This chapter shall apply to all public contracts let by the city, including, without limitation to, purchases and contracts for supplied and nonprofessional services, contracts for public projects, and agreements for professional services.
(Ord. 702 § 1, 2005)
For the purpose of this chapter, the following definitions shall apply:
"Affiliates"
mean persons who have the same or substantially the same management, ownership or control of one or more of the same principal employees as the other person.
"Debarment"
means any action taken by the city manager, or a hearing officer on appeal, pursuant to this chapter, or by another local agency or the state or federal government, to suspend or render a person ineligible to bid upon, be awarded, or perform subcontracts on, city contracts.
"Person"
means any person, individual, group, association, firm, corporation, partnership, company, or other entity.
"Predecessor-in-interest"
means a person whose rights or assets and/or debts or obligations are acquired or assumed by another person.
"Principal"
means any officer, director, owner, shareholder, partner, responsible managing officer or partner, 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.
"Public contract"
means any purchase contract or agreement, or any contract or agreement for construction of a public project or performance of professional or nonprofessional services, that is awarded or entered into by any federal, state or local agency, including the city.
"Successor-in-interest"
means a person who acquires the rights or assets and/or assumes the debts or obligations of another person.
(Ord. 702 § 1, 2005)
Notwithstanding any other provision of this code:
A. 
The city manager, or designated hearing officer, may debar any person from bidding upon or being awarded any contract or agreement with the city, or from being a subcontractor or supplier at any tier upon such contract or agreement, in accordance with the procedures established by this chapter.
B. 
During the time period that the debarment pursuant to this chapter of any person is in effect, the city shall not accept bids or proposals from, enter into contracts or agreements with, or allow performance of subcontracts or supply contracts by, such person, in accordance with the procedures established by this chapter.
C. 
During the time period that the debarment of any person by a state or federal agency is in effect, the city shall not, in conjunction with any city project receiving funds from such state or federal agency, accept bids or proposals from, contract with, or allow performance of subcontracts or supply contracts by, such person, whether or not such person has been debarred pursuant to this chapter.
(Ord. 702 § 1, 2005)
Whenever notice is required to be given under this chapter, it shall be deemed effective on the day such notice is either personally delivered or deposited in the U.S. mail, first class postage prepaid and addressed to the last known address of the person to be notified.
(Ord. 702 § 1, 2005)
Debarment may be imposed on a person by the city manager, or a hearing officer on appeal, in accordance with the procedures established by this chapter on any 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 federal, state or local law in connection with the bidding upon, award or performance of any contract, or
3. 
Embezzlement, theft, forgery, falsification or fabrication of records, or perjury;
B. 
Submission by such person of a bid, proposal, or other document pertaining to or required by a city contract or agreement, or pertaining to or required by any provision of this code, which is known by such person to be false or contain false information;
C. 
Such person knowingly doing business with a debarred third person in performance of any city contract or agreement awarded after debarment of said third person;
D. 
More than one occurrence of substandard performance by such person on any contract or agreement, including, but not limited to: (1) a material breach of the contract or agreement, (2) a failure to complete work required under the contract or agreement on time and/or within budget when such failure is attributable to such person's negligent or wrongful actions or inactions, (3) substandard quality of work, based on the industry standard, or (4) any negligent or wrongful failure to cooperate with the city such that timely, satisfactory completion of the work was jeopardized. The occurrences of substandard performance described herein may occur on the same contract or agreement or on different contracts or agreements;
E. 
One or more violations by such person, during the performance of any city contract or agreement, of any labor or safety statutes, regulations or standards including, but not limited to, applicable local, state or federal statutes, regulations or standards governing prevailing wage, occupational safety and health, and nondiscrimination requirements;
F. 
One or more violations by such person of any law or regulation governing the handling, transfer, storage or disposal of hazardous materials or hazardous waste;
G. 
One or more violations by such person of any law or regulation governing the handling, transfer, storage or disposal of solid waste generated in connection with construction or demolition;
H. 
A violation by such person of any law or regulation governing conflict of interest;
I. 
The issuance to such person, within a two-year period, of three final administrative or criminal citations for violations of the city of Moreno Valley Municipal Code. Multiple administrative citations issued for continuing violations occurring on the same calendar day shall be considered one violation for purposes of this chapter;
J. 
If in bad faith: (1) a person fails to pay for work performed by a general contractor or contractor, (2) a general contractor fails to pay for work performed by a subcontractor, or (3) a subcontractor fails to pay for labor or materials provided, within 14 days or within the time otherwise agreed upon between the parties following the completion of the work or labor or delivery of materials, and delivery of an initial written request for payment evidenced by an affidavit of service or return receipt of certified mail. Bad faith may be established by the conduct between the parties or other means as allowed by the court but shall at a minimum be evidenced by two subsequent written requests for payment delivered not sooner than two weeks after the initial request and at least two weeks apart and testimony that payment in full has not been made and there is no reasonable basis to delay payment which together shall constitute prima facie evidence of bad faith. A party who acts in compliance with applicable contract provisions shall not be deemed to act in bad faith under this section.
(Ord. 702 § 1, 2005)
A. 
Existence of grounds for debarment of a person, as described in Section 3.14.140 of this chapter, may be determined to exist by the city manager, his or her designee, or the city council on appeal, if, not more than three years prior to the date that a written notice of proposed debarment is provided to such person pursuant to Section 3.14.180 of this chapter:
1. 
Such person has been convicted of a criminal charge for any act or omission, described in Section 3.14.140 of this chapter, whether entered upon a verdict or a plea, including a plea of no contest;
2. 
A final civil judgment arising out of any act or omission, described in Section 3.14.140 of this chapter, has been entered against such person;
3. 
A significant penalty or sanction, including, but not limited to, monetary penalties and other sanctions, such as debarment, has been imposed on such person by a federal, state or local agency for any act or omission, described in Section 3.14.140 of this chapter; or
4. 
Based on a preponderance of evidence in the record of facts and information presented at a hearing under this chapter, the city manager, his or her designee, or a hearing officer on appeal, finds that such person has committed one or more acts or omissions, described in Section 3.14.140 of this chapter.
B. 
Conduct may be imputed to a person for whom debarment is being considered as follows:
1. 
An act or omission, as described in Section 3.14.140 of this chapter, of any principal may be imputed to the person when the conduct occurred in connection with such principal's performance of duties for or on behalf of the person, or with the person's knowledge, approval, or acquiescence.
2. 
An act or omission, as described in Section 3.14.140 of this chapter, of one person in a joint venture or similar arrangement may be imputed to other participants if the conduct occurred for or on behalf of the joint venture or similar arrangement or with the knowledge, approval, and acquiescence of such participants. Acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.
3. 
An act or omission, as described in Section 3.14.140 of this chapter, of one person in a joint venture or similar arrangement may be imputed to other participants if the conduct occurred for or on behalf of the joint venture or similar arrangement or with the knowledge, approval, or acquiescence of such participants. Acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.
C. 
In determining whether to debar a person, and the duration of any debarment, the city manager, designated hearing officer, or city council on appeal, may consider, in addition to any other relevant factors, the following:
1. 
The degree to which such person cooperated fully with local, state or federal authorities during any investigation and/or any administrative or judicial proceeding which forms the grounds for debarment;
2. 
The degree to which such person has paid or has agreed to pay all criminal, civil, and administrative liabilities resulting from any of the acts or omissions, set forth under Section 3.14.140 of this chapter, including any investigative or administrative costs incurred by any government agency, and has made or had agreed to make full restitution for any damages incurred as a result of any such acts or omissions;
3. 
Whether such person had effective standards of conduct and internal control systems in place at the time of any of the acts or omissions, set forth under Section 3.14.140 of this chapter, or had adopted such procedures prior to any investigation of such acts or omissions;
4. 
Whether such person brought any of the acts or omissions, set forth under Section 3.14.140 of this chapter, to the attention of the appropriate government agency or agencies in a timely manner;
5. 
Whether such person has fully investigated the circumstances surrounding any of the acts or omissions, set forth under Section 3.14.140 of this chapter, and, if so, has made the result of the investigation available to the city;
6. 
Whether such person has taken appropriate disciplinary action against the individuals responsible for any of the acts or omissions, set forth under Section 3.14.140 of this chapter;
7. 
Whether such person has implemented or agreed to implement remedial measures to prevent a recurrence of any of the acts or omissions, set forth under Section 3.14.140 of this chapter, including, but not limited to, new or revised review and control procedures and ethics training programs, as well as any other measures identified by any government agency;
8. 
Whether such person has had adequate time to eliminate the circumstances within their organization that led to any of the acts or omissions, set forth under Section 3.14.140 of this chapter.
(Ord. 702 § 1, 2005)
A. 
A debarment of a group, association, firm, corporation, partnership, company, or other entity under this chapter constitutes debarment of all of such entity's divisions and other organizational elements from all city contracts and agreements, unless the debarment decision is limited by its term to one or more specifically identified individuals, divisions or other organizational elements.
B. 
The debarment of a person may include any existing affiliate of the person where the affiliate is specifically named and given notice of the proposed debarment and an opportunity to respond. The debarment shall automatically include any successor-in-interest or any affiliate of the debarred person formed after such debarment.
C. 
Debarment of any person includes debarment of any business entity, whether or not such business entity was in existence at the time of such debarment, for which the debarred person acts as a principal during the debarment period.
(Ord. 702 § 1, 2005)
A. 
Debarment shall be for a period commensurate with the seriousness of the grounds for debarment, as determined by the city manager, or by a hearing officer on appeal. An initial period of debarment shall not exceed three years.
B. 
Prior to expiration of the time period of any debarment imposed under this chapter, the city manager may review the record of the evidence presented during the debarment proceedings, as well as any additional facts or information relevant to a review of the debarment. The city manager may extend the existing debarment, for successive additional periods of up to two years each, if the city manager determines that such extension is necessary to protect the public interest. If the city manager determines that debarment for an additional period is necessary, the city manager shall follow the procedures established by Section 3.14.180 of this chapter before imposing such extension.
C. 
Unless the city manager has extended the debarment pursuant to subsection B of this section, the debarment shall automatically terminate upon expiration of the debarment period.
(Ord. 702 § 1, 2005)
A. 
Prior to debarring any person under this chapter, the city manager shall mail by certified or registered mail, return receipt requested, or deliver by personal service a written notice of the proposed debarment to the person proposed to be debarred, hereinafter referred to as "respondent." Such notice shall contain the following:
1. 
Notice that a debarment is being considered;
2. 
The grounds for the proposed debarment, in terms sufficient to put the respondent on notice of the conduct or transaction(s) upon which it is based;
3. 
The potential period of the debarment;
4. 
The city's procedures governing the debarment; and
5. 
The address to which a request for a hearing and/or information and argument in opposition to the proposed debarment should be delivered or mailed.
B. 
Within 30 days after personal service or mailing of the notice of proposed debarment, the respondent or the respondent's representative may submit in writing a request for a hearing and/or information and argument in opposition to the proposed debarment. Such written request and/or information and argument shall also specify the address to which subsequent notices and other communications to the respondent should be mailed.
C. 
If the respondent requests a hearing in accordance with subsection B of this section, the city manager shall, within 30 days after receipt of such request, schedule an informal hearing at which the respondent or the respondent's representative shall have a reasonable opportunity to provide information and argument, including the presentation and questioning of witnesses, to the city manager or a designated hearing officer. The city manager shall mail the respondent, by certified or registered mail, return receipt requested, written notice of the time, date, and location of such hearing, which shall be held no sooner than 10 days from the date of such notice of hearing.
D. 
The city manager's or designated hearing officer's debarment decision shall be made within 30 days after expiration of the 30 day period specified in subsection B of this section, or within 30 days after a hearing is held, whichever is later. If the decision is reached that it is in the best interest of the city to impose debarment, such decision shall be in writing, shall contain findings of fact and shall specify the grounds for debarment based on the record of facts and information presented to the city manager or designated hearing officer.
E. 
A copy of the decision shall be mailed to the respondent by certified or registered mail, return receipt requested, no later than five days after the decision is made. If the decision is made to impose debarment, the decision shall specify the period of debarment. Except in cases where the debarment decision is appealed in accordance with Section 3.14.190 of this chapter, the period of debarment shall begin on the date the decision is mailed to the respondent. In cases where the debarment decision is appealed in accordance with Section 3.14.190 of this chapter, the period of debarment shall begin on the date that the city council makes a decision to uphold or modify the earlier debarment decision, in accordance with Section 3.14.190 of this chapter.
F. 
If the respondent fails to submit either a written request for a hearing or written information and argument in opposition to a proposed debarment within the 30 day period specified in subsection B of this section, or if respondent fails to appear at the hearing, the proposed debarment or the decision of the city manager or designated hearing officer shall be final, and shall not be subject to appeal pursuant to Section 3.14.190 of this chapter.
G. 
The city manager may reverse a decision to debar a person, or may reduce the scope or time period of debarment for any reason which obviates the need for the debarment or which indicates a shorter debarment period will adequately protect the public interest. Such reasons include, but are not limited to, the following:
1. 
Newly discovered material evidence;
2. 
Reversal of the conviction, civil judgment or administrative penalty or sanction upon which the debarment was based;
3. 
Bona fide change in ownership or management; or
4. 
Elimination of other grounds for which the debarment was imposed.
Such reversal or reduction in scope or time period of the debarment may be initiated by the city manager or by the debarred person upon a request submitted to the city manager. Such debarred person's request shall be in writing and supported by documentation. The debarred person shall provide any additional documentation requested by the city manager in order to review such request. The city manager shall notify the debarred person of the decision made upon any such request submitted by a debarred person within 30 days after receipt of the request and/or any supporting documentation. A debarred person may not submit such a request until a minimum of 12 months have elapsed after the period of debarment begins, and no more than one such request may be submitted during each successive 12 month period thereafter.
(Ord. 702 § 1, 2005)
A. 
Any appeal of a decision of the city manager or designated hearing officer regarding a debarment or the period or scope of debarment imposed shall be heard by the city council.
B. 
The respondent or respondent's representative may appeal any decision made by the city manager or designated hearing officer regarding a debarment or the period or scope of debarment imposed, by delivery to the city clerk of a written notice of appeal no later than 30 days after the date that notice of the city manager's or designated hearing officer's decision is mailed to the respondent. The written notice of appeal shall include a copy of the debarment decision.
C. 
If a valid notice of appeal is timely filed, the city clerk shall establish the date of the hearing before the city council, which shall be held within 45 days of the filing, and shall mail the respondent written notice of the hearing, which specifies the location, time and date of the hearing, which shall be held no sooner than 10 days from the date of such notice of hearing.
D. 
The hearing by the city council shall be a de novo hearing, and shall be based on the criteria specified herein.
E. 
Government Code Section 11513, subsections (a), (b) and (c), as presently written or hereafter amended, shall apply to hearings under this section, except that relevant hearsay evidence may be sufficient in itself to support a finding if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.
F. 
At the hearing, the city manager shall bear the burden of showing, by a preponderance of the evidence, that there exist grounds for debarment in accordance with the provisions of this chapter. The city council may take official notice, either before or after the close of the hearing, of any fact which may be judicially noticed by the courts of this state or which may appear in any of the official records of the city or any of its departments.
G. 
After the close of the hearing, the city council may uphold, reverse, or modify the city manager's or designated hearing officer's debarment decision. Any decision upholding or modifying the earlier decision shall be in writing, shall contain findings of fact, shall specify the grounds for debarment based on the record of facts and information presented, and shall specify any modifications to the earlier decision. A copy of the city council's decision shall be mailed to the respondent no later than 10 days after the hearing.
H. 
The decision of the city council shall be final. Judicial review of any decision made by the city council pursuant to this section shall be governed by Section 1094.5 of the Code of Civil Procedure.
(Ord. 702 § 1, 2005)
The director of a city department, or his or her authorized designee, may require any person bidding or submitting a proposal on a city contract or agreement administered by such department to certify under penalty of perjury, as a part of any bid or proposal submitted, whether such person, including any principal, affiliate or predecessor-in-interest of such person:
A. 
Is currently under debarment, or has been under debarment at any time during the preceding three years, by any federal, state or local agency; and
B. 
Has, at any time during the preceding three years, been convicted, 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 Section 3.14.140 of this chapter.
(Ord. 702 § 1, 2005)
No person shall knowingly use or list, in any bid or proposal for a city contract or agreement, any subcontractor or supplier who is debarred under this chapter. In the performance of any city contract or agreement, utilizing the services of any person who is debarred under this chapter, with knowledge of such debarment, shall constitute a misdemeanor. Violation of this section may also result in rejection of the bid or proposal, nonpayment by the city for work performed by the debarred person, annulment of award or termination of contract or agreement, issuance of a stop work order, debarment, or any other remedy provided by law. If a person lists a debarred subcontractor or a supplier without knowledge of the debarment, such person will be allowed to substitute the debarred subcontractor or supplier listed in accordance with provisions of the contract governing contract changes.
(Ord. 702 § 1, 2005)
The city shall not renew or extend the term of any existing contract(s) or agreement(s) with any person who is debarred in accordance with this chapter, unless the city council upon a two-thirds vote determines that such renewal or extension is in the best interest of the city.
(Ord. 702 § 1, 2005)
A. 
The city manager shall maintain a list of all persons who are currently debarred by the city pursuant to this chapter and the dates of each such debarment. Such list shall not include a person debarred by another local agency or the state or federal government unless the person also has been debarred under this chapter. Such list shall be filed with the city clerk. The city clerk shall make the list available for inspection and copying by any person during reasonable hours and upon reasonable notice.
B. 
Said list shall be included in the bid solicitation for any city contract or agreement. By including such list, bidders and proposers shall be deemed to be on notice as to the persons debarred under this chapter.
(Ord. 702 § 1, 2005)