El Centro Municipal Code Div. 9 Design-Build Contracting for Public Works Projects

The purpose of this division is to provide definitions and guidelines for the use, award and evaluation of design-build contracts for public works projects.

(Ord. No. 11-15, § 1, 11-1-11)

For the purposes of this division, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directive.

Competitive negotiation means a competitive sealed proposal procurement method which includes, but is not limited to, all of the following requirements:

(1) Generally describes the services sought to be procured by the city;

(2) Sets forth minimum criteria for evaluating proposals submitted in response to a request for proposals;

(3) Generally describes the format and content of proposals to be submitted;

(4) Provides for negotiation of scope and price; and

(5) May place emphasis on described factors other than price to be used in evaluating proposals.

Department means the public works department of the city.

Design-build means a process involving contracting with a single entity for the design and construction of a public works project pursuant to a competitive negotiation process.

Design-build contract means a contract between the city and a design-build entity to furnish the architecture, engineering and related services as required for a given public works project, and to furnish the labor, materials and other construction services for the same project.

Design-build entity means the entity (whether, natural person, partnership, joint venture, corporation, business association or other legal entity) that proposes to enter into a design-build contract. This entity shall be able to provide appropriately licensed contracting, architectural and engineering services as required by the request for proposals.

Design-build entity member means any person who provides licensed contracting, architectural or engineering services.

Performance criteria means the requirements for the public works project, as determined by the department, expressed in conceptual documents, performance-oriented preliminary drawings, outline specifications and other documents provided with a request for proposals.

Proposal means an offer to enter into a design-build contract by a design-build entity in response to a request for proposals.

Public works project shall mean any city project requiring design and construction services.

Request for proposals means a document or publication whereby the department solicits proposals for a design-build contract.

Successful proposer means a design-build entity awarded a design-build contract by the city council.

(Ord. No. 11-15, § 1, 11-1-11)

Notwithstanding any provision to the contrary in the California Public Contracts Code or in any other ordinance or procedure of the city, the use of design-build procurement is authorized for any public works project, including, but not limited to, any project involving a building, structure or public utility, no matter the amount. Any code, ordinance or procedure in conflict with the foregoing authorization is hereby specifically superseded.

(Ord. No. 11-15, § 1, 11-1-11)

The department may utilize design-build procedures for any public works project as authorized in section 2-204. At a minimum, the design-build procedures of the department shall utilize a competitive negotiation process in compliance with this division. Any design-build contract shall be approved by resolution of the city council.

(Ord. No. 11-15, § 1, 11-1-11)

Prior to procuring a design-build contract, the public works department shall prepare a request for proposals containing, at minimum, the following elements:

(a) The procedures to be followed for submitting proposals, the criteria for evaluation of the proposals and their relative weight, the procedure for selection of the successful proposer and the timing for making awards.

(b) The proposed terms and conditions for the design-build contract.

(c) The performance criteria.

(d) A description of the project approach, work plan or other submittals to be submitted with the proposal, with guidance as to the form and level of completeness required.

(e) A schedule for planned commencement and completion of the design-build public works project.

(f) The minimum qualifications that the design-build entity will be required to possess to be deemed responsive.

(g) Requirements for performance bonds, payment bonds and insurance (including professional liability insurance) as determined by the risk manager and city attorney, as appropriate.

(h) Essential design disciplines, construction trades or types of subcontractors that must be listed by the design-build entity in the proposal. Subcontractors not listed in the proposal shall be awarded subcontracts by the design-build entity in accordance with a process set forth in the request for proposals. All subcontractors that are listed in the proposal or subsequently awarded subcontracts shall be afforded the protection of all applicable laws.

(i) Any other information that the department in its discretion chooses to supply, including without limitation, surveys, soils reports, drawings or models of existing structures, environmental studies, photographs or references to public records, including dissemination procedures for critical infrastructure information.

(Ord. No. 11-15, § 1, 11-1-11)

The following method shall be utilized in selecting a design-build entity for award of a design-build contract:

(a) A design-build entity shall submit a proposal in accordance with the requirements of the request for proposals. A proposal may be withdrawn by written notice to the department for any reason at any time prior to the deadline set forth in a request for proposals and the proposal guarantee for the proposal shall be returned. Timely withdrawal of a proposal shall not prejudice the right of a design-build entity to timely file a new proposal. Nothing in this division shall require the city to accept any proposal and the city hereby reserves the right to reject any proposal. City assumes no responsibility for the costs incurred by any design-build entity or design-build entity member in preparation of any proposal.

(b) Once received, the department may require clarifications from a design-build entity to ensure a proposal is responsive to a request for proposals. clarifications may result in revised cost and/or technical proposals.

(c) The city may require that design-build entities be prequalified in accordance with a procedure established by the department. The information, which is solicited by the questionnaire, may include any criteria deemed relevant by the department to evaluate a design-build entity for any particular design-build contract. At minimum, the department shall establish reasonable and objective criteria.

(d) Prequalification may be limited to consideration of all or any of the following criteria supplied by a design-build entity:

(1) Possession of all required licenses, registrations, and credentials in good standing that are required to design and construct the project.

(2) Submission of documents establishing that a design-build entity member has completed, or demonstrated the capacity to complete projects of similar size, scope, building type or complexity, and that proposed key personnel have sufficient experience and training to competently manage and complete the design and construction of the project.

(3) Submission of evidence establishing that the design-build entity has the capacity to obtain all required payment and performance bonding, liability insurance and errors and omissions insurance, as well as a financial statement assuring that the design-build entity has the capacity to complete the project.

(4) Submission of a declaration wherein the applying design-build entity member declares that they have not had a surety company finish work on any project within the past five (5) years.

(5) A declaration providing all relevant information for the past five (5) years concerning all of the following:

a. Any civil, criminal or administrative liability imposed, or action filed, against the design-build entity or any design-build entity member for:

1. Violation of the Occupational Safety and Health Act;

2. Violation of the contractors' state license law;

3. Submitting false or fraudulent claims to a governmental agency;

4. Violation of federal or state law governing the payment of wages, benefits or personal income tax withholding or of Federal Insurance Contributions Act (FICA) withholding requirements. For purposes of this subdivision, only violations by a design-build entity/design-build entity member as an employer shall be deemed applicable, unless it is shown that the design-build entity/design-build entity Member in its capacity as an employer has knowledge of a subcontractor's violation or failed to comply with the conditions set forth in California Labor Code section 1775(b) as amended; or

5. Violation of any federal or state law governing equal opportunity employment, contracting or subcontracting.

(6) An evaluation of overall quality, capability, resource availability and financial stability of the design-build entity.

(7) An evaluation of references provided with respect to responsiveness, quality of work, timeliness and overall performance.

(8) Consideration of items such as price, proposed design approach, initial and/or life cycle costs, project features, quality, capacity, schedule and operational and functional performance of the facility.

(9) The extent to which a design-build entity's proposal meets the performance criteria and other requirements set forth in a request for proposals.

(10) Analysis of the cost relative to a design-build entity's ability to meet the performance criteria and other requirements set forth in the request for proposals.

(e) Depending on the number of proposals received, the department may develop a "short list" of top ranked design-build entities. The department may require "short-listed" design-build entities to submit to an interview and/or make a presentation to establish a final ranking.

(f) The department will then begin negotiations with the top-ranked design-build entity. The negotiations may include but not be limited to project costs, scope and schedule. If negotiations are unsuccessful, negotiations will cease with the top-ranked design-build entity and may begin with the next highest-ranked design-build entity.

(g) Award and approval of the design-build contract shall be made by city council resolution to the design-build entity whose proposal is determined to be the most advantageous to the city, taking into consideration price and the evaluation factors set forth in the request for proposals.

(Ord. No. 11-15, § 1, 11-1-11)

The city recognizes that the design-build entity is charged with performing both design and construction. Because a design build contract may be awarded prior to the completion of the design, it is often impracticable for the design-build entity to list all subcontractors at the time of award.

(a) It is the intent of the city to establish a clear process for the selection and award of subcontractors entered into pursuant to this division in a manner that retains protection for subcontractors while enabling the design-build project to be administered in an efficient fashion.

(b) All of the following requirements shall apply to subcontractors, licensed by the state, that are employed on design-build projects undertaken pursuant to this division.

(1) The request for proposal shall specify the essential design disciplines, construction trades or types of subcontractors that must be listed by the design-build entity in the proposal.

(2) Subcontractors not listed in the proposal shall be awarded subcontracts by the design-build entity in accordance with a bidding process set forth in the request for proposals. The design-build entity shall furnish to the city documentation verifying that all subcontractors not listed at the time of award were subsequently awarded subcontracts in accordance with the process set forth in the request for proposals. All subcontractors that are listed in the proposal or subsequently awarded subcontracts shall be afforded the protection of all applicable laws.

(Ord. No. 11-15, § 1, 11-1-11)

Change orders to a design-build contract shall be subject to the limits and requirements set forth in the resolution of the city council awarding and approving the design-build contract.

(Ord. No. 11-15, § 1, 11-1-11)

The design-build contract shall include a provision that requires the design-build entity to defend, indemnify and hold harmless the city and its officers, employees, volunteers and agents from liability arising from the acts of the design-build entity members in connection with the performance of the design-build contract.

(Ord. No. 11-15, § 1, 11-1-11)

The information concerning the design-build entity's qualifications and experience shall be verified under oath by the design-build entity and the design-build entity members. It is unlawful to submit any declaration containing any material matter that is false.

(Ord. No. 11-15, § 1, 11-1-11)

The provisions of this division are severable. If a court determines that a word, phrase, clause, sentence, paragraph, subsection, section or other provisions is invalid or that the application of any part of the provision to any persons or circumstances is invalid, the remaining provisions and the application of those provisions to other persons or circumstances are not affected by that decision.

(Ord. No. 11-15, § 1, 11-1-11)