HomeMy WebLinkAboutOrd 2018-3420
ORDINANCE NO. 3420
ORDINANCE OF THE CITY OF CHULA VISTA AMENDING
CHULA VISTA MUNICIPAL CODE SECTION 2.56
(PURCHASING SYSTEM) TO ADD JOB ORDER
CONTRACTING (JOC) AS A PROCUREMENT METHOD
AND ESTABLISH RELATED POLICIES AND PROCEDURES,
ESTABLISH UNIFORM POLICIES AND PROCEDURES FOR
DEVELOPER-PERFORMED PUBLIC WORKS, EXEMPT THE
CITY’S PURCHASING SYSTEM FROM THE
REQUIREMENTS OF THE CALIFORNIA PUBLIC
CONTRACT CODE, AND PROVIDE FOR AUTOMATIC
INDEXED ADJUSTMENTS TO JOC DOLLAR THRESHOLDS
WHEREAS, on November 4, 2014, Chula Vista voters approved modifications to City
Charter Sections 1009, 1010, and 1011 (Measure A) which, among other things, delegated
authority to the City Council to establish procurement policies and procedures for awarding City
contracts; and
WHEREAS, job order contracts (JOCs) are a procurement method designed to streamline
the process of awarding small, repetitive construction contracts for minor or recurring tasks, such
as repair or renovations that involve minimum design requirements; and
WHEREAS, staff recommends establishing JOC procurement policies and procedures in
order to enhance the value, efficiency, and flexibility of the City’s procurement practices; and
WHEREAS, the currently proposed additions and amendments to the purchasing
ordinance are consistent with the above-referenced Charter Amendment and preserve appropriate
checks and balances; and
WHEREAS, in order to maintain transparency, staff will periodically submit to the City
Council reports evaluating the advantages and disadvantages of the City’s use of JOCs; and
WHEREAS, staff recommends periodically increasing the monetary limits for JOCs
based on the Engineering News Record (ENR) Construction Index in the same manner and to the
same extent as public works contracts and cooperative purchasing agreements under the City’s
current purchasing ordinance; and
WHEREAS, it is common practice in the City of Chula Vista, and elsewhere, to have
private developers construct public works related to or required in connection with private
projects in order for project components to be constructed in a coordinated and efficient manner
that maximizes the value of both public and private resources, and allocates risks of performance
of the public works to developers, as appropriate. Accordingly, certain City public works have
been and will continue to be constructed by or at the direction of developers and property-owners
and subsequently dedicated back to or acquired by the City of Chula Vista (“Developer-
Performed Public Works”) in connection with the completion of otherwise private development
projects; and
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WHEREAS, it is desirable to amend the City’s purchasing ordinance to codify the City’s
policies and procedures relative to Developer-Performed Public Works in order to allow for the
completion of public works done in conjunction with private works while still providing
appropriate safe guards to protect the public interest.
NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows:
Section I.
A. Chapter 2, Section 2.56.010 (Centralized purchasing system established) is
amended to read as follows:
Pursuant to Section 1010 of the City Charter, there is established a centralized purchasing system
for City departments, offices, and agencies, in order to (1) establish procedures for the purchase,
lease or other acquisition of services, supplies and equipment, at the lowest possible cost
commensurate with quality needed, (2) exercise positive financial control over purchases, (3)
clearly define authority for the purchasing function, and (4) assure the quality of purchases.
Pursuant to section 1100.7 of the Public Contract Code and the City Charter, except as provided
by ordinance or as required by law, the City of Chula Vista is exempt from the requirements of
the California Public Contract Code.
B. Chapter 2 of the Chula Vista Municipal Code is amended to add section 2.56.145
to read as follows:
2.56.145 Job Order Contracts
A. In General. City of Chula Vista Charter Sections 1009, 1010, and 1011 (Measure A), among
other things, delegate authority to the City Council to establish procurement policies and
procedures for awarding City construction contracts. The purpose of this section is to add job
order contracting procurement policies and procedures and to provide definitions and guidelines
for the award, use, and evaluation of Job Order Contracts.
B. Definitions. “Job Order Contract” means a construction contract for minor or recurring
construction tasks, including repairs, renovations, and alterations, with minimal design
requirements, at a fixed price and for an indefinite quantity which are awarded on a unit price
basis for all necessary labor, materials, and equipment. “Task Order” means an authorization to
perform construction work under a Job Order Contract.
C. Implementation.
1. Job Order Contracts.
a. Competitive Process. Job Order Contracts shall be procured through a
competitive process that the Purchasing Agent determines to be consistent
with good procurement practices.
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b. Term. Job Order Contracts shall have a term of no longer than four (4)
years. Job Order Contracts may have a duration of more than four (4)
years only if necessary to complete outstanding Task Orders issued during
the four (4) year term, or as otherwise approved by the City Council.
c. Specifications. The advertisement for bids and specifications shall include
line item unit prices and detailed technical specifications for each
construction task to be performed under the Job Order Contract.
d. Contractor Adjustment. Contractors submitting bids on a Job Order
Contract shall state in their bids an adjustment on a percentage basis either
increasing or decreasing the preset unit prices for all construction tasks in
the bid documents.
e. Awarding Authority. The Awarding Authority for Job Order Contracts
shall be as follows: Purchasing Agent for contracts with a Maximum
Contract Amount of $2,000,000 or less; City Council for contracts with a
Maximum Contract Amount of more than $2,000,000 (“Job Order
Contract Awarding Authority”).
f. Periodic Review. The City Manager, or his designee, shall monitor the
City’s use of Job Order Contracts and provide periodic informational
reports regarding the observed advantages and disadvantages of the use of
Job Order Contracts.
2. Task Order(s).
a. Scope. Each Task Order shall include a detailed scope of work and time
certain for completion of the work.
b. Task Order Price. The Task Order price shall be no more than the sum of
the applicable unit prices and the contractor’s bid adjustment factor. The
Task Order price shall not exceed $2,000,000 (“Maximum Task Order
Amount”).
c. No Subdivision of Work. City staff shall not subdivide work that logically
should be performed as a single Task Order into multiple Task Orders for
purposes of avoiding the Task Order limits in this section.
d. Awarding Authority. The Awarding Authority for Task Orders shall be
the Purchasing Agent (“Task Order Awarding Authority”).
e. Change Orders. The Task Order Awarding Authority shall have the
authority to approve change orders for a Task Order up to the Maximum
Task Order Amount. The City Council shall have sole authority to
approve change orders that exceed the Maximum Task Order Amount.
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f. Rejection of Task Order Proposals. The Task Order Awarding Authority
may reject any and all Task Order proposals, waive minor defects in any
Task Order proposal, or complete the scope of work contained in a Task
Order proposal by means of other authorized procurement methods, if the
Task Order Contract Awarding Authority determines that such action is
necessary or appropriate for the benefit of the public.
C. Chapter 2, Section 2.56.160.B, of the Chula Vista Municipal Code is amended to read
as follows:
B. Contract Awarding Authority. Notwithstanding subsection (A) of this section, the contract
awarding authority for public works contracts shall be as follows: maximum contract amount of
$100,000 or less: Purchasing Agent; maximum contract amount over $100,000 and up to
$250,000: City Manager; maximum contract amount in excess of $250,000: City Council
(“public works awarding authority”).
D. Chapter 2 of the Chula Vista Municipal Code is amended to add sub-section
2.56.160.H to read as follows:
H. Developer-Performed Public Works. This section shall apply to Public Works (as defined by
the Charter of the City of Chula Vista, as amended) that are to be constructed, or designed and
constructed, by or at the direction of a developer or private property-owner and subsequently
accepted by, dedicated to, or acquired by the City of Chula Vista (“Developer-Performed Public
Work”).
1. Procurement. A Developer-Performed Public Work shall be procured pursuant to
one of the following project contracting methods:
a. Competitive Bid or Solicitation. A developer may award a contract for a
Developer-Performed Public Work by competitive bid or solicitation in
compliance with all applicable requirements of this section.
b. Sole Source. A developer may award a contract for a Developer-Performed
Public Work on a sole source basis where, in addition to compliance with all
applicable requirements of this section:
i. City makes findings that an award of a sole source contract is in the
best interest of the public because of the particular (i) performance
capabilities of the proposed entity or contractor, (ii) project
characteristics, (iii) manufacturing processes, (iv) compatibility
requirements, and/or (v) market or other conditions/circumstances that
render the award of a sole source contract to be in the best interest of
the public; and
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ii. The entity or contractor awarded a contract for a Developer-Performed
Public Work competitively bids all subcontracts for the Developer-
Performed Public Work.
c. Developer as Design-Build Entity or Prime Contractor. A developer may act
as a design-build entity or prime contractor for a Developer-Performed Public
Work where, in addition to compliance with all applicable requirements of
this section:
i. Developer provides written notice to City of its intent to act as a
design-build entity or prime contractor and provides information
demonstrating its competence and qualifications to perform the
Developer-Performed Public Work;
ii. City determines, in City’s sole discretion, that the developer is
competent and qualified to complete the Developer-Performed Public
Work and authorizes the developer to proceed with the Developer-
Performed Public Work; and
iii. Developer competitively bids all subcontracts for the Developer-
Performed Public Work.
2. Bid and Award.
a. Authorization To Proceed. If a Developer-Performed Public Work is not
otherwise authorized by means of an approved agreement with the City or
other approved action of the City, a developer shall be required to: (i) obtain
prior written approval of the City Manager, or designee, to proceed with a
Developer-Performed Public Work with an estimated maximum contract
value of $2,000,000 or less; or (ii) obtain approval of the City Council, by
resolution, to proceed with a Developer-Performed Public Work with an
estimated maximum contract value of more than $2,000,000. Failure to
comply with the procedures in this section may, in City’s discretion, result in
a waiver of all claims for payments by City, bond drawdowns, or
Development Credits (as hereinafter defined) to Developer in connection with
a Developer-Performed Public Work.
b. Bid and Contract Documents. Developer shall prepare, or cause to be
prepared, bid documents (except with respect to prime contracts awarded
pursuant to section 2.56.160.H.1.b) and contract documents for a Developer-
Performed Public Work in accordance with all local codes, City design
guidelines, and project-specific design guidelines, subject to City approval.
The bid and contract documents shall include, without limitation, detailed
plans and technical specifications, bonding requirements, insurance
requirements, prevailing wage requirements, mandates for timely completion,
and remedies for untimely completion.
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c. Competitive Solicitation of Bids. Developer shall solicit, or cause to be
solicited, sealed competitive bids for prime contracts (except for prime
contracts awarded pursuant to section 2.56.160.H.1.b) and subcontracts for a
Developer-Performed Public Work on a guaranteed maximum price, lump
sum price, or per unit, line item basis and in accordance with industry
standard procurement practices as determined by City. A developer may
combine into one bid solicitation the construction of a Developer-Performed
Public Work and other development work, but the bid and contract documents
must clearly separate the Developer-Performed Public Work from other
development work to be performed, in a manner and form as approved by
City. Any consultant retained by a developer to assist in the preparation of
bid or contract documents (including without limitation preliminary/concept
designs), or to assist in the solicitation of bids for a Developer-Performed
Public Work, shall not be eligible to submit a bid for or be awarded a
subsequent contract for that Developer-Performed Public Work.
d. Award of Contract. Developer shall award contracts (except for contracts
awarded pursuant to section 2.56.160.H.1.b), and shall award, or shall cause
the applicable entity or contractor to award subcontracts for a Developer-
Performed Public Work to the lowest responsive and responsible bidder, or
the bidder that is determined by developer to be the “best qualified
contractor”, subject to City approval. When determining the “best qualified
contractor”, developer shall consider, without limitation, a bidder’s
demonstrated competence, qualifications, ability to achieve timely
completion, capacity, skill, compliance with bid documents, costs, and other
relevant criteria. If a developer awards a prime contract or subcontract to a
bidder other than the lowest responsive and responsible bidder for an item or
unit of work, than all payments, reimbursements, and credits against
developer impact fees or other developer fees or obligations (“Development
Credits”) shall not exceed the amount of the lowest responsive bid for that
item or unit of work. This not-to-exceed limitation may be waived where:
i. The amount of the bid does not exceed the engineer’s estimate or
other approved estimate for the Developer-Performed Public Work by
more than ten percent (10%); and
ii. City approves the waiver in accordance with section 2.56.160.H.6.
e. Design-Build Contracts. Where a design-build contract is utilized to complete
a Developer-Performed Public Work, a developer is not required to comply
with sections 2.56.160.H.2.b or 2.56.160.H.2.c above, provided that
developer complies with:
i. all remaining requirements of 2.56.160.H;
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ii. the City’s design-build procurement requirements set forth in Chula
Vista Municipal Code section 2.57.030;
iii. the City’s qualification and selection process set forth in Chula Vista
Municipal Code section 2.57.040; and
iv. all other applicable City policies, procedures, and standards for design-
build projects.
3. Construction and Acceptance.
a. Payments. City shall have the authority to audit and determine the acceptable
amounts of all payments by City, bond drawdowns, and/or Development
Credits for a Developer-Performed Public Work.
b. Change Orders. Any change to the contract documents or improvements for a
Developer-Performed Public Work (“Change Order”) shall be subject to
City’s prior written approval, except for Change Orders that: (i) result in no
additional payment by City, bond drawdown, or Development Credits to
Developer; (ii) result in no additional maintenance or overhead costs to the
City; (iii) result in no material delay to the completion date; and (iv) result in
no material modifications to the design or construction. City shall have the
sole discretion to determine whether (i), (ii), (iii), and (iv) above have been
satisfied. All Change Order requests shall be submitted in writing in advance
of performing any work or incurring any increased costs for a Change Order,
and substantiated with supporting documentation justifying the request.
Cumulative Change Orders resulting in a total project amount of less than
$2,000,000 shall be considered by and subject to approval of the City
Manager, or designee. Cumulative Change Orders resulting in a total project
amount of $2,000,000 or more shall be considered by and subject to approval
of the City Council. Failure to comply with the procedures in this section
may, in City’s discretion, result in a waiver of all claims for additional
payments by City, bond drawdowns, or Development Credits to Developer in
connection with a Change Order.
c. Post-Construction. City shall have the discretion to accept a Developer-
Performed Public Work based on City’s determination of compliance with
local codes, City’s general design and construction standards, and project-
specific design and construction standards. City shall have the discretion to
release all bonds for a Developer-Performed Public Work.
4. Other Obligations. Nothing in this section shall limit or relieve a developer of
other obligations or restrictions applicable to the performance of a Developer-
Performed Public Work, including, without limitation obligations or restrictions
required by a funding source for the Developer-Performed Public Work.
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5. Agreement. Where otherwise required or advisable, in City’s sole discretion, City
may require a developer to enter into an agreement prior to commencement of a
Developer-Performed Public Work to implement the Developer-Performed Public
Work in accordance with the terms of this section and/or in accordance with other
obligations or restrictions applicable to the Developer-Performed Public Work.
Such agreement may: (i) clarify or modify the application of and/or waiver of the
requirements of this section to a Developer-Performed Public Work, and/or (ii)
clarify, establish, or modify the procedures to be undertaken by developer and
City in connection with this section (including but not limited to the procedures
and approvals described in section 2.56.160.H.3). City Council’s approval of an
agreement that clarifies and establishes such procedures constitutes the City
Council’s determination and finding that such procedures satisfy all applicable
requirements of this section 2.56.160.H.
6. Waiver. The requirements of this section may be waived, in whole or in part,
solely as follows:
a. For Developer-Performed Public Works with an original project award
amount of more than $2,000,000, by resolution of the City Council making
findings that (i) the waiver is in the best interest of the public after
consideration of factors including, without limitation, project costs, time for
completion, and other relevant criteria, and (ii) appropriate safe guards are in
place to protect the public interest.
b. For Developer-Performed Public Works with an original project award
amount of $2,000,000 or less, by written determination of the City Manager,
or designee, that (i) the waiver is in the best interest of the public after
consideration of factors including, without limitation, project costs, time for
completion, and other relevant criteria, and (ii) appropriate safe guards are in
place to protect the public interest.
c. For post-award waiver requests, if the estimated total project amount,
including all Change Orders, is more than $2,000,000, post-award waiver
requests shall be considered by and subject to approval of the City Council
and require the findings stated in 2.56.160.H.6.a . If the estimated total
project amount, including all Change Orders, is $2,000,000 or less, post-
award waiver requests shall be considered by and subject to the approval of
the City Manager, or designee, and require the findings stated in
2.56.160.H.6.b. Nothing in this section shall subject previously approved
waivers to further consideration and/or approval.
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d. For a “Special Purpose Project”, by resolution of the City Council making
findings that: (i) the waiver is in the best interest of the public after
consideration of factors including, without limitation, the total project costs,
City’s share of project costs, time for project completion, public benefits of
the project, and other relevant criteria and circumstances, and (ii) appropriate
safe guards are in place to protect the public interest. For purposes of this
section, “Special Purpose Project” means a Developer-Performed Public
Work that is intended to be owned, leased, and/or operated by a party or
parties other than the City for a period of no less than ten (10) years after
completion of the Developer-Performed Public Work.
E. Chapter 2, Section 2.56.170 of the Chula Vista Municipal Code is amended to
read as follows:
2.56.170 Automatic Indexed Adjustments.
The limits set forth in Sections 2.56.140, 2.56.145, and 2.56.160 shall automatically increase
annually based on the Engineering News Record (ENR) Construction Index. These limits will
increase by administrative action of the City Manager, starting on October 1, 2018, and again on
each October 1st thereafter, based on the one-year change (from July to July) in the Los Angeles
Construction Cost Index as published monthly in the Engineering News Record (“LA ENR
CCI”) by rounding up to the nearest $1,000.
Section II. Severability
If any portion of this Ordinance, or its application to any person or circumstance, is for
any reason held to be invalid, unenforceable or unconstitutional, by a court of competent
jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or
unconstitutionality shall not affect the validity or enforceability of the remaining portions of the
Ordinance, or its application to any other person or circumstance. The City Council of the City of
Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase
of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses
or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional.
Section III. Construction
The City Council of the City of Chula Vista intends this Ordinance to supplement, not to
duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in
light of that intent.
Section IV. Effective Date
This Ordinance shall take effect and be in force on the thirtieth day after its final passage.
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Section V. Publication
The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause
the same to be published or posted according to law.
[SIGNATURE PAGE TO FOLLOW]
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Presented by Approved as to form by
Richard A. Hopkins Glen R. Googins
Director of Public Works City Attorney
PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista,
California, this 13th day of March 2018, by the following vote:
AYES: Councilmembers: Aguilar, Diaz, McCann, Padilla, and Salas
NAYS: Councilmembers: None
ABSENT: Councilmembers: None
Mary Salas, Mayor
ATTEST:
Kerry K. Bigelow, MMC, City Clerk
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )
CITY OF CHULA VISTA )
I, Kerry K. Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing
Ordinance No. 3420 had its first reading at a regular meeting held on the 6th day of March 2018
and its second reading and adoption at a regular meeting of said City Council held on the 13th
day of March 2018; and was duly published in summary form in accordance with the
requirements of state law and the City Charter.
Dated Kerry K. Bigelow, MMC, City Clerk
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3/28/2018