Fremont Municipal Code Art. I General Provisions and Definitions

This chapter may be referred to as the “purchasing code,” and is adopted pursuant to the authority identified in each ordinance codified herein, including Cal. Gov’t Code §§ 4525 et seq., 37103, 37350 et seq., 53060, and 54201 et seq., as well as the police power set forth in Article XI, Section 7 of the California Constitution. This purchasing code implements, and is consistent with, the requirements of state law, including requirements for public works construction (primarily identified in the California Public Contract Code), for private development construction (primarily identified in the Subdivision Map Act, and the subdivision ordinance), and for real property acquisition and disposition. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9100.)

As used in this chapter:

“Bid deadline” means the date and time of bid submittal and bid opening.

“Bidders list” means a list, or series of lists, incorporated into the purchasing regulations which identifies qualified contractors potentially available to perform specified categories of work. This specifically includes the list of qualified contractors required by Cal. Pub. Cont. Code § 22034.

“Contract” means a set of promises between two or more parties which is legally enforceable. The term “contract” shall include all of the various types of contracts identified in this chapter, such as contracts for: acquisition or disposition of personal property or real property, services, public project construction, private development construction, settlement of claims, and contract amendments.

“Contractor” means a private party with which the city contracts for the acquisition of property or services, for the construction of public projects, or for the disposition of property. For the purpose of this chapter, the term “contractor” may be used in its general sense to refer to a party which might otherwise be referred to with a more specific term. For example, the term “contractor” shall be used to refer to: “vendor” or “supplier” for the city’s acquisition of personal property, or “grantor” or “lessor” for the city’s acquisition of real property, or “grantee” or “tenant” for the city’s disposition of real property, or “consultant” for services, or “developer” for private development construction.

“Emergency” means a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services.

“Fair market value” means the value of property, as determined by the city manager, in accordance with the property valuation principles of eminent domain law set forth in Cal. Civ. Proc. Code § 1263.320. The city manager is authorized to establish methods of evaluating property in accordance with these principles, and documenting these methods in the purchasing regulations.

“Grant” means any offer to or from the city of property (in the form of a grant, donation, or gift), in return for which no monetary compensation is required. For the purpose of this chapter, acceptance of the grant, including any relevant terms and conditions, forms a contract.

“Lease” means any contract for the use of property for a limited period of time.

“Local-owned business” means a business which has applied for and paid a business tax and registration tax (pursuant to Fremont Municipal Code Title 5), and which is identified within the city of Fremont by the State of California Board of Equalization for the purpose of the California sales tax area code number.

“Personal property” means all property not defined as real property, including all things (including specially manufactured goods) which are movable at the time of contracting for sale, such as all supplies, materials, equipment, and goods; as defined by Cal. Civ. Code § 663.

“Price contract” means a contract where it is agreed to purchase personal property or services for an anticipated need at a predetermined price or price discount from a price list.

“Private development construction” means a project by which work is performed at the cost of a contractor (private developer) as a condition of the private developer’s right to develop private property, which work may include public works construction, grading, or private improvements.

“Property” means all personal property and all real property, as defined by Cal. Civ. Code § 654.

“Public agency” means any public agency as defined by Cal. Gov’t Code § 6500, including federal, state, county, and local government agencies (such as schools and special districts).

“Public bulletin board” means the locations designated by the city manager as the places where the city posts the public notices required by this chapter.

“Public project” means all public projects as defined by Cal. Pub. Cont. Code § 22002, including all works of construction, reconstruction, erection, alteration, renovation, improvement, demolition, and repair work involving any publicly owned, leased, or operated facility (including plants, buildings, structures, ground facilities, utility systems, real property, streets and highways, or other public work improvements).

“Public work” means all public works as defined by Cal. Lab. Code § 1720, including all construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds.

“Purchasing code” means this chapter.

“Purchasing regulations” means written regulations approved by the city manager in accordance with Section 3.20.050.

“Real property” means land and that which is affixed to, incidental to, or appurtenant to land, as defined by Cal. Civ. Code § 658.

“Services” means the performance of work by an independent contractor of the city; provided, however, “services” specifically exclude employee services and exclude the performance of work for “public projects.” “Services” specifically include all professional services, such as those identified in Cal. Gov’t Code § 4525 (attorneys, physicians, consultants, teachers, trainers, architects, engineers, landscape architects, construction managers, environmental, land surveyors, appraisers, accountants, financial advisers); as well as other professional services such as insurance brokers and bankers; nonprofessional services such as cleaning and maintenance; and any “public works” not within the definition of “public projects.”

“Subdivision Map Act” means Cal. Gov’t Code §§ 66410 et seq.

“Subdivision ordinance” means Fremont Municipal Code Title 17.

“UPCCAA” means the Uniform Public Construction Cost Accounting Act, as set forth in Cal. Pub. Cont. Code §§ 22000 et seq., in particular, the requirements of Cal. Pub. Cont. Code § 22034. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 1, 7-12-11. 1990 Code § 2-9101.)

(a) The purpose of this chapter is to establish a system for the acquisition of property and services, for the construction of public projects, and for the disposition of property which, based on the circumstances of a particular project, meets the following goals:

(1) Obtains the most cost-effective result for the city, which avoids improvidence, extravagance, and any other waste of public funds or public property, and which also achieves an appropriate balance between the costs and benefits of maximizing quality within available resources.

(2) Takes into consideration all reasonably available relevant information regarding the range of types, effectiveness, quality, and costs of potential property, services, public projects, and contractors available to achieve the city’s project goals. Depending upon the particular requirements of the project (and the more particular procedures identified in this chapter), the information to be considered shall include data gathered from one or more of the following sources: similar city projects, other public agencies, professional journals, private businesses, outreach to potential contractors, and private businesses, competitive bids, formal or informal quotes, proposals, or qualification statements.

(3) Guards against favoritism, fraud, corruption, and conflicts of interest.

(4) Efficiently uses city resources in the preparation, approval, administration, and enforcement of contracts which are effective tools in achieving the city’s goals.

(b) All city contracts shall be prepared in a manner consistent with all state and federal laws, in particular the requirements for public works construction, public project construction, and private development construction, real property acquisition and disposition, and the requirements related to funding received from other public agencies.

(c) All city contracts, and the purchasing regulations, shall implement the purpose and goals identified in this section.

(d) Any contract made, or purported to be made, by the city in violation of this chapter shall be void and of no force or effect. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9102.)

(a) The dollar limits identified in this chapter as thresholds for determining the authority of the city manager to execute a contract on behalf of the city are per contract.

(b) The dollar limits identified in this chapter as thresholds for determining the method of contract solicitation are per contract.

(c) For each contract, the dollar limits identified in this chapter (for both the authority of the city manager and the method of contract solicitation) shall be the greater of: (1) the total dollar amount of the city’s commitment to pay a contractor; or (2) the total dollar amount of a contractor’s commitment to pay the city; or (3) the estimated fair market value of property acquired or disposed. For the purpose of determining dollar limits pursuant to this chapter, a “commitment” to pay includes the amount designated in a contract as a “not to exceed” amount, or an estimated payment amount, even though the city’s actual contractual obligation is based on actual hours performed at an hourly rate.

(d) It shall be unlawful to split, or separate into smaller contracts, any contract for the purpose of evading the dollar amounts identified in this chapter. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 2, 7-12-11. 1990 Code § 2-9103.)