 54205, or appropriate Public Contract Code provisions. The use of such alternate procedure shall be solely discretionary to the city council or city administrator, and generally will not be followed, merely being an optional procedure which might be utilized, if desired.

(Ord. 530A § 1 (part), 1998)

The acquisition of copyrighted and/or patented items and services for which there is no reasonable alternative which is of equal to or of better quality or nature shall be made by following the procedures set out in this section.

A. The purchase order or contract award for such professional or specialized services or materials shall have a copy of a statement attached thereto by both the vendor or contractor and the city administrator stating the reasons and the specific copyright or patent circumstances which have given rise to the invoking of this exception to the competitive acquisition process set out in this chapter. The original of such statement shall be filed with the city clerk.

B. Professional or specialized services which involve a qualitative judgment in addition to qualitative and dollar amount shall be involved when the procedure set out in this section is utilized.

C. When this exception to the competitive purchasing and contracting procedures set out in this chapter is utilized, a written finding shall be filed with the contract and the city clerk regarding the reason for such noncompetitive acquisition and, further, the process utilized in the selection of contractors to be interviewed, the interview process used, those firms contacted and interviewed, and the results of such interviews, cumulatively which shall have resulted in the decision to award the contract to which the contract was subsequently awarded.

D. The criteria utilized for exception to the competitive process of this chapter in subsections B and C of this section:

1. Shall be a requirement for specialized abilities and knowledge in addition to qualify and price;

2. Shall not be utilized without the prior written approval of the city administrator.

E. Professional services means work performed by specially trained and experienced persons, firms or corporations rendering professional services and advice such as accounting, auditing, financial advisory, securities underwriting, legal, medical, engineering, architectural, environmental, economic, real estate, insurance, appraisals, lobbying, public relations, ordinance codification and publication, or similar such highly specialized services.

(Ord. 530A § 1 (part), 1998)

All supplies, equipment, construction and service for federally-assisted grant or loan programs shall be procured in accordance with Part 200 - Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards (2CFR Part 200). Subpart D, Section §200.31 to §200.326.

(Ord. 530A § 1 (part), 1998)

(Ord. No. 632, § 2, 4-13-2020)

The using department or agency shall inspect all goods and equipment, and:

A. Certify to the finance director that all goods and services received conform in quality and quantity with the specifications accompanying the purchase order for such goods and services;

B. Before payment is authorized, satisfactory receipt of goods and services must be certified as prescribed in the administrative regulations governing processing of purchase orders and contracts.

(Ord. 530A § 1 (part), 1998)

Without complying with other sections of this chapter, the purchasing officer may participate in, sponsor, conduct or administer a cooperative purchasing agreement for the procurement or any supplies, equipment, service or construction with one or more public procurement units, in accordance with an agreement entered into between the participants.

A. Such cooperative purchasing may include, but not limited to joint or multiparty contracts between public procurement units; and

B. Open-ended state public procurement contracts which are made available to the city.

(Ord. 530A § 1 (part), 1998)

The provisions of this chapter may be waived when the following circumstances exist:

A. During emergencies which have been declared by a unanimous vote of the city council, or by order of the Governor or President, which emergency shall encompass the city and/or its services.

B. An emergency determined by the city administrator and the purchasing officer if:

1. There is a great public calamity; or

2. There is immediate need to prepare for national or local defense; or

3. There is a breakdown in machinery, equipment or essential service which requires immediate purchase of supplies and equipment to protect public health, welfare or safety; or

4. An essential departmental operation affecting the public health, welfare or safety would be greatly hampered if the prescribed purchase would cause an undue delay in procurement of the needed item or service.

C. A statement of the nature of the declared emergency shall be attached to each purchase order issued pursuant to the provisions of this section.

D. The purchasing officer is authorized to make emergency purchases for all supplies, equipment and services which cost ten thousand dollars ($10,000.00) or less, the city administrator is authorized to make such purchases which cost twenty-five thousand dollars ($25,000.00) or less, but the city council shall authorize any such purchases in amount exceeding twenty-five thousand dollars ($25,000.00).

(Ord. 530A § 1 (part), 1998)

To promote the economic health of the city and to encourage local participation in the city procurement process, the city, in determining the lowest responsible bidder, may take into consideration the sales tax which would be returned to the city, as well as reduced delivery costs, service and any other savings features that are known of as a result of the award to a bidder who has an established place of business within the Woodlake City limits.

(Ord. 530A § 1 (part), 1998)

Selected commodities with recurring high usage rates may be stocked and issued from central stores under the direction and control of the purchasing officer.

A. The purchasing officer shall examine usage rates for various commodities and, in coordinating with using department, expend or reduce the quantities and types of items in such central stores.

B. Central stores items shall be replenished as needed from the purchasing revolving account through regular purchasing procedures.

C. Inventory levels of commodities on hand in central stores shall be determined by the purchasing officer, based on economic and demand factors.

D. Detailed instructions for ordering and accounting methods for such central stores shall be set forth in administrative regulations governing such operation.

(Ord. 530A § 1 (part), 1998)

Purchase of supplies and equipment and the award of public works contacts shall be made in accordance with prescribed administrative regulations governing the preparation and issuance of purchase orders. Except as otherwise prescribed in this chapter, the administrative regulations governing purchasing and contracting shall establish responsibilities for the signing and processing of purchase orders, and no exceptions may be made unless specifically provided for in said regulations.

(Ord. 530A § 1 (part), 1998)

All using departments or agencies shall file detailed estimates of their requirements for supplies and equipment in such a manner, at such a time, and for such future periods as the purchasing officer may request.

(Ord. 530A § 1 (part), 1998)

Each using department or agency shall submit at lest annually to the purchasing officer, or more often if required, in the form and manner he shall prescribe, reports describing all supplies, equipment, materials, fixtures and other personal property of the city in the custody of the department or agency which personal has become obsolete or unserviceable.

A. Subject to the provisions of subsection E of this section, the purchasing officer is authorized from to sell or to exchange any and all such supplies or unserviceable equipment, materials, fixtures and other personal property of the city, including trade-in value if such property is to be replaced.

B. The purchasing officer may sell for the best price obtainable on the open market or, when he deems it advisable, to the highest bidder at public sale, or he may exchange such surplus property for credit on other property.

C. In the event the purchasing officer determines that any such obsolete or surplus property has no salvage value he may dispose of it as he deems advisable.

D. All sales of such surplus or obsolete personal property shall be for cash or certified check or money order payable to the city.

E. The purchasing officer shall have authority to sign bills of sale and any other papers or documents for and on behalf of the city evidencing transfer of title of the property.

F. Prior to disposing of any obsolete or surplus personal property having an apparent market value in excess of twenty-five thousand dollars ($25,000.00) the purchasing officer shall inform the city council of the nature of the personal property proposed for disposition and the price offered and shall obtain the council's approval for such disposition.

(Ord. 530A § 1 (part), 1998)

The city administrator may determine which public works projects may be performed by city forces, or what portions of any public works project which is to be bid to be performed by city forces and thus excluded from such bid process.

A. Such determination shall be made by the city administrator after consultation with the appropriate city department head, and shall take into consideration the skills and abilities, wage and benefit rates, and time availability of the specific city employees who would be involved in such specific public works project.

B. Reasons for the decision made by the city administrator shall be filed with the bid documents should such project be performed in part by city forces, and in the construction files for the project should such public works project be performed in whole by city forces.

(Ord. 530A § 1 (part), 1998)

All public works projects proposed to be let based upon sealed bids, pursuant to the procedure set forth in Section 2.36.090 of this chapter, shall have as a part of the call for bids a statement by the city administrator, or his nominee, concerning the requirement of the payment of prevailing wages to be paid by bidders and his subcontractors. All public works projects shall have as a part of its bid call, a provision stating that the wages shall be paid as determined by the state of California, Department of Labor, and commonly referred to as "prevailing wages."

(Ord. 530A § 1 (part), 1998)

Purchase contracts to supply the city's needs may be entered into for up to three years for specified types and groupings of goods or services, provided that the procedures of this chapter are complied with.

(Ord. 530A § 1 (part), 1998)

In absence of council action prohibiting such activities, all purchase contracts to supply the city's needs may be entered into for specified types and groupings of goods or services, provided that all provisions of this chapter are otherwise complied with.

(Ord. 530A § 1 (part), 1998)

All contracts for the construction of a public works project in an estimated amount of seventy-five thousand dollars ($75,000.00) or greater shall require the contacting party to furnish security for the completion of the project and the payment of labor, materials and equipment.

A. The provisions of Chapter 5 of Division 2 of Title 7 of the California Government Code (Sections 66499 through 66499.10) as the same now reads or is hereafter amended shall govern the kind of security (G.C. Section 66499); the form of bond (G.C. Section 66499.1 and 66499.2); the amount of the security (G.C. Section 664.99.3); the costs, expenses, and fees included in the amount of the security (G.C. Section 66499.4); the provisions for reduction of improvement security (G.C. Section 66499.5); exemption of security from enforcement of money judgment (G.C. Section 66499.6); release of security (G.C. Section 66499.7); restriction on release of security (G.C. Section 66499.8); limitation on security on security liability (G.C. Section 66499.9); and party against whom suit on security maintained (G.C. Section 66499.10).

B. Said Government Code provisions are incorporated in this section of this chapter by reference, as if fully set forth herein.

(Ord. 530A § 1 (part), 1998)

Changes in the general method or policy of purchasing and contracting by the city and the operation of central stores, shall be made only by amending this chapter. Changes affecting only the details or forms used in the administration of these provisions concerning purchasing officer or city manager as administrative revision to the pertinent procedural regulations.

(Ord. 530A § 1 (part), 1998)

For the purpose of this chapter, the following definitions shall apply:

A. "Affiliates": Persons are "affiliates" if:

1. One person directly or indirectly controls or has the power to control or influence the decision making of the other;

2. A third person controls or has the power to control or influence the decision making of both; or

3. The person(s) has the same or overlapping management, ownership or one or more of the same principals as the other person.

4. Indicia of control include but are not limited to: interlocking management or ownership, identity of interests among family members, shared facilities and equipment or common use of employees.

B. "City administrator" means the city administrator of the city or designee.

C. "Contract" shall include, but not be limited to, city contracts, leases, licenses, agreements, purchase orders or lease-purchase agreements for the acquisition of:

1. Supplies, materials or equipment;

2. Professional or nonprofessional services;

3. Public works or construction projects;

4. Insurance policies or bonds provided in connection with a public works or construction project, a city-sponsored activity or event or a privately-sponsored activity or event at a city-owned, operated or controlled facility; and

5. Other goods and services.

D. "Disqualification": The terms "disqualification" or "disqualified" means the action taken pursuant to this chapter or by another local, state or federal agency, to disqualify, suspend, prohibit, debar or render a person ineligible to bid upon, solicit, be awarded or perform public contracts or any portion thereof.

E. "Hearing officer" shall mean the person appointed by the city administrator to administer the disqualification procedures set forth in this chapter. The hearing officer need only be a neutral third party and may, but is not required to be, a professional mediator/arbitrator.

F. "Lowest responsible bidder" means the lowest bidder, not disqualified, whose offer best responds in quality, fitness and capacity to the requirements of the proposed work or usage, as specified. In determining the lowest responsible bidder the following shall be considered, in addition to price:

•

The quality of supplies offered;

•

The ability, capacity and skill of the bidder to perform the contract or to provide the supplies or services required;

•

Whether the bidder can perform the contract or provide the supplies or services promptly, or within the time specified, without delay or interference;

•

The sufficiency of the bidder's financial resources and the effect thereof on his ability to perform the contract or to provide the supplies or service;

•

The character, integrity, reputation, judgment, experience and efficiency of the bidder;

•

The quality of the bidder's performance on previous orders or contracts for the city;

•

Litigation by the bidder on previous orders or contacts with the city;

•

Previous and existing compliance by the bidder with local laws and ordinances relating to the subject of the purchase or contact;

•

The ability of the bidder to provide future maintenance and service where such maintenance and service is essential.

G. "Person": The term "person" means any person, individual, group, association, firm, corporation, partnership, joint venture company, sole proprietorship or other entity.

H. "Predecessor-in-interest" means a person whose rights, property or assets and/or debts or obligations are acquired or assumed by another person.

I. "Principal" means any officer, director, owner, partner, joint venturer, shareholder, responsible managing officer, responsible managing employee or person with primary management or supervisory responsibilities, including any person who has a substantial influence or substantive control over performance of a contract.

J. "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.

K. "Successor-in-interest" means a person who acquires the rights, property or assets and/or assumes the debts or obligations of another person.

(Ord. 530A § 1 (part), 1998)

(Ord. No. 647, § 2, 7-24-2023)

No member of the Woodlake city council and no other official, employee, or agent of the city government who exercises policy or decision-making functions or who has responsibilities in connection with the planning and implementation of federally funded programs shall be directly or indirectly eligible for said program unless the application has been reviewed and approved in accordance with the regulations of the specific federally funded program. This ineligibility shall continue for one year after an individual's relationship with the city ends.

A contractor with a vested interest in a property cannot bid on a rehabilitation job for said property. Such a contractor may act as an owner-builder, subject to standard construction procedures. Owner-builders are reimbursed for purchases of materials used on the job which are verified by invoice or receipt. Reimbursement occurs after installation is verified to be part of the scope of work by the construction supervisor. Owner-builders are not reimbursed for labor.

(Ord. 539 § 1, 2000)

A. Effect. The provisions of this section are intended to determine in advance of submittal of bids or proposals on city contracts whether a person has the necessary qualifications, fitness, capacity, integrity and trustworthiness to perform city contracts. 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 person submitting the bid or proposal has the requisite qualifications, fitness, capacity, trustworthiness and integrity needed to perform the contract.

1. Notice. Whenever notice is required to be given under this section, it shall be deemed effective on the day such notice is either personally delivered or deposited in the United States Mail, first class postage prepaid and addressed to the last known address of the person to be notified.

2. Grounds for disqualification. Disqualification may be imposed on a person by the hearing officer in accordance with the procedures established by this chapter on one or more of the following grounds:

A. Commission by such person 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 indicating a lack of integrity or honesty.

C. Submission of a bid, proposal, insurance policy, bond, guarantee or other document that is known, or should be known, by such person to be false, misleading, or non-meritorious or to contain false information, or is determined to be a deliberate attempt to circumvent the intent of this chapter.

D. Submission of any false, misleading, or non-meritorious claim, demand or lawsuit against any private party or public agency, including the city.

E. Pending litigation between the person 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 a 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 a public contract.

H. Current or past suspension or disqualification from award or performance of a public contract by any local, state or federal agency.

I. Knowingly doing business with a disqualified third person in performance of any public contract awarded after disqualification of said third person.

J. Substandard performance on any public contract, including, without limitation:

1. A material breach thereof;

2. A demonstrated consistent failure to adhere to contractual terms, procedures, or performance requirements, but which may not rise to the level of a material breach;

3. 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 person or such person's subcontractors or suppliers;

4. Substandard quality of work; or

5. Any negligent or wrongful failure to cooperate with the contracting agency during performance of the public contract.

K. 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.

L. Failure to have or maintain in good standing all necessary licenses, permits or other approvals required to transact business within the State of California.

M. One or more violation of any law or regulation governing the handling, transfer, storage or disposal of hazardous materials or hazardous wastes.

N. One or more violation of any law or regulation governing the handling, transfer, storage or disposal of solid waste generated during the performance of such public contract.

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

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

Q. Any other ground that the hearing officer determines that would impair the ability of the person to perform a public contract or any part thereof.

3. Existence of grounds.

A. Existence of grounds for disqualification as described in this chapter may be determined to exist by the hearing officer by a preponderance of the evidence if, not more than ten years prior to the date that a written notice of proposed disqualification is provided to such person pursuant to this chapter:

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

2. A civil judgment has been entered against such person for any act or omission described in this chapter;

3. A penalty or sanction including, without limitation, monetary penalties, imprisonment and other sanctions, such as disqualification, has been imposed on such person by a federal, state or local agency for any act or omission described in this chapter; or

4. Such person has committed one or more acts or omissions described in this chapter, based on a preponderance of evidence in the record of facts and information presented to the hearing officer.

B. An act or omission described in this chapter may be imputed to a person who is the subject of a proposed disqualification when such act or omission is committed for or on behalf of such person, and such person had actual or constructive knowledge of such act or omission.

C. In determining whether to disqualify a person and the duration of such disqualification, the hearing officer may consider, in addition to any other relevant factors, one or more of the following:

1. The degree to which the person cooperated with local, state or federal authorities in any criminal proceeding forming the basis for disqualification;

2. The degree to which the person provided restitution for any damages or injury occasioned by the person's acts or omissions;

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

4. Whether the person provided timely notice of such acts or omissions to the appropriate government agency or agencies;

5. Whether the person fully investigated the circumstances surrounding such acts or omissions and promptly provided the city with the result of the investigation;

6. Whether the person took appropriate remedial or disciplinary action against the individuals responsible for such acts or omissions;

7. Whether the person implemented or agreed to implement remedial measures to 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; and

8. Whether the person had adequate time to eliminate or mitigate the circumstances or factors leading to or causing such acts or omissions.

D. The City shall have the initial burden of proof to establish the grounds for disqualification.

4. Scope of disqualification.

A. Disqualification of a person under this chapter constitutes disqualification of that person from submitting bids or proposals to the city for the purpose of entering into or in any manner participating in any city contract, or any part thereof, and shall apply to all individuals, divisions, subsidiaries, affiliates and parent corporations of that person unless the decision to qualify is limited by its terms to one or more specifically identified individuals, divisions, subsidiaries, affiliates, parents or other organizational elements.

B. The disqualification of a person shall apply to any existing affiliate of the person where the affiliate is specifically named and given notice of the proposed disqualification and an opportunity to respond. The disqualification shall also apply to any successor-in-interest or any affiliate of the disqualified person formed during or after the disqualification proceedings.

C. Disqualification of any person shall apply to any business entity, whether or not such business entity was in existence at the time of such disqualification, for which the disqualified person acts as a principal during the disqualification period.

D. The hearing officer shall determine the length and scope of the disqualification. The scope of the disqualification may include disqualification as to certain work, as to general or subcontracting, or any other limitation.

5. Period of disqualification. The disqualification period shall be commensurate with the severity of the person's acts of omissions, as determined by the hearing officer. However, disqualification may include a lifetime disqualification of any person or entity, including, but not limited to, their subsidiary, affiliate, officer, shareholder, or other agent.

6. Disqualification procedures.

A. Prior to disqualifying any person under this chapter, the hearing officer shall mail or deliver by personal service a written notice of the proposed disqualification to the person proposed to be disqualified, hereinafter referred to as "respondent." Such notice shall contain the following:

1. Notice that a disqualification is being considered;

2. The grounds for the proposed disqualification, 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 disqualification;

4. A summary of the disqualification procedures set forth is this chapter; and

5. The name and address of the hearing officer to which the respondent may submit a written request for a hearing on the proposed disqualification.

B. Within fifteen (15) days after personal service or mailing of the notice of the proposed disqualification, the respondent or the respondent's representative may submit a written request for a hearing on the proposed disqualification. Such written request shall specify the name and address of the person to which all subsequent notices and communications should be mailed. Failure of the respondent or respondent's representative to submit a written request for a hearing within the time provided by this subsection, or failure of respondent or respondent's representative to appear at the requested hearing, shall be deemed to be a waiver by respondent of respondent's right to request a hearing on the proposed disqualification and the hearing officer's decision shall be final.

C. If the respondent requests a hearing in accordance with subsection B of this section, the hearing officer shall schedule a hearing at which the respondent or the respondent's representative shall have an opportunity to provide relevant information and argument, including the presentation and questioning of witnesses, to the hearing officer. The hearing officer shall provide the respondent with written notice of the time, date, and location of such hearing, which shall be held no sooner than five days from the date of such notice.

D. The formal rules of evidence shall not apply during the hearing. The hearing officer may admit into evidence all relevant evidence, including the affidavits or declarations of witnesses; limit the scope of discovery; shorten the time to produce records or witnesses; 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. The hearing shall be open to the public.

E. The proceedings at the hearing may be tape-recorded if ordered by the hearing officer or requested by the respondent. 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 the tape 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. Following the hearing, the hearing officer shall render a decision on the proposed disqualification. The decision shall be in writing and shall specify the reasons therefor. If the hearing officer upholds the disqualification, the notice of decision shall specify the length of the disqualification period and notify the respondent of his or her right to appeal the decision pursuant to subsection G, below.

G. The respondent shall have ten days from the date of the hearing officer's decision to appeal the decision to the city administrator. The appeal shall be in writing and shall be received by the city administrator by the close of business not later than the tenth day following the date of the hearing officer's decision except that, if such date falls on a Saturday, Sunday or city holiday, the appeal period shall be extended to the close of business on the next regular business day.

7. Appeal to the city administrator.

A. Upon the timely receipt of an appeal, the hearing officer's decision shall be abated and the city administrator shall schedule a time at which the respondent or the respondent's representative shall meet with the city administrator to explain why the hearing officer's decision should be set aside or modified.

B. Evidence or testimony not previously presented to the hearing officer shall not be permitted at the meeting unless the city administrator determines, in his or her sole discretion, that the interest of justice requires the consideration of such new evidence or testimony.

C. If ordered by the city administrator, the proceedings may be tape-recorded or transcribed in the manner described in the prior section.

D. At the conclusion of the meeting, the city administrator shall render a decision to uphold, modify, or set aside the hearing officer's decision and shall provide written notice of the decision to the respondent or the respondent's representative. If the city administrator determines to uphold the hearing officer's decision to disqualify the respondent, the disqualification period shall commence from the date of the city administrator's decision.

E. The city administrator decision shall be final, except a review as provided in the following section. Any appeal of the city administrator's decision shall be made to the Superior Court within ten days from the date of the city administrator's decision.

8. Review of decision.

A. The city administrator or hearing officer's decision to disqualify a person as provided herein may be modified or vacated by the city administrator or hearing officer, as the case may be, if, in his or her sole judgment, good cause exists for such modification or vacation. Good cause for review may be based on one or more of the following reasons:

1. Newly-discovered, material evidence not previously available to the parties.

2. Final, judicial reversal of a conviction or civil judgment upon which the disqualification was based.

3. A bona fide change in ownership or management of the respondent's business.

4. Elimination of the grounds upon which the disqualification was based.

B. The respondent shall have no right of review by the city administrator or hearing officer. Such review shall be at the city administrator or hearing officer's sole discretion.

C. A request for review shall be submitted by the respondent or the respondent's representative in writing and shall be accompanied by competence evidence in support thereof. Upon receipt of the request, the City Administrator or Hearing Officer, as the case may be, shall respond within a reasonable period of time as to whether the decision will be reviewed. The City Administrator or Hearing Officer's denial of such request shall be non-appealable and not subject to judicial review.

D. If the city administrator or hearing officer agrees to review the decision, he or she shall render a written decision within a reasonable time thereafter. The decision shall be final and delivered to the respondent or respondent's representative.

9. Requirement to submit information. The city may require any person submitting a bid or proposal on a city contract to submit the following as part of such bid or proposal:

A. A statement under penalty of perjury, that neither such person, including any principal, affiliate or predecessor-in-interest of such person, nor any subcontractor, supplier or surety engaged or to be engaged by the person:

1. Is currently disqualified or has been disqualified at any time during the preceding ten years, from submitting a bid or proposal on a contract by any federal, state or local agency.

2. Has, at any time during the preceding ten years, been convicted of any offense, been subject to a civil judgment or been subject to a penalty or sanction by any federal, state or local agency for any act or omission described in this chapter.

B. Any other information or documentation deemed necessary to determine the person's eligibility to submit a bid or proposal on a city contract.

10. Doing business with a disqualified person. In performance of any city contract, no person having actual or constructive knowledge shall utilize the services of any person who is currently disqualified pursuant to this chapter. No person having actual or constructive knowledge shall use or list, in any bid or proposal for a city contract, any subcontractor, supplier, insurer or surety who is currently disqualified pursuant to this chapter. Violation of this section may result in rejection of the bid or proposal, nonpayment by the city for work performed by such person, annulment of award or termination of an award of contract, issuance of a stop work order, disqualification from submitting future bids or proposals on city contracts, or any other remedy provided by law.

A person who uses or lists a disqualified subcontractor, supplier, insurer or surety without having actual or constructive knowledge of such disqualification shall be allowed to substitute the disqualified subcontractor, supplier, insurer or surety in accordance with State law or, if not applicable, the provisions of the contract governing contract changes.

11. Existing contracts.

A. The city shall not renew or extend the term of any contract(s) with any person who is disqualified in accordance with this chapter, or who utilizes the services of any supplier, subcontractor, insurer or surety who is disqualified in accordance with this chapter, unless the city administrator determines that such renewal or extensions is in the best interest of the city.

B. Notwithstanding the disqualification of any person, the city may, at its sole option, elect to continue a contract in existence at the time the person is disqualified, unless the City Administrator determines that termination of such contract is in the best interest of the city.

12. List of disqualified persons.

A. The city administrator shall maintain a list of all persons who are currently disqualified by the city pursuant to this chapter and the effective dates of such disqualification. Such list shall not include a person disqualified by another local agency or the state or federal government unless the person has been disqualified by the city under this chapter. Such list shall be filed with the city clerk, who shall make the list 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 as to the persons who have been disqualified from submitting bids or proposals on city contracts or who are ineligible to participate in such contracts.

(Ord. No. 647, § 2, 7-24-2023)