2.56.160 Contracts on public works.
The provisions of this section shall apply to contracts on public works, as defined in City Charter Section 1009.
A. Competitive Bid Processes. The informal bidding process set forth in CVMC 2.56.090(A) shall apply to public works contracts with a maximum contract amount of $250,000 or less. For public works with a maximum contract amount in excess of $250,000, the competitive bidding process set forth in CVMC 2.56.070(A) and 2.56.080 shall apply.
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”).
C. Capital Improvement Projects (CIP). Notwithstanding anything else in this section, public works contracts for capital improvement projects shall be subject to the following:
1. Awarding Authority. The public works awarding authority shall be: the Purchasing Agent, for public works contracts with a maximum contract amount up to $2,000,000; the City Council for public works contracts with a maximum contract amount in excess of $2,000,000.
2. Change Orders. The Public Works Director, or City Engineer, shall have authority to approve change orders up to the remaining CIP budget available for any CIP project.
D. Rejection of Bids. The public works awarding authority may reject any and all bids, authorize the readvertising for bids, or waive minor defects in any bid, if the public works awarding authority determines that such action is necessary or appropriate for the benefit of the public.
E. Emergency Waiver. For contracts on public works, emergency purchases shall be authorized pursuant to CVMC 2.56.100.
F. Professional Services. The selection process for professional services for public works projects shall be awarded pursuant to CVMC 2.56.110.
G. “Special” Public Works Contracts. The City Council retains the authority to require its approval of the award of any public works contract it defines as “special,” based on factors such as contract cost, value, or other relevant factors, either by amendment to this chapter or adoption of a City Council policy.
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 (A) performance capabilities of the proposed entity or contractor, (B) project characteristics, (C) manufacturing processes, (D) compatibility requirements, and/or (E) market or other conditions/circumstances that render the award of a sole source contract to be in the best interest of the public; and
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 subsection (H)(1)(b) of this section) 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.
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 subsection (H)(1)(b) of this section) 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 subsection (H)(1)(b) of this section), 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, then 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 10 percent; and
ii. City approves the waiver in accordance with subsection (H)(6) of this section.
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 subsection (H)(2)(b) or (H)(2)(c) of this section; provided, that developer complies with:
i. All remaining requirements of this subsection H;
ii. The City’s design-build procurement requirements set forth in CVMC 2.57.030;
iii. The City’s qualification and selection process set forth in CVMC 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 subsections (H)(3)(b)(i), (ii), (iii), and (iv) of this section 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.
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: (a) clarify or modify the application of and/or waiver of the requirements of this section to a developer-performed public work, and/or (b) 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 subsection (H)(3) of this section). 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 subsection 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 safeguards 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 safeguards 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 subsection (H)(6)(a) of this section. 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 subsection (H)(6)(b) of this section. Nothing in this section shall subject previously approved waivers to further consideration and/or approval.
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 safeguards 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 10 years after completion of the developer-performed public work. (Ord. 3420 §§ (1)(C), (D), 2018; Ord. 3400 § 1, 2017).