Chapter 13.02
LOCAL HIRING FOR PUBLIC WORKS

Sections:

13.02.010    Local hiring for public works.

13.02.020    Required documentation.

13.02.030    Forms submitted under penalty of perjury.

13.02.040    Binding on subcontractors.

13.02.050    Declaration of nonresponsive bidder.

13.02.060    Declaration of irresponsibility.

13.02.070    Finding of noncompliance.

13.02.080    Disqualification.

13.02.090    City attorney prosecution.

13.02.100    Contracts—Bid documents—Subcontracts.

13.02.110    Bid protests.

13.02.120    Appeals.

13.02.130    Appeal time limits.

13.02.140    Initiation of appeals.

13.02.150    Appeal procedure.

13.02.160    Rules and regulations.

13.02.170    Definitions.

13.02.010 Local hiring for public works.

Unless such provision would conflict with a state or federal law or regulation applicable to a particular contract for public works or improvement, all city contracts for public works or improvement subject to competitive bidding requirements shall contain provisions pursuant to which the contractor promises to make a good faith effort, to include but not limited to requesting the assistance of local labor union hiring halls or other community resources designated by the city, to hire qualified individuals who are residents of the Monterey Bay area in sufficient numbers so that no less than eighty percent of the contractor’s total construction work force, including any subcontractor work force, measured in labor work hours, is composed of Monterey Bay area residents. (Ord. 99-08 § 1 (part), 1999)

13.02.020 Required documentation.

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

B.    The contractor shall keep, and provide to the city, on forms acceptable to the city, an accurate record documenting compliance with this chapter. Such records shall include: a listing by name and business address of all local recruitment sources contacted by the contractor, the date of the local recruitment contact and the identity of the person contacted, the trade and classification and number of hire referrals requested, the number of local hires made as a result of the contact, the identity and business address of the person(s) hired pursuant to the contact. (Ord. 99-08 § 1 (part), 1999)

13.02.030 Forms submitted under penalty of perjury.

All forms required under this chapter shall be attested to as true as to the information set forth therein and shall be submitted under penalty of perjury. (Ord. 99-08 § 1 (part), 1999)

13.02.040 Binding on subcontractors.

A.    The good-faith local hiring provisions of this chapter shall bind the contractor both with respect to persons hired directly by the contractor and to all persons hired by the contractor’s subcontractors. The contractor shall be responsible for assuring that all subcontractors document such compliance by submitting the forms required by Section 13.02.020 to the city.

B.    The contractor shall include the following language and a copy of this chapter as may be amended from time-to-time in all contracts with contractor’s subcontractors:

“This contract is for labor or materials for a City of Marina public works project. As a subcontractor on a City project, you are required to comply with all of the requirements of the Marina local hiring preference ordinance, Marina Municipal Code, Chapter 13.02, attached hereto and incorporated herein by reference. Failure to comply with the provisions of the local hiring preference ordinance may subject the contractor and/or subcontractor to criminal prosecution and shall subject the contractor and/or subcontractor to disqualification from eligibility for City of Marina contracts.” (Ord. 99-08 § 1 (part), 1999)

13.02.050 Declaration of nonresponsive bidder.

Should any bidder or its subcontractor fail to comply with the good-faith local hiring provisions of this chapter, in its bid submissions prior to awards, the bidder shall be declared by the city to be a nonresponsive bidder. (Ord. 99-08 § 1 (part), 1999)

13.02.060 Declaration of irresponsibility.

Where a city contractor or subcontractor has failed, or the city has cause to believe a bidder shall fail, to abide by a material term or the city contract, applicable prevailing wage laws called for by the contract, other applicable laws governing labor standards or working conditions, any of the provisions of this chapter applicable to contractors or subcontractors, or any of the other provisions of this code which expressly reference the sanctions provided for in this chapter, such contractor, subcontractor or bidder pursuant to procedures outlined in Section 13.02.070, shall be declared an irresponsible contractor. (Ord. 99-08 § 1 (part), 1999)

13.02.070 Finding of noncompliance.

If the city department head with responsibility for contract administration has cause to believe that any contractor or subcontractor has violated this chapter or that any bidder shall not perform the contract in compliance with this chapter, the department head may conduct an investigation. If, upon investigation, the department head determines that evidence exists to conclude that a violation of this chapter has occurred, or that cause exists to indicate a bidder will fail to perform the contract, the department head, after consultation with the city manager or city manager’s designee, shall make a written finding of noncompliance which shall include a declaration of irresponsibility. The written finding of noncompliance shall provide the contractor, subcontractor or bidder with an opportunity to appeal the finding of noncompliance to the city council in accordance with Section 13.02.120. If the council concurs with the finding of noncompliance, it shall affirm that finding along with the declaration of irresponsibility contained therein. The decision of the city council shall be final. (Ord. 99-08 § 1 (part), 1999)

13.02.080 Disqualification.

Any contractor, subcontractor or bidder declared to be irresponsible pursuant to the provisions of this chapter shall be disqualified from eligibility for providing goods, labor, materials or services to the city for a period of one year for the first violation and three years for a second, with a right of review and reconsideration by the city council after two years upon a showing of corrective action indicating violations are not likely to recur. (Ord. 99-08 § 1 (part), 1999)

13.02.090 City attorney prosecution.

If the city attorney has reasonable cause to believe that any contractor or subcontractor has knowingly committed any of the acts or omissions set forth in this chapter, the city attorney may prosecute such contractor or subcontractor for violating the provisions of this chapter. Any such violation shall constitute an infraction. If the violation in question causes a loss to the city in excess of five thousand dollars, the city attorney may prosecute such violation as a misdemeanor. (Ord. 99-08 § 1 (part), 1999)

13.02.100 Contracts—Bid documents—Subcontracts.

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

B.    Contracts and bid documents shall require bidders, contractors and subcontractors to maintain and submit records necessary for monitoring their compliance with this chapter. (Ord. 99-08 § 1 (part), 1999)

13.02.110 Bid protests.

Any contractor or trade association representative on behalf of potential workers of a contractor who has submitted a bid but is not the apparent lowest responsible bidder on a city contract may file a protest. The bid protest shall be filed with the city clerk within three working days of the bid opening. The city council shall hear the bid protest prior to adopting a resolution authorizing the bid award and execution of the contract. In cases where the contract is not executed by the city pursuant to city council resolution, the bid protest shall be heard by the city council prior to the time the city issues a notice to proceed or the appropriate city official executes the contract on behalf of the city. The protesting party may protest the bid award for the city’s or successful bidder’s failure to comply with the requirements of this chapter, the bid documents or any other applicable provision of this chapter. The city council shall sustain a bid process only if it finds evidence that award of the bid would violate the chapter or other applicable law. The decision of the council shall be final. (Ord. 99-08 § 1 (part), 1999)

13.02.120 Appeals.

To avoid results inconsistent with the purposes of this chapter, decisions of the department head or city manager, other than bid protests which are heard separately under Section 13.02.110, may be appealed by the affected contractor or association representative to the city council. (Ord. 99-08 § 1 (part), 1999)

13.02.130 Appeal time limits.

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

B.    Time Limits. When the appeal period ends on a day when the city offices are not open to the public for business, the time limits shall be extended to the next full working day. (Ord. 99-08 § 1 (part), 1999)

13.02.140 Initiation of appeals.

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

1.    A determination or interpretation is not in accord with the purposes of this chapter;

2.    There was an error or abuse of discretion;

3.    The record includes inaccurate information; or

4.    A decision is not supported by the record.

B.    Effect on Decisions. Decisions that are appealed shall not become effective until the appeal is resolved. (Ord. 99-08 § 1 (part), 1999)

13.02.150 Appeal procedure./

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

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

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

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

E.    A decision by the council regarding an appeal shall become final on the date the decision is announced to the public. (Ord. 99-08 § 1 (part), 1999)

13.02.160 Rules and regulations.

The city manager shall adopt an administrative memoranda relating to rules, regulations and procedures to implement this chapter. The administrative memoranda shall be consistent with the provisions of this chapter. (Ord. 99-08 § 1 (part), 1999)

13.02.170 Definitions.

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

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

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

“Qualified individual” means an individual who is in a certified state or federally approved apprenticeship program in an applicable trade or has become a journey person in his or her applicable trade.

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

“Subcontractor” means any person or entity which, pursuant to an agreement or purchase order with a city contractor or another subcontractor, participates in the provision of labor or materials on public works projects for the city. (Ord. 99-08 § 1 (part), 1999)