The city council of the city of Glendale finds that contracting
with the city is an important municipal affair and that entering into
contracts with persons who fail to deal with the city in good faith
compromises the integrity of the contracting process and results in
the improper expenditure of public funds. The city intends to do business
in any way only with responsible persons, and by enacting this chapter,
it is the purpose and intent of the council to establish standards
of responsibility for all persons who do business with the city of
Glendale, and to set forth procedures for determining in advance of
submittal of bids or proposals on city contracts whether a contractor
has demonstrated the requisite responsibility, integrity and trustworthiness
to enter into contracts with the city of Glendale.
(Ord. 5544 § 1, 2006)
A.
This
chapter shall apply to all contracts awarded by, executed by, or entered
into by the city, including, without limitation, purchases, contracts
or leases for supplies, materials or equipment, contracts for professional
and nonprofessional services, contracts for public works or construction
projects, and contracts with insurance or surety companies issuing
insurance policies or bonds for city public works or construction
projects, city-sponsored events or privately-sponsored events at city
facilities.
B.
This
chapter establishes the grounds for debarment and suspension, sets
forth procedures for determining whether a person is to be debarred
or suspended, establishes the consequences of a person's debarment
and suspension, and provides that a list of debarred and suspended
persons is to be created and maintained by the city manager.
C.
Nothing
in this chapter shall limit the city's ability to determine prior
to, or at the time of contracts 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.
D.
Nothing
in this chapter shall prevent the city, in its sole discretion, from
amending, modifying or waiving the provisions of any city contract,
or from entering into compromise or settlement agreements with persons
about the future performance of city contracts by such persons.
(Ord. 5544 § 1, 2006)
The following definitions shall apply for the purposes of this
chapter:
means information sufficient to support the reasonable belief
that a particular act or omission has occurred.
means a person who:
Is the assignee, successor, subsidiary of, or parent company,
of another person; or
Is a controlling stockholder; or
Has the same or similar management of the debarred corporate
or other legal entity; or
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 having 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 in a manner
designed to evade the application of this chapter or to defeat the
purpose of this chapter.
means any written agreement in any form between the city
and another person and includes, but is not limited to, public works
contracts, agreements, leases, licenses, purchase orders or lease-purchase
agreements.
means any individual person or business entity, firm, partnership,
corporation, or combination thereof who submits a qualification statement,
proposal, bid or quote or who contracts directly or indirectly with
the city for the purpose of providing any goods, services, labor and
materials to or for the city in exchange for city funds, including
without limitation any contractor, subcontractor, consultant, subconsultant
or supplier. The term "contractor" shall include any responsible managing
corporate officer who has personal involvement and/or responsibility
in obtaining a contract with the city or in supervising and/or performing
the work prescribed by the contract.
means a stockholder who:
means the administrative determination against a potential
bidder or contractor declaring such potential bidder or contractor
to be irresponsible and disqualified from:
Bidding on a contract;
Submitting responses to city's requests for proposals or qualifications;
Being awarded a contract;
Executing a contract;
Participating in a contract as a subcontractor, material supplier,
or employee of a prime contractor or another subcontractor for a period
of time specified in the debarment order issued by the debarment hearing
board;
Directly or indirectly submitting offers for, or executing contracts,
or subcontracts with the city; or
Conducting business with the city as an employee, agent, or
representative of another person.
means a one to five member board appointed by the building
and fire board of appeals to hold hearings, take evidence, and to
make determinations about debarment for the city.
means a city department organized under authority of the
city manager.
means the officers, partners, owners, foremen or other individuals
responsible for the financial and operational policies and practices
of a person.
has the meaning ascribed to it in Section 1.04.020 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:
Directly or indirectly 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
Conducts business, or reasonably may be expected to conduct
business with the city as an agent or representative of another person.
means proof by information that, compared with that opposing
it, leads to the conclusion that the fact at issue is more probably
true than not.
means a contract for the construction, reconstruction, maintenance,
or repair of public buildings, streets, utilities, and other public
assets.
means:
An individual related by consanguinity within the second degree
as determined by the common law;
A spouse;
An individual related to a spouse within the second degree as
determined by the common law; or
An individual in an adoptive relationship within the second
degree as determined by the common law.
means the debarment of a person for a temporary period of
time pending the completion of an investigation and any proceeding
before a debarment hearing board and any appeals therefrom.
means:
(Ord. 5544 § 1, 2006)
A.
The
covenant of good faith and fair dealing is contained in every city
contract, and city contractors 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 a good faith, honest evaluation of the
matter which is the subject thereof.
B.
The
city requires in all of its procurement procedures that all persons
who submit bids, proposals or offers to enter into a contract with
the city do so truthfully and in good faith, and shall not attempt
to mislead the city with respect to the following items including,
but not limited to, records regarding the nature or quality of the
work performed under the contract, payroll records, classification
of employees in payroll records, and payment of prevailing wages where
called for by the contract.
C.
All
city contractors shall adhere to the highest standards of performance
and workmanship in the performance of work on city contracts.
D.
All
city contractors shall adhere to all applicable laws and regulations
including, but not limited to, city ordinances regarding nondiscrimination,
gifts to city officials, and conflict of interest regulations.
E.
All
city contractors shall comply with all city policies applicable to
the contract to which they are a party.
(Ord. 5544 § 1, 2006)
Debarment may be imposed on a person by the debarment hearing
board, or by the city council on appeal, in accordance with the procedures
established by this chapter on one or more of the following grounds:
A.
Commission
of any act of:
1.
Fraud,
bribery, collusion, or conspiracy,
2.
Bid
rigging, price fixing or any act in violation of any state or federal
statute or municipal ordinance in connection with the bidding upon,
award, or performance of any public or private contract, or
3.
Embezzlement,
theft, fraudulent schemes and artifices, fraudulent schemes and practices,
perjury, forgery, falsification, fabrication or destruction of records,
or receiving stolen property;
B.
Commission
of any act indicating a lack of business integrity or business honesty
which could affect the person's or its affiliate's responsibility
or reliability of performance under a contract, including without
limitation, improper, aberrant or unethical conduct in connection
with the person's or its affiliate's performance of any public or
private contract;
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 nonmeritorious or to contain false information;
D.
Submission
of any false, misleading or nonmeritorious claim, demand or lawsuit
against any public agency, including the city;
E.
A pattern
and practice of unjustifiably disregarding or failing to honor terms
or conditions of city contracts, including without limitation, repeated
unexcused delays and poor performance;
F.
Substandard
performance on any city contract including, but not limited to, a
material breach thereof, 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, substandard quality of work, inadequate personnel
or equipment to complete the work in a timely manner, inability or
unwillingness to cooperate with city representatives, or any negligent
or wrongful failure to cooperate with any city department, or to comply
with a city policy which is applicable to the contract;
G.
Knowingly
doing business with a debarred third person in performance of the
city's purchase of any supplies, materials and equipment or general
services contract awarded after debarment of such third person;
H.
A verdict,
judgment, settlement, stipulation or plea agreement establishing the
person's violation of any civil or criminal law relevant to the person's
ability or capacity to perform or comply with the terms and conditions
of a city contract;
I.
A conviction
under federal or state antitrust statutes involving public contracts
or the submission of offers or bid proposals;
J.
Breach
of the duty of good faith and fair dealing including, a violation
of any local, state, or federal law or regulation applicable to a
contract or transaction;
K.
Noncompliance
with any law governing the handling, transfer, storage or disposal
of hazardous materials or hazardous waste, or failure to perform a
contract in such a way that environmental damage results or a violation
of environmental laws or permits is committed;
L.
Noncompliance
with labor or safety statutes and regulations including, but not limited
to, regulations or standards governing prevailing wage, occupational
safety and health, nondiscrimination requirements or other local,
state, or federal laws;
M.
Evidence
that the person lacks financial responsibility, such as unpaid debts,
unfulfilled insurance or bond obligations or other evidence of financial
instability or irresponsibility;
N.
Failure
to have or maintain in good standing all necessary licenses, permits
or other approvals required to transact business within the state
of California;
O.
Any
other ground which the debarment hearing board, or the city council
on appeal, determines to significantly impair the ability of the person
to perform on a city contract including evidence that the person was
established to, or operates in a manner designed to evade the application
of this chapter or to defeat the purpose of this chapter.
(Ord. 5544 § 1, 2006)
A.
Evidence
of grounds for debarment may be determined to exist if:
1.
Within the last 10 years, the person has been convicted of a criminal charge for any act or omission described in Section 4.14.050 whether entered upon a verdict or a plea, including a plea of nolo contendere;
2.
Within the last five years, a civil judgment has been entered against the person for any act or omission described in Section 4.14.050; or
3.
The
debarment hearing board, or the city council on appeal, finds that
based upon a preponderance of the evidence presented, such grounds
exist.
B.
In determining
whether a person should be debarred, and the duration for any debarment,
the debarment hearing board, or the city council on appeal, may consider
in addition to any other relevant factors, the following:
1.
The
degree to which the person cooperated with local, state or federal
authorities in any criminal proceeding which forms the grounds for
debarment;
2.
The degree to which the person provided restitution for any damages or injury occasioned by the person's acts or omissions set forth under Section 4.14.050;
3.
Whether the person fully investigated the circumstances surrounding such acts or omissions set forth under Section 4.14.050, and promptly provided the city with the results of the investigation; and
4.
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 public agency.
(Ord. 5544 § 1, 2006)
A.
Debarment
or suspension 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 debar or suspend is limited by its terms
to one or more specifically identified individuals, divisions, subsidiaries,
affiliates, parents or other organizational elements.
B.
The
debarment or suspension of a person shall apply to any existing affiliate
of the person where the affiliate is specifically named and given
notice of the proposed debarment or suspension and opportunity to
respond. The debarment shall also apply to any successor-in-interest
or any affiliate of the debarred person formed during or after the
debarment proceedings.
C.
Debarment
of any person shall apply to 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.
D.
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.
E.
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, material supplier, insurer or surety.
(Ord. 5544 § 1, 2006)
A.
Debarment
shall be for a period commensurate with the seriousness of the grounds,
as determined by the debarment hearing board or by the city council
on appeal, except that an initial period of debarment shall not exceed
five years.
B.
At the 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 information or evidence relevant to a review of the debarment received by the city manager prior to such review. The city manager may extend any existing debarment for an additional period of up to three years, if the city manager determines that adequate evidence supporting an extension of the debarment exists and 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 for debarment established in this chapter commencing with Section 4.14.100, and shall act as the charging official in any proceedings to extend debarment.
(Ord. 5544 § 1, 2006)
Any city department head who, based on available evidence, has cause to believe that a contractor has engaged in any willful misconduct with respect to any city bid, request for qualification, request for proposals, purchase order or contract, or committed any act or omission relating to any matter consistent with the grounds for debarment specified in Section 4.14.050 may initiate debarment proceedings by filing a complaint with the city manager. The complaint must be in writing, and shall state the name of the contractor whose conduct allegedly merits debarment, and provide a specific and detailed narrative description of the conduct alleged to be grounds for debarment. Such charging official may issue the complaint regardless of whether such charging official awarded, was responsible for, or was involved in any way with the underlying contract or circumstances leading to the complaint.
(Ord. 5544 § 1, 2006)
A.
Upon
receipt of a complaint recommending debarment, or after determining
that extension of an existing debarment is necessary to protect the
public interest, the city manager shall deliver a written notice of
proposed debarment to each named contractor and to any interested
party by personal service or United States mail in a manner ensuring
written confirmation of delivery. The notice of proposed debarment
shall contain the following:
1.
Notice
that debarment is being considered;
2.
The
grounds for the proposed debarment, in terms sufficient to put the
contractor on notice of the conduct or action(s) upon which it is
based;
3.
The
potential consequences of the debarment, including the intended period
of debarment or suspension;
4.
The
city's debarment procedures set forth in this chapter; and
5.
The
name and address to which the contractor may submit a written request
for a hearing on the proposed debarment.
B.
If the city manager determines that adequate evidence supporting debarment exists, the city manager may suspend the contractor pending a debarment decision, provided also that the city manager finds that such suspension is in the public interest. The city manager shall notify the contractor of the suspension in accordance with the delivery provisions set forth in subsection A of this section. Once the city manager has suspended a person, the suspension shall continue until 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 debarment decision, if any appeal is filed.
(Ord. 5544 § 1, 2006)
A.
Within
15 days after receipt of the notice of proposed debarment, the contractor
or the contractor's authorized representative may submit a written
request to be heard, in person or through a representative. Any such
written request to be heard shall be filed with the city clerk and
copied to the city manager. The written request shall specify the
name and address of the person to which all subsequent notices and
communications should be mailed.
B.
Failure
of the contractor to submit to the city a written request to be heard
within the time required by this section, or failure of the contractor
or the contractor's representative to appear for a requested hearing
that has been duly noticed, shall be deemed admission by the contractor
to the allegations of the complaint.
C.
If the
contractor submits to the city a written request to be heard in person
or through a representative, within 15 days of the filing of such
request, the city manager shall refer the written request to the building
and fire board of appeals for the purpose of appointing a fair and
impartial debarment hearing board to hear and determine whether the
contractor should be debarred. Within 30 days of the filing of the
written request to be heard, the building and fire board of appeals
shall appoint one or more of its members to serve on the debarment
hearing board.
D.
Within
15 calendar days of its appointment, the debarment hearing board shall
notify each person named in the notice of proposed debarment and the
charging official of the time, date and location of the scheduled
hearing. The hearing date shall be set at the board's sole discretion,
except the hearing must commence within 90 days of the date the city
manager served the notice of proposed debarment. The debarment hearing
board may extend the 90 day period only upon good cause shown.
E.
The
debarment hearing board may, in its sole discretion, direct any named
contractor and the charging official to submit in advance of the hearing,
statements, legal analyses, lists of witnesses, exhibits, documents
or any other information the board deems pertinent to the determination
of willful misconduct. The board may request the respective parties
to submit rebuttals to such information. The board may limit the length,
scope or content of any such statement, analysis, list, rebuttal,
document, or other requested information. The board shall set firm
due dates for all written presentations.
F.
If the
board determines, with the written agreement of each named contractor
and the charging official, that the hearing shall be by written presentation,
then all final writings shall be due no later than 90 days of the
date the city manager served the notice of proposed debarment.
G.
All
notices and writings required to be served under this section shall
be delivered by personal service or United States mail in a manner
ensuring written confirmation of delivery.
(Ord. 5544 § 1, 2006)
The proceedings shall be as informal as is compatible with the
requirements of justice. The debarment hearing board 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. The standard
of proof for the debarment hearing shall be a preponderance of the
evidence.
(Ord. 5544 § 1, 2006)
A.
The
fraudulent, criminal or other seriously improper conduct of any officer,
director, partner, shareholder, employee or other individual 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 benefits derived from
the conduct shall be evidence of such knowledge, approval or acquiescence.
B.
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. 5544 § 1, 2006)
A.
Hearings may occur in person or in writing, as set forth in Section 4.14.110. If the hearing is to occur in person, the debarment hearing board shall specify the time and place for the charging official to present the case and for the contractor to rebut the charges. The board may, in its sole discretion, allow offers of proof, shorten the time to produce records or witnesses, exclude witnesses from the hearing when not testifying, and limit the scope of evidence presented based on relevancy. Each side shall be entitled to call witnesses, and the board may allow cross-examination of witnesses. The members of the debarment hearing board may ask questions of any party for the purpose of reaching a determination. The hearing shall be open to the public.
B.
The debarment hearing board shall follow procedures established in this chapter and shall make decisions based on evidence taken at a hearing. The board shall consider the evidence submitted by the charging department and the contractor. Within 15 days of the hearing, or of the date final written presentations are due, the board shall issue its findings and recommendation. If the debarment hearing board finds that based upon a preponderance of the evidence presented at the hearing, one or more grounds of debarment exist as described in Section 4.14.050 and recommends a term of 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 at the hearing.
C.
The
debarment hearing board shall serve its findings and recommendation
on the charging official, the named contractor(s), and/or their respective
counsels or authorized representatives, and shall submit the same
to the city manager. Service may be accomplished by personal service
or United States mail in a manner ensuring written confirmation of
delivery.
(Ord. 5544 § 1, 2006)
Either the charging official or the contractor may appeal any decision made by the debarment hearing board to the city council in accordance with the uniform appeal procedure of Chapter 2.88 of this code. The decision of the city council shall be final.
(Ord. 5544 § 1, 2006)
C.
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
such individuals may be expected to conduct business with the city
under a different corporate identity.
D.
A person
who has been debarred or suspended is disqualified from submitting
bids directly or indirectly, submitting responses to requests for
proposals 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.
E.
A person
who is an affiliate of a person that is debarred or suspended is debarred
or suspended to the same extent as the person that has been debarred
or suspended.
F.
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 to the same extent as the seller
or transferor is debarred or suspended.
G.
Violation
of any order of debarment, such as by submission of a proposal or
bid during the term of debarment, may be considered a false claim
as provided in the California Government Code.
H.
Administrative
debarment or suspension shall neither exclude nor preclude any other
administrative or legal action that might be taken by the city.
(Ord. 5544 § 1, 2006)
A.
Notwithstanding
the debarment or suspension of a person, the city may elect to continue
contracts or subcontracts it has with that person that were in existence
at the time the person was debarred or suspended.
B.
If the
city manager believes that termination of contracts with a 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 only after consultation with
the city attorney to ensure the propriety and legality of the proposed
action(s).
C.
The
city shall not renew or otherwise extend the duration of contracts
in existence at the time of debarment or suspension with debarred
or suspended persons unless the city council determines that such
renewal or extension is in the best interest of the city.
(Ord. 5544 § 1, 2006)
A.
A contractor
who is awarded a contract with the city shall not knowingly employ,
subcontract with, or purchase materials or services from a person
who is currently debarred or suspended pursuant to this chapter. Violation
of this subsection may result in rejection of the bid or proposal,
nonpayment by the city for work performed, 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.
B.
A person
who uses or lists a debarred or suspended subcontractor, supplier,
insurer or surety without having actual or constructive knowledge
of such disqualification shall be allowed to substitute the disqualified
person in accordance with state law or, if not applicable, the provisions
of the contract governing contract changes.
(Ord. 5544 § 1, 2006)
A.
The
city may determine the eligibility of any contractor bidding or submitting
a proposal for a city contract by requiring that the contractor submit,
upon request, a statement under penalty of perjury declaring that
neither the contractor, nor any principal nor affiliate of the contractor,
nor any subcontractor, supplier or surety to be engaged by the contractor:
B.
The
city may determine the eligibility of any contractor bidding or submitting
a proposal for a city contract by requiring that the contractor submit,
upon request, any other information or documentation deemed necessary
to determine the person's eligibility.
(Ord. 5544 § 1, 2006)
A.
The
city manager shall create and maintain a list of persons who have
been debarred or suspended in accordance with procedures of this chapter
and the effective dates of such disqualification. Such list shall
be filed with the city clerk, who shall make the list available for
public inspection and copying during regular business hours.
B.
The
list of persons who have been debarred or suspended by the city shall
be deemed to be constructive notice as to persons who have been disqualified
from submitting bids or proposals on city contracts or who are ineligible
to participate in such contracts.
C.
The
city manager shall establish procedures to provide for the effective
use of the list to ensure the city does not do business with persons
who have been debarred or suspended.
(Ord. 5544 § 1, 2006)
