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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James F. Penman
Subject: Authorization to Join Amicus Brief in Support of
the City of Thousand Oaks
Dept: CITY ATTORNEY
Date: February 3, 2000
ORIGINAL
Synopsis of Previous Council action:
None.
Recommended motion:
Authorize the City of San Bernardino to join amicus brief in support of the City of Thousand Oaks.
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() Signature
Contact person: Robert 1. Simmons
Phone:
5355
Supporting data attached:
Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount: None
Source:
Finance:
Council Notes:
Agenda Item No. :1..1
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STAFF REPORT
Council Meeting Date: Februarv 22. 2000
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: February 7, 2000
AGENDA ITEM: Authorization to Join Amicus Brief in Support of the City of
Thousand Oaks
The City of Thousand Oaks is requesting amicus support in the above matter from
an adverse trial judgment.
Thousand Oaks issued a public works contract for $64,000,000 for its Civic Center.
Amelco bid the electrical sub-contract at $6.1 million. The bid was made with low profit and
no overhead.
During the job, 32 change orders totaling $1.1 million were processed.
After the job was completed, Amelco sued for its "total cost recovery" in the sum of
$1.7 million. A verdict was rendered in favor of the contractor.
The theory of recovery is that due to the numerous changes, the City has, in effect,
abandoned the contract. Therefore, the contractor is entitled to recover all of its costs
including its lost profit and overhead.
The sub-contractor is converting this public works contract into a lawsuit for quantum
meruit, as a cost plus profit contract. Such relief is generally denied in public works
contracts. Changes are contemplated in any public works contracts. The changes amount
to only 1.8% of the contract price and do not justify the extraordinary relief granted by the
court.
The City Attorney recommends that the City of San Bernardino join in the amicus
brief in the Court of Appeal. There is no cost to the City for doing so.