Loading...
HomeMy WebLinkAboutItem SAGENDA REPORT DATE: August 13, 2001 TO: Honorable Mayor and City Council THRU: John B. Bahorski, City Manager FROM: Lee Whittenberg, Director of Development Services SUBJECT: CONSIDERATION OF ADDITIONAL PROPOSED CITY CHARTER AMENDMENTS SUMMARY OF REOUEST: Authorize the City Clerk, City Attorney and staff to prepare necessary documentation for a ballot measure regarding the proposed additional revisions to "The Charter of the City of Seal Beach ". On July 9, 2001, the City Council considered several proposed revisions to the Charter, and instructed staff to proceed with certain proposals. The City Council also requested staff to return with proposed language provisions to several of the proposals. In addition, staff had indicated at the July 9 meeting that additional proposals would be prepared regarding public works matters. Those items are presented for City Council consideration this evening. City staff and the City Attorney have reviewed the proposed additional revisions of the Charter, and are recommending City Council approval of the preparation of a ballot 'measure seeking voter approval of these proposed additional revisions to the Charter. The primary focus of the proposed additional revisions to the Charter are related to conforming to provisions of State law relating to conflicts (Government Code Section 1090), and revising public contract provisions. Upon City Council authorization, the City Clerk, staff and the City Attorney will institute the process for placing the proposed additional revisions on the March 5, 2002 General Election ballot. Provided as Attachment 1 is the proposed additional revisions. Agenda Item S C:Wy DocumwMCity CourcMOhe A=ndme=CC2 Sutffaepo &6Lw08-0b I Consideration of Proposed Additional City Charter Amendments City Council Staff Repon August 13, 2001 OVERVIEW OF PROPOSED ADDITIONAL CHARTER Amend the Charter to provide that prohibited financial interests in City contracts shall be governed by State law. Government Code Section 1090, a predecessor of which is incorporated into the existing Charter, prohibits local government officials, including those in Charter cities, from being financially interested in any contract entered into by that city. Amend the Charter to adopt policies and procedures governing contracting for public works to allow the City to follow state laws and provide that public works contracts less than $20,000 (as adjusted annually for inflation) do not require a public bid process. Amend the Charter to provide that the City Council may enter into "design- build" public works contracts. FISCAL IMPACT: Minimal costs involved in printing ballot information and ballots. Costs will be reduced, as the election will be consolidated with the March 5, 2002 General Election. RECOMMENDATION: Authorize the City Clerk, City Attorney and staff to prepare necessary documentation for a ballot measure regarding the proposed additional revisions to "The Charter of the City of Seal Beach ". NOTED "=o1.e,1,1Yment ohn . Bahorski, City Manager Services Attachments: (2) Attachment 1: Proposed Additional Revisions to the "Charter of the City of Seal Beach ", dated August 13, 2001 Attachment 2: Government Codes Sections 1090 to 1098 Charter A.dmeats.CC2 Staff Report Consideration of ProposedAdditiowl City CharterAmendments City Council Staff Report August 13, 1001 ATTACHMENT PROPOSED ADDITIONAL REVISIONS TO THE "CHARTER OF THE CITY OF SEAL BEACH ", DATED AUGUST 13, 2001 CharterAm ..m .CC2 Staff Rry a Consideration of proposed Additional CCi tyCCouncil Slaf(Report August 13.1001 PROPOSED ADDITIONAL REVISIONS TO THE "CHARTER O G OF EA BEACH", DATED U The Charter of the Seal Beach is hereby amended by revising Section 708 (Illegal Contracts. Financial Interest) of Article VII (Officers) to read as follows (double underlining indicates new language; sh*e.through indicates deleted language): "Section 708. Illegal Contracts_ Financial Interest f Califomia Gd CMnet AMMmmu.CC2 Sniff Re u Consideration of Proposed Additional Ciw ChanerAmendmenu City CouKtt Staff Repon August 13, 2001 ( 9) TI._ 4 ,fa_.._,...a:.,thaa..�:....sg 9 h:.....igo;..Lila A.__.._..,..... s /A\ T.... Ofa1....918«1 ...........lA @g.L ............. In T.... ..C.. .....L.._..C.. _...p_..C.. .. P.. A.__..9. _dw.L.. gp n W R]G . cl Gl° .L..., z Pff ..C.L °..L.._ 99a _ c _., a. California Government Code Sections 1090, et seq., initially adopted in 1943, provides that city officers and employees, inter aria, shall not be financially interested in any contract made by them in their official capacity. Section 708 of the Charter appears to be a verbatim copy of an earlier version of Section 1090 of the Government Code. However, Section 1090 and accompanying sections have been amended a number of times, both before and after the City adopted its Charter in 1964. Accordingly, the proposed revision will keep Charter Section 708 consistent with Section 1090. ❑ Shall the Charter of the City of Seal Beach be amended to provide that oublic works contracts less than $20.000 (as adiusted annually for inflation) do not require a public bid process? The Charter of the City of Seal Beach is hereby amended by revising Section 1010 (Contracts on Public Works) of Article X (Fiscal Administration), to read as follows (double underlining indicates new language from that presented on July 9; strike - through indicates deleted language from that presented on July 9): "Section 1010. Contracts on Public Works. °•.._ pf ° °61;°-° ....d:...__ °r...__...L_., C:. ° T........._d 99"9.., c _ .L,. The City Council shall Charter AmeM.rn¢ CQ SmH Report Consideration of Proposed Additional City CharterAmendments City Council StaJfkeport August 13, 2001 life, health, or property, This amendment would require the City Council to adopt policies and procedures governing contracting for public works. The City Council may, in its sole discretion, adopt selected policies and procedures by reference to state law, but no state law shall govern public works contracting unless it is expressly adopted by the City Council or has been finally determined to be applicable to all charter law cities by an appellate court with jurisdiction over the City of Seal Beach. This amendment would allow the City Manager to enter into public works contracts in an amount not to exceed $20,000.00 (as adjusted annually for inflation based on a nationally recognized construction cost index). The Charter of the City of Seal Beach is hereby amended by adding to Article X (Fiscal Administration) a new Section 1010.5 to read as follows (double underlining indicates new language from that presented on July 9; strike - through indicates deleted language from that presented on July 9): `Section 1010.5 Design -Build Contracts on Public Works. Notwithstanding any other provision of this Charter, the City may negotiate and enter into a design-build contract for both the design and construction of a project in accordance with this Section. Prior to the execution of a design-build contract, the City Council shall evaluate at a public meeting the comparative advantages for the particular project of the traditional design, bid, and build process of construction and the design-build process. No design-build contract shall be executed unless the City Council makes written findings that use of the design- build process on the project will accomplish one or more of the following objectives: md-atioR " reducin project costs; expediting e&4ka project C Oer Ame menu.= Staff Report Consideration of Proposed Additional Oi v Charter Amendments City Council Staff Report August 13, 1001 newspaper by one or more insertions, the first of which shall be at least ten days before the time for opening bids, and such other forms of notice as the City Council may direct. Projects for the construction, resurfacing, maintenance or repair of public works facilities Wildings —94s, a-_: -^ ^- .Aiji :-^ are excepted from the requirements of this Section All bids may be accompanied by either a certified or cashier's check, or a bidders bond executed by a corporate surety authorized to engage in such business in California, made payable to the City. Such security shall be in an amount not less than that specified in the notice inviting bids or in the specifications referred to therein, or if no amount be so specified then in an amount not less than ten per cent of the aggregate amount of the bid. If the successful bidder neglects or refuses to enter into the contract, within the time specified in the notice inviting bids or in the specifications referred to therein, the amount of his bidder's security shall be declared forfeited to the City and shall be collected and paid into its general fund, and all bonds so forfeited shall be prosecuted and the amount thereof collected and paid into such fund. The City Council may reject any and all bids presented and may readvertise in its discretion. The City Council, without advertising for bids. or after rejecting bids, or if no bids aw were received, may declare and determine that in its opinion, based on estimates approved by the City Manager, the work in question may be performed better or more economically by the City with its own employees or the suoolies or materials may be purchased more economically on the open market admtio.. ..0 a _ to *ie 094... t. _ _ 89 ik. __... :..:,,.,^ ,.r .t.:.. e�,..:,._, � Contracts likewise may be let without advertising for bids, if such work suoolies or materials shall be deemed by the City Council to be of urgent necessity for the preservation of Charier Amndment .CC?. Staff Report Consideration of Proposed Additional CItY e ouncil Staff August 13, 2001 completion; •educing or �-Of ]to di design features not achievable through the design-bid -build proaessl ^After rhnraid sunDl es or This amendment would allow the City Council the flexibility to determine if design-build process for public works projects is in the best interest of the City, as opposed to the more traditional design, bid, and build process. Claner A.e .d ms.CC2 Staff Report Coru'ideration oJProPw'ed Additional C� ty Couwil Staff Report August 13, 2001 ATTACHMENT 2 GOVERNMENT CODES SECTIONS 1090 TO 1098 CAVter A.0 AM=te.CC2 Stiff Report GOVERNMENT CODE SECTIONS 1090 -1098 1090. Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity. As used in this article, "district' means any agency of the state formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within limited boundaries. 1090.1. No officer or employee of the State nor any Member of the Legislature shall accept any commission for the placement of insurance on behalf of the State. 1091.(a) An officer shall not be deemed to be interested in a contract entered into by a body or board of which the officer is a member within the meaning of this article if the officer has only a remote interest in the contract and if the fact of that interest is disclosed to the body or board of which the officer is a member and noted in its official records, and thereafter the body or board authorizes, approves, or ratifies the contract in good faith by a vote of its membership sufficient for the purpose without counting the vote or votes of the officer or member with the remote interest. (b) As used in this article, "remote interest" means any of the following. (1) That of an officer or employee of a nonprofit corporation, except as provided in paragraph (8) of subdivision (a) of Section 1091.5. (2) That of an employee or agent of the contracting party, if the contracting party bas 10 or more other employees and if the officer was an employee or agent of that contracting party for at least three years prior to the officer initially accepting his or her office and the officer owns less than 3 percent of the shares of stock of the contracting party; and the employee or agent is not an officer or director of the contracting party and did not directly participate in formulating the bid of the contracting party. For purposes of this paragraph, time of employment with the contracting party by the officer shall be counted in computing the three -year period specified in this paragraph even though the contracting party has been converted from one form of business organization to a different form of business organization within three years of the initial taking of office by CM1yD =wu \City Com AGOVEMMENT CODE S 1090- 1098.dac \LW08 -07 -01 State of California Government Code Sections 1090 -1098 August 2001 the officer. Time of employment in that case shall be counted only if, after the transfer or change in organization, the real or ultimate ownership of the contracting party is the same or substantially similar to that which existed before the transfer or change in organization. For purposes of this paragraph, stockholders, bondholders, partners, or other persons holding an interest in the contracting party are regarded as having the 'real or ultimate ownership" of the contracting party. (3) That of an employee or agent of the contracting party, if all of the following conditions are met: (A) The agency of which the person is an officer is a local public agency located in a county with a population of less than 4,000,000. (B) The contract is competitively bid and is not for personal services. (C) The employee or agent is not in a primary management capacity with the contracting party, is not an officer or director of the contracting party, and holds no ownership interest in the contracting party. (D) The contracting party has 10 or more other employees. (E) The employee or agent did not directly participate in formulating the bid of the contracting party. (F) The contracting party is the lowest responsible bidder. (4) That of a parent in the earnings of his or her minor child for personal services. (5) That of a landlord or tenant of the contracting party. (6) That of an attorney of the contracting party or that of an owner, officer, employee, or agent of a fum which renders, or has rendered, service to the contracting party in the capacity of stockbroker, insurance agent, insurance broker, real estate agent, or real estate broker, if these individuals have not received and will not receive remuneration, consideration, or a commission as a result of the contract and if these individuals have an ownership interest of 10 percent or more in the law practice or firm, stock brokerage firm, insurance firm, or real estate firm. (7) That of a member of a nonprofit corporation formed under the Food and Agricultural Code or a nonprofit corporation formed under the Corporations Code for the sole purpose of engaging in the merchandising of agricultural products or the supplying of water. (8) That of a supplier of goods or services when those goods or services have been supplied to the contracting party by the officer for at least five years prior to his or her election or appointment to office. GOVERNMENT CODES. 1090 -1098 State of California Government Cade Sections 1090 -1098 Aagast 2001 (9) That of a person subject to the provisions of Section 1090 in any contract or agreement entered into pursuant to the provisions of the California Land Conservation Act of 1965. (10) Except as provided in subdivision (b) of Section 1091.5, that of a director of or a person having an ownership interest of 10 percent or more in a bank, bank holding company, or savings and loan association with which a party to the contract has a relationship of borrower or depositor, debtor or creditor. (11) That of an engineer, geologist, or architect employed by a consulting engineering or architectural firm. This paragraph applies only to an employee of a consulting firm who does not serve in a primary management capacity, and does not apply to an officer or director of a consulting firm. (12) That of an elected officer otherwise subject to Section 1090, in any housing assistance payment contract entered into pursuant to Section 8 of the United States Housing Act of 1937 (42 U.S.C. Sec. 14370 as amended, provided that the housing assistance payment contract was in existence before Section 1090 became applicable to the officer and will be renewed or extended only as to the existing tenant, or, in a jurisdiction in which the rental vacancy rate is less than 5 percent, as to new tenants in a unit previously under a Section 8 contract. This section applies to any person who became a public official on or after November 1, 1986. (13) That of a person receiving salary, per diem, or reimbursement for expenses from a government entity. (c) This section is not applicable to any officer interested in a contract who influences or attempts to influence another member of the body or board of which he or she is a member to enter into the contract. (d) The willful failure of an officer to disclose the fact of his or her interest in a contract pursuant to this section is punishable as provided in Section 1097. That violation does not void the contract unless the contracting party had knowledge of the fact of the remote interest of the officer at the time the contract was executed. 1091.1. The prohibition against an interest in contracts provided by this article or any other provision of law shall not be deemed to prohibit any public officer or member of any public board or commission from subdividing lands owned by him or in which he has an interest and which subdivision of lands is effected under the provisions of Division 2 (commencing with Section 66410) of Title 7 of the Government Code or any local ordinance concerning subdivisions; provided, that (a) said officer or member of such board or commission shall first fully disclose the nature of his interest in any such lands to the legislative body having jurisdiction over the subdivision thereof, and (b) said officer or member of such GOVERNMENT CODE Sec 10901098 State of California Government Code Sections 1090 -1098 August 1001 board or commission shall not cast his vote upon any matter or contract concerning said subdivision in any [Wanner whatever. 1091.2. Section 1090 shall not apply to any contract or grant made by local workforce investment boards created pursuant to the federal Workforce Investment Act of 1998 except where both of the following conditions are met: (a) The contract or grant directly relates to services to be provided by any member of a local workforce investment board or the entity the member represents or financially benefits the member or the entity he or she represents. (b) The member fails to recuse himself or herself from making, participating in making, or in any way attempting to use his or her official position to influence a decision on the grant or grants. 1091.5.(a) An officer or employee shall not be deemed to be interested in a contract if his or her interest is any of the following: (1) The ownership of less than 3 percent of the shares of a corporation for profit, provided that the total annual income to him or her from dividends, including the value of stock dividends, from the corporation does not exceed 5 percent of his or her total annual income, and any other payments made to him or her by the corporation do not exceed 5 percent of his or her total annual income. (2) That of an officer in being reimbursed for his or her actual and necessary expenses incurred in the performance of official duty. (3) That of a recipient of public services generally provided by the public body or board of which he or she is a member, on the same terms and conditions as if he or she were not a member of the board. (4) That of a landlord or tenant of the contracting party if the contracting party is the federal government or any federal department or agency, this state or an adjoining state, any department or agency of this state or an adjoining state, any county or city of this state or an adjoining state, or any public corporation or special, judicial, or other public district of this state or an adjoining state unless the subject matter of the contract is the property in which the officer or employee has the interest as landlord or tenant in which event his or her interest shall be deemed a remote interest within the meaning of, and subject to, the provisions of Section 1091. (5) That of a tenant in a public housing authority created pursuant to Part 2 (commencing with Section 34200) of Division 24 of the Health and Safety Code in which he or she serves as a member of the board of commissioners of the authority or of a community development commission created pursuant to Part 1.7 (commencing with Section 34100) of Division 24 of the Health and Safety Code. GOVERNMENT CODE S. 1090 -1098 State of California Government Code Sections 1090 -1098 August 1001 (6) That of a spouse of an officer or employee of a public agency in his or her spouse's employment or officeholding if his or her spouse's employment or officeholding has existed for at least one year prior to his or her election or appointment. (7) That of a nonsalaried member of a nonprofit corporation, provided that this interest is disclosed to the body or board at the time of the first consideration of the contract, and provided further that this interest is noted in its official records. (8) That of a noncompensated officer of a nonprofit, tax - exempt corporation, which, as one of its primary purposes, supports the functions of the body or board or to which the body or board has a legal obligation to give particular consideration, and provided further that this interest is noted in its official records. For purposes of this paragraph, an officer is "noncompensated" even though he or she receives reimbursement from the nonprofit, tax - exempt corporation for necessary travel and other actual expenses incurred in performing duties of his or her office. (9) That of a person receiving salary, per diem, or reimbursement for expenses from a government entity, unless the contract directly involves the department of the government entity that employs the officer or employee, provided that the interest is disclosed to the body or board at the time of consideration of the contract, and provided further that the interest is noted in its official record. (10) That of an attorney of the contracting party or that of an owner, officer, employee, or agent of a firm which renders, or has rendered, service to the contracting party in the capacity of stockbroker, insurance agent, insurance broker, real estate agent, or real estate broker, if these individuals have not received and will not receive remuneration, consideration, or a commission as a result of the contract and if these individuals have an ownership interest of less than 10 percent in the law practice or firm, stock brokerage firm, insurance firm, or real estate firm. (11) Except as provided in subdivision (b), that of an officer or employee of or a person having less than a 10- percent ownership interest in a bank, bank holding company, or savings and loan association with which a party to the contract has a relationship of borrower or depositor, debtor, or creditor. (12) That of (A) a bona fide nonprofit, tax - exempt corporation having among its primary purposes the conservation, preservation, or restoration of park and natural lands or historical resources for public benefit, which corporation enters into an agreement with a public agency to provide services related to park and natural lands or historical resources and which services are found by the public agency, prior to entering into the GOVERNMENT CODES. 1090 -1098 State of California Government Code Sections 1090 -1098 August 2001 agreement or as part of the agreement, to be necessary to the public interest to plan for, acquire, protect, conserve, improve, or restore park and natural lands or historical resources for public purposes and (B) any officer, director, or employee acting pursuant to the agreement on behalf of the nonprofit corporation. For purposes of this paragraph, "agreement" includes contracts and grants, and "park," "natural lands," and "historical resources" shall have the meanings set forth in subdivisions (d), (g), and (i) of Section 5902 of the Public Resources Code. Services to be provided to the public agency may include those studies and related services, acquisitions of property and property interests, and any activities related to those studies and acquisitions necessary for the conservation, preservation, improvement, or restoration of park and natural lands or historical resources. (b) An officer or employee shall not be deemed to be interested in a contract made pursuant to competitive bidding under a procedure established by law if his or her sole interest is that of an officer, director, or employee of a bank or savings and loan association with which a party to the contract has the relationship of borrower or depositor, debtor or creditor. 1092. Every contract made in violation of any of the provisions of Section 1090 may be avoided at the instance of any party except the officer interested therein. No such contract may be avoided because of the interest of an officer therein unless such contract is made in the official capacity of such of =, or by a board or body of which he is a member. 1092.5. Notwithstanding Section 1092, no lease or purchase of, or encumbrance on, real property may be avoided, under the terms of Section 1092, in derogation of the interest of a good faith lessee, . purchaser, or encumbrancer where the lessee, purchaser, or encumbrancer paid value and acquired the interest without actual knowledge of a violation of any of the provisions of Section 1090. 1093. The State Treasurer and Controller, county and city officers, and their deputies and clerks shall not purchase or sell, or in any manner receive for their own or any other person's use or benefit any State, county or city warrants, scrip, orders, demands, claims, or other evidences of indebtedness against the State, or any county or city thereof. This section does not apply to evidences of indebtedness issued to or held by such an officer, deputy or clerk for services rendered by them, nor to evidences of the funded indebtedness of the State, county, or city. 1094. Every officer whose duty it is to audit and allow the accounts of other state, county, or city officers shall, before allowing such accounts, require each of such officers to make and file with him an affidavit or certificate under penalty of GOVERNMENTCODESm 10904098 6 State of Cdifomia Government Code Sections 1090 -1098 August 2001 perjury that he has not violated any of the provisions of this article, and any individual who willfully makes and subscribes such certificate to an account which he knows to be false as to any material matter shall be guilty of a felony and upon conviction thereof shall be subject to the penalties prescribed for perjury by the Penal Code of this State. 1095. Officers charged with the disbursement of public moneys shall not pay any warrant or other evidence of indebtedness against the State, county, or city when it has been purchased, sold, received, or transferred contrary to any of the provisions of this article. 1096. Upon the officer charged with the disbursement of public moneys being informed by affidavit that any officer, whose account is about to be settled, audited, or paid by him, has violated any of the provisions of this article, the disbursing officer shall suspend such settlement or payment, and cause the district attorney to prosecute the officer for such violation. If judgment is rendered for the defendant upon such prosecution, the disbursing officer may proceed to settle, audit, or pay the account as if no affidavit had been filed. 1097. Every officer or person prohibited by the laws of this state from making or being interested in contracts, or from becoming a vendor or purchaser at sales, or from purchasing script, or other evidences of indebtedness, including any member of the governing board of a school district, who willfully violates any of the provisions of such laws, is punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in the state prison, and is forever disqualified from holding any office in this state. 1098.(a) Any current public officer or employee who willfully and knowingly discloses for pecuniary gain, to any other person, confidential information acquired by him or her in the course of his or her official duties, or uses any such information for the purpose of pecuniary gain, is guilty of a misdemeanor. (b) As used in this section: (1) "Confidential information" means information to which all of the following apply: (A) At the time of the use or disclosure of the information, the information is not a public record subject to disclosure under the Public Records Act. (B) At the time of the use or disclosure of the information, the disclosure is prohibited by (i) a statute, regulation, or rule which applies to the agency in which the officer or employee serves; (ii) the statement of incompatible activities adopted pursuant to Section 19990 by the agency in which the officer or employee GOVERNMENT CODES. 1090 -1098 7 (c) (d) M State of California Government Code sections 1090 -1098 August 2001 serves; or (iii) a provision in a document similar to a statement of incompatible activities if the agency in which the officer or employee serves is a local agency. (C) The use or disclosure of the information will have, or could reasonably be expected to have, a material financial effect on any investment or interest in real property which the officer or employee, or any person who provides pecuniary gain to the officer or employee in return for the information, has at the time of the use or disclosure of the information or acquires within 90 days following the use or disclosure of the infomration. (2) For purposes of paragraph (1): (A) Interest in real property" has the definition prescribed by Section 82033. (B) "Investment" has the definition prescribed by Section 82034. (C) "Material financial effect" has the definition prescribed by Sections 18702 and 18702.2 of Title 2 of the California Administrative Code, as those sections read on September 1, 1987. (3) "Pecuniary gain" does not include salary or other similar compensation from the officer's or the employee's agency. This section shall not apply to any disclosure made to any law enforcement agency, nor to any disclosure made pursuant to Sections 10542 and 10543. This section is not intended to supersede, amend, or add to subdivision (b) of Section 8920 regarding prohibited conduct of Members of the Legislature. GOVE2NMEN CODE Sin 1090 -1098