CA Review CKM
Meeting Date: May 20, 2025
To: Mayor and City Council
From: Geoff Patnoe, City Manager
Staff Contact: Hossein Ajideh, Engineering Manager
[email protected], 442-339-2756
Subject: Continuing the Declaration of Existence of an Emergency Condition in the Kelly Drive Channel and Continuation of Authorization for Performance of Repair Work Without Formal Bidding
District: 1
Recommended Action
Adopt a resolution continuing the declaration of the existence of an emergency condition in the Kelly Drive Channel and continuing to authorize the City Manager to have the repair work performed without formal bidding.
Executive Summary
A portion of the concrete sidewall of the Kelly Drive Channel, a drainage channel west of the intersection of El Camino Real and Kelly Drive, was found to have failed and slipped into the channel in September 2024. Staff hired a contractor under an emergency repair contract to restore the failed portion of the embankment, but subsequent inspections revealed unseen and unexpected failures that posed a clear and imminent danger, with the risk of further erosion and undermining of the channel, that required additional immediate repair work. • On April 29, 2025, the City Council declared the existence of an emergency condition in the Kelly Drive Channel and authorized the City Manager to have the emergency repair performed as swiftly as possible using emergency construction procurement procedures rather than the formal bidding process. (Resolution No. 2025-094) • The City Council continued the declaration of the existence of an emergency condition in the Kelly Drive Channel on May 13, 2025. (Resolution No. 2025-106) Staff are currently reviewing and evaluating proposals from contractors to perform the emergency repair work, with a plan to select a contractor in the upcoming week. Staff are also continuing to coordinate the revised project scope with the appropriate environmental permitting agencies.
Staff are requesting that the City Council continue the declaration of the existence of an emergency condition in the Kelly Drive Channel and continue to authorize the City Manager to have the emergency repairs performed using emergency construction procurement procedures, in accordance with Carlsbad Municipal Code Section 3.28.110(A).
May 20, 2025
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A four-fifths vote is required under Carlsbad Municipal Code Section 3.28.120 and California Public Contract Code Section 22050.
Explanation & Analysis
Background
• The Kelly Drive Channel was constructed in the 1960s. (Exhibit 2 shows the channel’s location.) It required localized emergency repairs in 2010, 2018 and 2019 at separate locations.
• Part of the concrete embankment was found to have fallen into the channel last September. This failure exposed the underlying material and increased the risk of erosion and undermining.
• The City Manager approved a contract with N.M.N. Construction, Inc. on Feb. 24, 2025, to perform the emergency repair for an amount not to exceed $97,000. This work was authorized by an emergency permit issued by the U.S. Army Corps of Engineers and in coordination with other regulatory agencies.
• The contractor began the repair work on March 25, 2025. Draining the area exposed additional failures that had not been anticipated, including a 13-foot deep hole in the channel’s earthen bottom, beneath the failed concrete side section. These unseen and unexpected failures posed a clear and imminent danger, requiring additional immediate repair work to prevent further erosion damage, including filling the hole, stabilizing the channel and making structural repairs. This required the project to be expanded beyond the work described in the contract.
• Staff consulted with a geotechnical engineering firm to obtain an appropriate repair plan for the expanded project, which is expected to cost approximately $350,000.
Emergency declaration
Public projects that cost more than $220,000 require formal bidding procedures under the California Uniform Public Construction Cost Accounting Act. However, those procedures can take up to six months and the failure in the channel required more immediate action to prevent or mitigate the loss or impairment of life, health, property or essential public services.
Carlsbad Municipal Code Section 3.28.110(A) implements California Public Contract Code Section 22035, which provides for an exemption from formal bidding procedures for emergency construction procurements. To use the emergency exemption, Carlsbad Municipal Code Section
3.28.120 and Public Contract Code Section 22050 require the City Council to determine the existence of an emergency condition by a four-fifths vote. The City Manager may then immediately proceed with the repair work without following the formal bidding procedures.
The City Council determined the failure in the channel was an emergency condition on April 29, 2025. (Resolution No. 2025-094. The staff report that recommended that determination is provided as Exhibit 3.) The City Council continued the declaration of an emergency condition on May 13, 2025 (Resolution No. 2025-106. The staff report that recommended continuation is provided as Exhibit 4.)
Staff have since received proposals from contractors and are currently reviewing and evaluating them, expecting to select a contractor in the upcoming week or two.
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Staff have also coordinated with regional environmental permitting agencies, including the U.S.
Army Corps of Engineers and the San Diego Regional Water Quality Control Board, on the project’s expanded scope.
Staff are requesting that the City Council continue the declaration of the existence of an emergency condition in the Kelly Drive Channel so that the City Manager is authorized to have the emergency repairs performed using emergency construction procurement procedures.
Fiscal Analysis
Sufficient funding is available for the work in the account for the Kelly Drive Channel Repair Project, Capital Improvement Program Project No. 6606, as shown in the table below, so staff are not requesting any additional appropriation.
Carlsbad Municipal Code Sections 3.28.040(C)(5) and 3.28.090(B) authorize the City Manager or designee to approve change orders in an amount equal to the contingency set at the time of the project is awarded, which for this project is $88,000.
Next Steps
Staff will continue to evaluate the submitted proposals and anticipate selecting a contractor within the next week or two.
The City Manager will terminate the initial contract with N.M.N. Construction, Inc. upon award of the subsequent contract.
The repair is expected to start shortly after the contract is awarded and to be completed by mid-2025.
Staff will return to the City Council on June 10, 2025, to review the emergency action and ask the City Council to determine by a four-fifths vote whether there is a need to continue it.
Kelly Channel Drive Repair Project
Capital Improvement Program Project No. 6606
Total appropriation to date $3,641,000
Total expenditures and encumbrances to date -$755,096,547 Total available funding $2,885,904
Construction contract (estimated) -$350,000
Construction contingency (estimated) -$88,000
Construction management, inspection, material testing and support services (estimated) -$88,000
Total estimated construction costs -$526,000
Remaining balance after total estimated construction costs $2,359,904 Additional appropriation needed $0
May 20, 2025
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Environmental Evaluation
The proposed action is statutorily exempt from environmental review under California Environmental Quality Act, or CEQA, Section 21080(b)(2) and (4) and CEQA Guidelines Section 15269(b)-(c), which apply to emergency repairs to publicly owned service facilities necessary to maintain service essential to the public health, safety or welfare and other specific actions necessary to prevent or mitigate an emergency.
Exhibits
1. City Council resolution
2. Location map
3. April 29, 2025, staff report (on file in the Office of the City Clerk)
4. May 13, 2025, staff report (on file in the Office of the City Clerk)
May 20, 2025
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Docusign Envelope ID: 546505F1-49C4-4F0B-AEEE-29CED7DA2367 RESOLUTION NO. 2025-113
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA,
CONTINUING THE DECLARATION OF THE EXISTENCE OF AN EMERGENCY
CONDITION IN THE KELLY DRIVE CHANNEL AND CONTINUING TO AUTHORIZE
THE CITY MANAGER TO HAVE THE REPAIR WORK PERFORMED WITHOUT
FORMAL BIDDING
WH
EREAS, on April 29, 2025, the City Council adopted Resolution No. 2025- 094, declaring the existence of an emergency condition in the Kelly Drive Channel and authorizing the City Manager to have the repair work performed without formal bidding; and
WHEREAS, on May 13, 2025, the City Council adopted Resolution No. 2025 -106, continuing the declaration of the existence of an emergency condition in the Kelly Drive Channel and continuing to authorize the City Manager to have the repair work performed without formal bidding; and WHEREAS, the Kelly Drive Channel has required multiple localized emergency repairs since 2010; and
WHEREAS, in September 2024, another failure occurred in a different segment of the channel where a portion of the concrete sidewall had slipped into the channel, which exposed the underlying material and increased the risk of erosion and undermining; and WHEREAS, staff inspected the site and subsequently initiated an emergency repair contract to restore the failed portion of the channel embankment through an emergency permit issued by the U.S.
Army Corps of Engineers and in consultation with other regulatory agencies; and WHEREAS, on Feb. 24, 2025, the City Manager approved a contract to perform the emergency repair with N.M.N. Construction, Inc. in an amount not to exceed $97,000, which is below the threshold for formal bidding; and
WHEREAS, on March 25, 2025, the contractor initiated the repair work with dewatering activities, exposing further unseen and unexpected failures within the channel bed, including a 13-foot deep void at the base of the earthen bottom of the failed concrete side section; and WHEREAS, these unseen and unexpected failures pose a clear and imminent danger, requiring additional, immediate repair work, including void backfill, channel stabilization and structural remediation, to ensure long-term structural stability and prevent further failures; and WHEREAS, the estimated cost of the expanded repair work exceeds the formal bidding threshold and the formal bidding process could take up to six months; and Exhibit 1
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Docusign Envelope ID: 546505F1-49C4-4F0B-AEEE-29CED7DA2367 W HEREAS, the expanded repair work requires prompter action than formal bidding permits to prevent or mitigate the loss or impairment of life, health, property or essential public services; and WHEREAS, in the case of an emergency, the Carlsbad Municipal Code, or CMC, Sections 3.28.110(A) and 3.28.120 and Public Contract Code Sections 22035 and 22050 allow the City Council by a four -fifths vote to authorize repair or replacement of a public facility, take any directly related and immediate action required by the emergency, and procure the necessary equipment, services and supplies for these purposes without following formal bidding procedures; and WHEREAS, staff request that the City Council review the emergency action and continue to declare the existence of an emergency condition in the Kelly Creek Channel and continue to authorize the City Manager to have the needed repair work performed using emergency procurement procedures; and WHEREAS, the expanded emergency repair is estimated to cost approximately $350,000, not including contingency and other construction support costs; and WHEREAS, sufficient funding is available in the account for the Kelly Drive Channel Repair Project, Capital Improvement Program, or CIP, Project No. 6606; and WHEREAS, CMC Sections 3.28.040(C)(5) and 3.28.090(B) authorize the City Manager or designee to approve change orders in an amount equal to the contingency set at the time of project award, which for this project is estimated to be $88,000; and
WHEREAS, following the declaration of an emergency condition, staff received proposals from contractors and are evaluating them; and
WHEREAS, staff anticipate selection of a contractor in the next week or two; and WHEREAS, staff also engaged with the appropriate environmental permitting agencies, including the U.S. Army Corps of Engineers and the San Diego Regional Water Quality Control Board, to coordinate review and compliance with the revised project scope.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the proposed action is statutorily exempt from environmental review under California Environmental Quality Act, or CEQA , Section 21080(b)(2) and (4) and CEQA Guidelines Section 15269(b)-(c), which apply to emergency repairs to publicly owned service facilities necessary to maintain service essential to the public health, safety or welfare and other specific actions necessary to prevent or mitigate an emergency.
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3. That the City Council continues to declare the existence of an emergency condition in the Kelly Drive Channel.
4. That the City Manager is authorized to have the required emergency repairs performed, take any directly related and immediate action required by the emergency condition, and procure the necessary equipment, services, and supplies for these purposes, without following formal bidding procedures.
5. That the City Manager or designee is authorized to approve construction change orders for up to $88,000 for the project.
6. That the City Manager or designee is authorized to sign all other documents necessary for regulatory compliance, to extend funding opportunities, or to otherwise implement and finalize the emergency repair work, all of which are subject to review and appro val as to form by the City Attorney’s Office.
7. That the City Manager is directed to return to the City Council at the next regularly scheduled City Council meeting for a determination by a four -fifths vote whether the emergency condition continues to exist.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on
the 20th day of May, 2025, by the following vote, to wit:
AYES: Blackburn, Bhat-Patel, Acosta, Burkholder, Shin.
NAYS:
None.
ABSTAIN: None.
ABSENT: None.
________________________
______________
KEITH BLACKBURN, Mayor
______________________________________
S
HERRY FREISINGER, City Clerk
(SEAL)
May 20, 2025
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EL CAMINO REAL
PARK DR
KELLY DRAVILA AV
HILLSIDE DR
NEBLINA DR
CORDOBA PL
REFUGIO AV
LOMA LAGUNA DR
HIGH RIDGE AV
SEVILLA WY
REFUGIO AV
PROJECT NAME EXHIBIT
2 KELLY DRIVE CHANNEL
EMERGENCY REPAIR
4866 KELLY DR
LOCATION MAP
CARLSBAD
VISTAOCEANSIDE
ENCINITAS
SAN MARCOS
Vicinity Map
SITE
³
NOT TO SCALE
³
NOT TO SCALE
PLOT DATE: 4/21/2025 PATH: T:\David_Edwards\LocationMap\KellyChannel\KellyChannel.mxdAuthor: Andy Chang
PROJECT SITE
Exhibit 2
May 20, 2025
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April 29, 2025, staff report
(on file in the Office of the City Clerk)
May 20, 2025
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M
ay 13, 2025, staff report
(on file in the Office of the City Clerk)
May 20, 2025
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