ORDINANCE NO. 1750
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE, CALIFORNIA, AMENDING AND REPLACING SAN CLEMENTE MUNICIPAL CODE TITLE 3 REVENUE AND FINANCE, CHAPTER 3.40, SECTION 3.40.030 RELATING TO A LOCAL VENDOR PREFERENCE WHEREAS, California Public Contract Code section 2002 allows a local agency to provide for a local vendor preference in awarding contracts within the requirements of such section; and WHEREAS, the City Council of the City of San Clemente has determined that the provision of a Local Vendor Preference Ordinance is in the best interests of the community, the local economy, and the economic stability of the City, and WHEREAS, the City Council has an interest in improving the community by leveraging, to the greatest extent possible, the funds spent contracting with private firms for goods, equipment and services to and for the benefit of the City and its residents, and WHEREAS, the City Council has determined that funds spent locally, with local businesses, provide an enhanced economic benefit to the entire City as reinvestment and recirculation of the funds in the local economy generates taxable transactions, retains and creates local jobs, increases local profits, provides for greater involvement and contributions to local charities, and increases procurement of local goods and services for resale and operations; and WHEREAS, a Local Vendor Preference Ordinance can encourage businesses to compete for City contracting opportunities, locate operations in the City, and encourage existing local businesses to refrain from relocating to different, less expensive areas, and WHEREAS, the provisions enacted by the Ordinance meet the requirements of Public Contract Code section 2002, have a rational relationship to the legitimate governmental purpose by stimulating a local market for services, equipment, materials, supplies and any City funds will stimulate the local economy and reduce unemployment.
NOW, THEREFORE, the City Council of the City of San Clemente, California, hereby ordains as follows:
Section 1: Recitals and Scope
The recitals above are considered true and incorporated into this Ordinance. The scope of this Ordinance is strictly financial. This Ordinance does not allow local applicants to be relieved of any specification, license requirement or any other provision of the Bid or Request for Proposal.
This Ordinance applies only to contracts that involve the expenditure of funds entirely within the City's control where responsibility and quality are equal and shall not apply to contracts that involve the expenditure of funds that are not entirely within the City's control, such as state and federal grant funds, that due to legal restrictions prohibit its application.
Section 2: Environmental Review
This Ordinance is exempt from the provisions of the California Environmental Quality Act (“CEQA”) pursuant to Section 15061(b)(3) of the CEQA Guidelines (14 CCR 15061) because there is no possibility that the activity in question may have a significant effect on the environment and this Ordinance is not a project as defined by CEQA.
Section 3: Amendment to San Clemente Municipal Code section 3.40.030 Section 3.40.030 of the Municipal Code of the City of San Clemente is hereby amended to read in its entirety as follows:
A. Definitions
The following definitions shall apply to this Ordinance:
"Bid" means any response to a City solicitation for bids or proposals. "City" means the City of San Clemente.
"Contract" means a written agreement for the purchase of goods, equipment or services, including construction, for the benefit of the City or its residents. "Contractor" means a person, business or entity awarded a Contract by the City. “Local Vendor”, "Local Business", “Local Contractor”, or “Local Bidder” means a Small Business with a physical location in San Clemente as indicated on an approved Business License. "Proposal" means any response to a City solicitation for bids or proposals. “Small Business” means a business or entity that meets the requirements of a small business enterprise certified pursuant to Article 1 (commencing with Section 14835) of Chapter 6.5 of Part 5.5 of Division 3 of Title 2 of the Government Code as that section may be amended from time to time and that performs a commercially useful function within the meaning of Public Contract Code section 2002(d) as that section may be amended from time to time.
B. Local Business License Required
Any business or entity seeking to apply the provisions of this Local Vendor Preference Ordinance must have a valid business license issued by the City of San Clemente which must be in good standing and must qualify as a Small Business. The business must be physically located in the municipal boundaries of the City of San Clemente. If for any reason the Contractor fails to qualify as a Local Business for more than 60 days during the entire term of the Contract, the City shall be entitled to withhold or recover funds from the Contractor in an amount that represents the value of the Bid or Proposal Preference.
C. Application of Ordinance
When applying the provisions of this Ordinance to a Bid, the City shall apply the preference to the Bid price solely for Bid evaluation purposes such that the total price bid by a Local Business shall be reduced by seven percent of the Bid amount, and the reduced Bid amount shall be deemed the amount of the Bid by the Bidder.
This Ordinance does not create a right to receive a Bid or Proposal preference. The City Council may, at any time before the award of a Contract, determine that it is not in the City's best interest to grant a Bid or Proposal preference and direct staff to award the Contract to the bidder or proposer eligible for the award without consideration of the provisions of this Ordinance.
Local Subcontractors are not eligible for the Local Preference.
D. Local Preference for an Open Bid
If the total combined bid amount submitted by a responsible Local Vendor is not greater than one hundred seven percent (107%) of the apparent low bid and all other rating criteria is considered to be equal, preference shall be given to the responsible Local Vendor, unless waived prior to the contract award by the San Clemente City Council finding the waiver would serve the best interests of the City and the public. However, in no case shall the amount of the preference exceed one hundred fifty thousand dollars ($150,000). This provision shall not apply to contracts required by state or federal statutes and/or regulations to be awarded to the 'lowest responsible bidder', or otherwise exempted from local preference.
E. Local Preference for a Sealed Bid
A seven percent (7%) preference shall be granted to Local Vendors on all sealed bids, unless waived prior to the contract award by the San Clemente City Council finding the waiver would serve the best interests of the City and the public. However, in no case shall the amount of the preference exceed one hundred fifty thousand dollars ($150,000). This provision shall not apply to contracts required by state or federal statutes and/or regulations to be awarded to the 'lowest responsible bidder', or otherwise exempted from local preference.
F. Local Preference Procurement Policy
This Local Vendor Preference Ordinance is intended to act as a procurement policy within the meaning of and in compliance with the requirements of Public Contract Code section 2002(c).
E. Oversight
City staff shall investigate any allegation of potential fraudulent behavior on the part of a entity or individual for the purpose of qualifying for and being awarded a Local Vendor Preference. If the City Council determines after a hearing that a Contractor was not actually qualified as a Local Business at the time that the application for the Local Vendor Preference was made or at the time that the contract was awarded, the City shall be entitled to withhold or recover funds from the Contractor an amount that represents the value of the Bid or Proposal Preference and/or the City may, in its discretion, declare the contract void and the Contractor’s Bid non-responsive and award the contract without regarded to such Bid.
Section 4: Severability
All ordinances or parts of ordinances or resolutions or parts of resolutions in conflict with any applicable law are hereby repealed to the extent of such conflict and no further.
Section 5: Effective Date
This ordinance shall take effect 30 days after passage and proper publication at least once in a newspaper of general circulation in the City of San Clemente.
Section 6: The City Clerk shall certify to the passage of this ordinance and cause the same to be published as required by law, and the same shall take effect as provided by law.
INTRODUCED AND FIRST READ at a regular meeting of the City Council of the City of San Clemente, California, on the 2nd day of May, 2023.
APPROVED AND ADOPTED at a regular meeting of the City Council of the City of San Clemente, California, on _____day of _________________, 2023.
ATTEST:
_______________________________ ___________________________ City Clerk of the City of Mayor of the City of San
San Clemente, California Clemente, California
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, City Clerk of the City of San Clemente, California, hereby certify that Ordinance No. _______ having been regularly introduced at the meeting of _______________________, was again introduced, the reading in full thereof unanimously waived, and duly passed and adopted at a regular meeting of the City Council held on the _____day of _____________, _______, and said ordinance was adopted by the following vote:
AYES:
NOES:
ABSENT:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this _____ day of ______________________, ________. __________________________
CITY CLERK of the City of
San Clemente, California
APPROVED AS TO FORM:
__________________________
Elizabeth A. Mitchell, CITY ATTORNEY
4861-3475-9263 v2
4861-3475-9263 v2
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