HomeMy WebLinkAboutORD 927ORDINANCE NO. 927
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, ENACTING A PUBLIC
CONTRACT CODE
The City Council of the City of Palm Desert does hereby ordain as follows:
Section 1. That Chapter 3.30 is hereby enacted and incorporated into the Code
of the City of Palm Desert of California to read as follows:
"Chapter 3.30
Public Works Contracts and Bidding
Requirements
"3.30.010 Purpose.
Pursuant to the authority set forth in Section 300 of the
Palm Desert Charter, the city may provide local procedures
and requirements for the bidding, award and performance of
public works projects."
"3.30.020 Municipal projects.
A. Contracts for public works projects, including, but
not limited to, those defined in Section 1720 of the Labor
Code, and in Section 20161 of the Public Contracts Code,
shall not be subject to prevailing wage law (Labor Code,
Section 1770 et seq.), except as specified in subsection B of
this section. Any notice inviting bids for such public works
projects shall include notification of this subdivision.
B. The provisions of subsection A of this section shall
not apply when the public works projects are funded in whole
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or in part by state or federal loans, or grants, and payment of
prevailing wages is required in order to receive state or federal
funding."
"3.30.030 Definitions
As used herein,
A. 'Public Project' or'Public Works' means:
(a) A project for the erection, improvement, or
repair of public buildings and works, or other
public projects;
(b) Work in or about streams, embankments
or other works for protection against overflow;
(c) Street or sewer work except maintenance
or repair; and
(d) Furnishing supplies or materials for any
such project including maintenance or repair of
streets.
B. 'Sole Source' means that the particular item called for can only
be supplied by one company, organization or individual.
C. 'Emergency' means a sudden, unexpected occurrence that
poses a clear, eminent danger requiring immediate action to prevent or
mitigate the loss or impairment of life, help, property or essential public
services.
D. "Responsible bidder' means that bidder who can, based upon
quality, fitness and their capacity to satisfactorily perform the proposed work,
based upon attributes of trustworthiness, references and past contracting
experience."
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"Section 3.30.040. When the expenditure required for a
Public Project exceeds $10,000 it should be contracted for and
let to the lowest responsible bidder after notice."
"Section 3.30.050. Notice inviting bids shall specify a date for
the opening of bids. The first publication or posting of the
Notice shall be at least ten (10) days before the date of
opening of bids. Notice shall be published at least twice not
less than five (5) days apart, in a newspaper of general
circulation, printed and published in the city."
"Section 3.30.060. In its sole discretion, the legislative body
may reject any bids presented and re -advertised. If two or
more bids are the same or the lowest, the legislative body may
accept the one it chooses. If no bids are received, the
legislative body may have the project done without further
complying with this chapter in any manner that the Council
may direct. If no bids are received and/or all bids are rejected,
the Council may on a four -fifths (4/5ths) of the Council, declare
that the project can be performed more economically by city
personnel or that a contract to perform the project can be
negotiated with the original bidders at a lower price than any
of the bids or the materials or supplies furnished at a lower
price in the open market. Upon such decision, the Council
may direct the project to be done in the manner stated without
further complying with this Ordinance."
"Section 3.30.070. In the event of an emergency, the Council
may pass a resolution by four -fifths (4/5ths) vote of its
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members declaring that the public interest and necessity
demand the immediate expenditure of public money to
safeguard life, health or property. Upon adoption of such a
resolution, the city may expend any sum required in the
emergency without complying with this chapter. The council
may in addition delegate to the city manager the authority to
order any action necessary pursuant to this section."
"Section 3.30.080. All bids shall be presented under sealed
cover accompanied by one of the following forms of bidders'
security: (a) cash; (b) cashier's check made payable to the
city; and (c) a bidder's bond executed by an admitted surety
insurer made payable to the city. Such security shall be an
amount at least equal to ten percent (10%) of the amount bid.
No bid shall be considered unless security in the form above ;..
set forth is enclosed with said bid."
"Section 3.30.090. If the successful bidder fails to execute the
contract, the bidder's security shall be forfeited to the city. The
city council may on refusal or failure of the successful bidder
to execute such contract award the contract to the next lowest
responsible bidder. If the legislative body awards the contract
to the second low bidder, the amount of the lowest bidder's
security shall be applied by the city to the difference between
the low bid and the second low bid. The surplus if any shall be
utilized to offset any and all costs of preparation and printing
of plans, specifications, estimates of cost, publication of
notices, and any surplus remaining shall be returned to the
lowest bidder who fails to execute the contract."
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"Section 3.30.100. As an alternative to the above set forth
bidding process, the council may permit on building
construction projects or other public projects within the city
requiring advertising for bids for project, cause to be prepared
estimates and documents for a solicitation of bids on a `design
and build' basis. Design and build means a method of
procuring design and construction from a single source. The
selection of the single source occurs before the development
of complete plans and specifications.
The request for submittal shall include all of the
following:
1. A clear and precise description of the services to
be provided and work to be performed;
2. A format for submittals to follow and the elements
that shall be contained therein including the qualifications and
relevant experience of the design professional and the
contractor, the proposed cost of said project and the criteria
that shall be used in evaluating the submittal including the
base bid; and
3. The date on which the submittals are due and the
timetable that will be used in reviewing and evaluating the
submittals.
In addition to the information required in the above
paragraph regarding the qualifications and experience, the
bidders shall submit their proposals with a construction bid
price and all cost information in a separate sealed envelope.
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All submittals received prior to the closing time stated
in the Request for Submittal shall be reviewed to determine
that they meet the format requirements and the standards
specified in the Request for Submittal.
The contract shall be awarded to the bidder meeting in
the sole judgment of the City Council the standards required
and requested at said proposal. "
"Section 3.30.110. The city may in its discretion for public
works or public projects, elect to follow the uniform
uonstr- -.7,±ion cnst methods set forth in Section 22030 of the
Public Contracts Code."
"Section 4.30.120. Relief of Bidders.
No bidder shall be relieved of their bid unless by the
consent of the city council nor shall any change be made in
the bid because of mistake but the bidder may bring an action
against the public entity in a court of competent jurisdiction in
the county where the bids were open. Should the plaintiff fail
to recover judgment, plaintiff shall pay all costs incurred by the
public entity into the suit including reasonable attorneys' fees
fixed by the court. Should the council determine to consent,
the requesting party should provide to the council in written
form the facts that (a) a mistake was made, (b) written notice
was given to the city of that mistake within five (5) days after
the opening of the bids specifying how the mistake occurred,
(c) the mistake made the bid materially different than it was
intended to be, and (d) the mistake was made in filling out the
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bid not due to error in judgment or carelessness in inspecting
the site of the work and reading the plan specifications."
"Section 3.30.130. Section 7100 through Section 7200 of
Public Contracts Code are incorporated herein as if fully set
forth and shall be applicable to city contracts."
"Section 3.30.140. Section 22300 of the Public Contracts
Code is incorporated herein as if fully set forth and shall be
applicable to the retention of proceeds for city contracts."
"Section 3.30.150. All bids received by the city in response to
notice of bidding or requests for proposals or for design build
shall be and remain confidential until the same are presented
to the council for determination and in the event there are
alternates in said bids, the presentation to the council shall
allow the determination of the alternates to be made in a
manner so that the names of the bidders are unknown until
such time as a determination of alternates has been made."
"Section 3.30.160. Preservation of Rights and Remedies.
Nothing in this chapter limits or diminishes any rights or
remedies, either legal or equitable, which:
(a) An original or substituted subcontractor may
have against the prime contractor, his or her successors or
assigns.
(b) The city may have against the prime contractor,
his or her successors or assigns, including the right to take
over and complete the contract."
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"Section 3.30.170. Contents of Bids or Offers. }
Any city official taking bids for the construction of any
public work or improvement shall provide in the specifications
prepared for the work or improvement or in the general
conditions under which bids will be received for the doing of
the work incident to the public work or improvement that any
person making a bid or offer to perform the work, shall, in his
or her bid or offer, set forth: The name and the location of the
place of business of each subcontractor who will perform work
or labor or render service to the prime contractor in or about
the construction of the work or improvement, or a
subcontractor licensed by the State of California who, under
subcontract to the prime contractor, specially fabricates and
installs a portion of the work or improvement according to
detailed drawings contained in the plans and specifications, in
an amount in excess of one-half of 1 percent of the prime
contractor's total bid."
"Section 3.30.180. Failure to Specify or Specification of
More than One Subcontractor; Performance by Prime
Contractor.
If a prime contractor fails to specify a subcontractor or
if a prime contractor specifies more than one subcontractor for
the same portion of work to be performed under the contract
in excess of one-half of 1 percent of the prime contractor's
total bid, the prime contractor agrees that he or she is fully
qualified to perform that portion himself or herself, and that the
prime contractor shall perform that portion himself or herself."
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"Section 3.30.190. Prime Contractor Whose Bid Is
Accepted; Prohibitions.
A prime contractor whose bid is accepted may not:
(a) Substitute a person as subcontractor in place of
the subcontractor listed in the original bid, except that the
awarding authority, or its duly authorized officer, may, except
as otherwise provided in Section 3.30.190, consent to the
substitution of another person as a subcontractor in any of the
following situations:
(1) When the subcontractor listed in the bid after
having had a reasonable opportunity to do so fails or refuses
to execute a written contract, when that written contract, based
upon the general terms, conditions, plans and specifications
for the project involved or the terms of that subcontractor's
written bid, is presented to the subcontractor by the prime
contractor.
(2) When the listed subcontractor becomes bankrupt
or insolvent.
(3) When the listed subcontractor fails or refuses to
perform his or her subcontract.
(4) When the listed subcontractor fails or refuses to
meet the bond requirements of the prime contractor as set
forth in Section 3.30.210.
(5) When the prime contractor demonstrates to the
awarding authority, or its duly authorized officer, subject to the
further provisions set forth in Section 3.30.190, that the name
of the subcontractor was listed as the result of an inadvertent
clerical error.
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(6) When the listed subcontractor is not licensed
pursuant to the Contractors License Law.
(7) When the awarding authority, or its duly
authorized officer, determines that the work performed by the
listed subcontractor is substantially unsatisfactory and not in
substantial accordance with the plans and specifications, or
that the subcontractor is substantially delaying or disrupting
the progress of the work.
(8) When the listed subcontractor is ineligible to
work on a public works project pursuant to Section 1777.1 or
1777.7 of the Labor Code.
Prior to approval of the prime contractor's request for
the substitution in the awarding authority, or its duly authorized
.. officer, shall give notice in writing to the listed subcontractor ofq}
the prime contractor's request to substitute and of the reasons
for the request. The notice shall be served by certified or
registered mail to the last known address of the subcontractor.
The listed subcontractor who has been so notified shall have
five working days within which to submit written objections to
the substitution to the awarding authority. Failure to file these
written objections shall constitute the listed subcontractor's
consent to the substitution.
If written objections are filed, the awarding authority
shall give notice in writing of at least five working days to the
listed subcontractor of a hearing by the awarding authority or
its designated agent on the prime contractor's request for
substitution.
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(b) Permit a subcontract to be voluntarily assigned
or transferred or allow it to be performed by anyone other than
the original subcontractor listed in the original bid, without the
consent of the awarding authority, or its duly authorized
officer.
(c) Other than in the performance of 'change orders'
causing changes or deviations from the original contract,
sublet or subcontract any portion of the work in excess of one-
half of 1 percent of the prime contractor's total bid as to which
his or her original bid did not designate a subcontractor."
"Section 3.30.200. Claim of Inadvertent Clerical Error in
Listing Subcontractors; Notice; Objection; Hearing.
The prime contractor as a condition to assert a claim of
inadvertent clerical error in the listing of a subcontractor shall
within two working days after the time of the prime bid opening
by the awarding authority give written notice to the awarding
authority and copies of that notice to both the subcontractor he
or she claims to have listed in error and the intended
subcontractor who had bid to the prime contractor prior to bid
opening.
Any listed subcontractor who has been notified by the
prime contractor in accordance with this section as to an
inadvertent clerical error shall be allowed six working days
from the time of the prime bid opening within which to submit
to the awarding authority and to the prime contractor written
objection to the prime contractor's claim of inadvertent clerical
error. Failure of the listed subcontractor to file the written
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notice within the six working days shall be primary evidence of
his or her agreement that an inadvertent clerical error was
made.
The awarding authority may, after a public hearing as
provided in Section 3.30.190 and in the absence of compelling
reasons to the contrary, consent to the substitution of the
intended subcontractor."
"Section 3.30.210. Faithful Performance and Payment
Bonds of Subcontractors.
(a) It shall be the responsibility of each
subcontractor submitting bids to a prime contractor to be
prepared to submit a faithful performance and payment bond
or bonds if so requested by the prime contractor.
(b) In the event any subcontractor submitting a bid
to a prime contractor does not, upon the request of the prime
contractor and at the expense of the prime contractor at the
established charge or premium therefor, furnish to the prime
contractor a bond or bonds issued by an admitted surety
wherein the prime contractor shall be named the obligee,
guaranteeing prompt and faithful performance of the
subcontract and the payment of all claims for labor and
materials furnished or used in and about the work to be done
and performed under the subcontract, the prime contractor
may reject the bid and make a substitution of another
subcontractor subject to Section 3.30.190.
(c)(1) The bond or bonds may be required under this
section only if the prime contractor in his or her written or
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published request for sub -bids clearly specifies the amount
and requirements of the bond or bonds.
(2) If the expense of the bond or bonds required
under this section is to be borne by the subcontractor, that
requirement shall also be specified in the prime contractor's
written or published request for sub -bids.
(3) The prime contractor's failure to specify bond
requirements, in accordance with this subdivision, in the
written or published request for sub -bids shall preclude the
prime contractor from imposing bond requirements under this
section."
"Section 3.30.220. Subletting or Subcontracting Portion in
Excess of Certain Percent of Prime Contractor's Total Bid
to which No Subcontractor Was designated in Original
Subletting or subcontracting of any portion of the work
in excess of one-half of 1 percent of the prime contractor's
total bid as to which no subcontractor was designated in the
original bid shall only be permitted in cases of public
emergency or necessity, and then only after a finding reduced
to writing as a public record of the city setting forth the facts
constituting the emergency or necessity."
"Section 3.30.230. Violations of Chapter and Contracts;
Cancellation or Penalty: Notice and Hearing.
A prime contractor violating any of the provisions of this
chapter violates his or her contract and the awarding authority
may exercise the option, in its own discretion, of (1) canceling
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his or her contract or (2) assessing the prime contractor a
penalty in an amount of not more than 10 percent of the
amount of the subcontract involved, and this penalty shall be
deposited in the fund out of which the prime contract is
awarded. In any proceedings under this section the prime
contractor shall be entitled to a public hearing and to five days'
notice of the time and place thereof."
"Section 3.30.240. Subcontractor and Prime Contractor.
As used in this chapter, the word 'subcontractor shall
mean a contractor, within the meaning of the provisions of
Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code, who contracts directly with
the prime contractor."
"3.30.250 Professional Services Firms
A. The selection of design professionals shall, in addition to
consideration of costs, meet the standards set forth in Chapter 10
(commencing with Section 4525) of Division 5 of Title 1 of the Government
Code. Cost of the services in addition to the professional qualifications shall
be utilized in the selection process."
"3.30.260 Other Governmental Agencies.
The city may participate with other governmental agencies such as
the State of California, County of Riverside, or any other cities who have,
through a bidding process, determined to award or purchase, supplies,
merchandise, or other items needed by the city which program of other
governmental agency allows participation by this city."
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"3.30.270 Change Orders and Interim Services
A. Any change orders for contracts awarded under this Chapter
3.30 to the extent the change order does not exceed twenty percent (20%)
of the contingency provided for in the bidding process and, in addition, does
not exceed as an individual change order of $20,000, the same may be
approved by the city manager or his designed representative. Approvals by
the city manager or his designated representative under this section shall
not exceed fifty percent (50%) of the approved contingency. Change orders
exceeding $20,000 or exceeding fifty percent (50%) of the contingency
provided shall be approved only by the city council. The city manager shall
report his actions to the council on any change orders at the next regular
council meeting.
B. The city manager or his designed representative or the
executive director of the redevelopment agency may approve selections on
an interim basis professional services consultants pursuant to Section
3.30.250 in an amount not to exceed $10,000. Any actions under this
section shall be reported to the city council at its next regular meeting."
Section 2. The city clerk shall certify to the passage and adoption of this
Ordinance and shall cause the same to be published once and the same shall be in full
force and effect thirty (30) days after its adoption.
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PASSED, APPROVED AND ADOPTED this 27th day of .January ._ :',
2000, by the City Council of the City of Palm Desert, California, by the following vote, to
wit:
AYES: Benson, Ferguson, Kelly, Spiegel, Crites
NOES: None
ABSENT: None
ABSTAIN: None
BUFO 'A. C E , Mayor
City o Paim Desert, California
ATTEST:
By
RACHELLE D. KLASSEN, ACTING CITY CLERK
City of Palm Desert, California
APPROVED AS TO FORM:
BY —
DAVID J. E IN, City Attorney
City of Palm Desert, California
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