Fresno Municipal Code Art. 1 Purchases of Personal Property and Contracts for Services and Work

(a) The Purchasing Manager, under the supervision and direction of the City Manager shall be the officer in charge of the purchasing function and shall have general charge of purchases of materials, supplies, equipment, services, and/or public works construction for the use of all departments and branches of the city government, except where otherwise provided by state law or this Code.

(b) The Purchasing Manager shall be authorized to develop, customize, and utilize forms and procedures for competitive bidding, Requests for Proposals, and other procurement methods.

(c) Upon receipt of a requisition filed pursuant to Section 4-105 and provided competitive bidding is not required, and the officer filing such requisition is authorized to purchase such materials, supplies, equipment, services, and/or public works construction, and an appropriation has been made therefor which has not been exhausted, it shall be the duty of the Purchasing Manager to purchase the materials, supplies, equipment, services, and/or public works construction of the same or comparable kind and quality as described in such requisition.

(d) Except for professional consulting services as provided in Section 4-109, it shall be the duty of the Purchasing Manager, in purchasing for the use of the city, to use his or her best efforts to secure the lowest price for materials, supplies, equipment, services and/or public works construction, by calling for bids from providers, either verbally, by telephone or in writing, or may give notice to providers generally by one publication in a newspaper published in the city.

(Rep. and Added Ord. 5649, 1959; Am. Ord. 71-56, 1971; Am. Ord. 96-71, § 1, eff. 12-13-96; Am. Ord. 2002-25, § 1, eff. 6-16-02; Am. Ord. 2007-96, § 3, eff. 1-19-08).

(a) Every contract involving an expenditure of City moneys of more than the amount set forth in Section 1208(a) of the Charter for materials, supplies, equipment or for any public work of improvement shall meet the competitive bidding requirements set forth in said Charter Section.

(b) The term "competitive bidding" as used in this Chapter is the term used in the title of Section 1208 of the Charter. Whenever the term "advertised bidding" is used in this Chapter it shall mean the same as competitive bidding.

(c) Every person to whom a contract is awarded involving an expenditure in an amount subject to competitive bidding for the improvement, erection, or construction of any building, road, bridge, or other structure, excavating, or any mechanical work for the city, shall, before entering upon the performance of the work, file with the City Clerk a good and sufficient corporate surety bond for labor and materials in accordance with the provisions of the general law set forth in Civil Code Sections 3247 to 3252, as amended. Every such person shall also file a good and sufficient corporate surety bond in a similar amount conditioned upon faithful performance of the contract, prior to entering upon performance of the work. Nothing herein contained shall be deemed to preclude the requiring of such bonds on any contract involving a lesser expenditure or other work.

(Am. Ord. 2007-96, § 3, eff. 1-19-08; Am. Ord. 2007-96, § 3, eff. 1-19-08).

(a) Council Findings. The Council finds and declares that it is the intent of the Council in enacting this section to achieve the following objectives when awarding contracts for which competitive bidding is required by the Charter:

(1) To guard against actual (rather than the appearance of) favoritism, improvidence, extravagance, fraud and corruption.

(2) To prevent the waste of public funds.

(3) To obtain the best economic result for the public, securing the best public work of improvement, equipment, materials and supplies at the lowest price practicable.

(4) To stimulate advantageous market place competition.

(5) To administer competitive bidding so as to accomplish these objectives fairly and reasonably with sole reference to the public interest, because competitive bidding is for the benefit of property holders and taxpayers of the city, and not for the benefit or enrichment of the bidders.

(6) To administer competitive bidding so the process does not impede the usual and regular progress of the public business, or deprive the public, even temporarily, of those things necessary and indispensable to protect the public interest.

(b) Need for Budgetary Flexibility. The Council finds and declares that because the dollar amount of the lowest bid is not known until the bids are received and opened on the bid opening day, and because the amount of money available is limited, the city needs the budgetary flexibility afforded by:

(1) Allowing it to list items on which bidders must provide bid prices, but which may or may not be added to or deleted from the contract, depending upon the availability of funds; and

(2) Allowing it to utilize alternative bid forms in the same bid specifications on which bidders provide bid prices, but any such form may or may not be selected upon which to award the contract, depending upon the availability of funds.

(c) Alternates. The City Manager may include in the bid specifications a requirement that a bid for a city contract include prices for items that may be added to, or deducted from, the scope of work or description of the equipment, materials or supplies to be supplied in the contract for which the bid is being submitted. Whenever additive or deductive items are included in a bid, the respective bid specifications shall specify which one of the methods expressly set forth herein will be used to determine the lowest bid. In the absence of such a specification, only the method provided by Subdivision (1) will be used.

(1) Base Bid Method. The lowest bid shall be the lowest bid price on the base contract without consideration of the prices on the additive or deductive items.

(2) Specified Combination Method. The lowest bid shall be the lowest total of the bid price on the base contract and the price on any additive and deductive item that was specifically identified in the respective bid specifications as being used for the purpose of determining the lowest bid.

(3) Specified Priority Based on Available Funds Method. Any additive or deductive items shall be listed in the respective bid specifications in priority order. The lowest bid shall be the lowest total of the bid price on the base contract and the price on any additive and deductive item selected in the order of its specified priority as within the amount of available funds identified in the bid invitation.

(4) Council Findings Method. After consideration of the amount of the bids received and the combination of work to be performed, the lowest bid shall be the lowest total of any combination of bid price on the base contract and the price on any additive or deductive item identified in the respective bid specifications and selected by the Council when the Council finds an award to the responsive and responsible bidder of the lowest bid either to be in the best interests of the city or obtains for the public the best economic result, and the purchase is authorized by resolution of the Council containing a declaration of the facts constituting the finding.

(d) Alternative Bid Forms. The City Manager may include in the bid specifications a requirement that a bid for a city contract include prices for items on one or more alternative bid forms. Whenever alternative bid forms are included in a bid, the respective bid specifications shall specify which one of the methods expressly set forth herein will be used to determine the lowest bid. In the absence of such a specification, only the method provided by Subdivision (1) will be used.

(1) Lowest Bid on Alternative Bid Forms Method. After applying to each alternative bid form the applicable method in subsection (c) for any additive or deductive items, the lowest bid shall be the lowest bid price of the alternative bid forms.

(2) Specified Priority Based on Available Funds Method. The alternative bid forms shall be listed in the respective bid specifications in priority order. After applying to each alternative bid form the applicable method in subsection (c) for any additive or deductive items, the lowest bid shall be the bid price of the alternative bid form selected in the order of its specified priority as within the amount of available funds identified in the bid invitation.

(3) Council Findings Method. After applying to each alternative bid form the applicable method in subsection (c) for any additive or deductive items, the lowest bid shall be the bid price of the alternative bid form selected by the Council after consideration of the amount of the bids received and the combination of work to be performed when the Council finds an award to the responsive and responsible bidder either to be in the best interests of the city or obtains for the public the best economic result, and the purchase is authorized by resolution of the Council containing a declaration of the facts constituting the finding.

(e) Award of Contract. Subject to the Council's right to reject any and all bids, a responsive and responsible bidder who submitted the lowest bid as determined by subsections (c) and (d) shall be awarded the contract. Except for a contract awarded pursuant to subdivision (c)(4), this section does not preclude the city from adding to, or deducting from, the contract any of the additive or deductive items after the lowest responsive and responsible bidder has been determined.

(Added Ord. 2003-11, § 6, eff. 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08).

(a) Findings.

(1) The Council finds that contracting with the City of Fresno is an important municipal affair, and that the award of contracts to contractors who fail to deal with the city in good faith compromise the integrity of the contracting process and results in the improper expenditure of public funds. The Council recognizes the city must afford contractors due process in any determination that precludes any individual or business entity from participating in the contracting process. This Section does not apply to a determination of nonresponsibility or a single contract or identifiable group of contracts, but for the broader determination of irresponsibility of a contractor for the general purpose of contracting with the city for a specified period. The Council therefore adopts this ordinance to prescribe standard procedures for the prosecution, determination, and implementation of administrative debarments.

(b) Purpose and Intent.

(1) In order to promote integrity in the city's contracting processes and to protect the public interest, the city shall only do business with responsible bidders and contractors.

(2) This Section sets forth the grounds for debarment and suspension.

(c) Definitions.

(1) "Adequate Evidence" means information sufficient to support the reasonable belief that a particular act or omission has occurred.

(2) "Affiliate" means

(i) the assignee, successor, subsidiary of, or parent company, of another person; or

(ii) a Controlling Stockholder of a person; or

(iii) a person who has the same or similar management of the debarred corporate or other legal entity; or

(iv) a person who directly or indirectly controls, or has the power to control, another person, or is directly or indirectly controlled by another person. Indicia of control include interlocking Management or ownership, identity of interests among Relatives, shared facilities and equipment, and common use of employees; or

(v) a business entity organized following the debarment, suspension, or proposed debarment of a person which has the same or similar Management, ownership or principal employees as the bidder or contractor that was debarred, suspended or proposed for debarment, or the debarred person or the business entity created after the debarment, suspension, or proposed debarment operates in a manner designed to evade the application of this Section or to defeat the purpose of this Section.

(3) "Bidder" means a person who submits a bid, proposal, or other document to the city seeking award of a contract. The term Bidder does not include a subcontractor.

(4) "Contract" means any written agreement between the city and a person for public works, goods, services, franchise, or consultant services.

(5) "Contractor" means a person who has contracted with the city to provide public works, goods, services, franchise, or consultant services for or on behalf of the city. The term Contractor includes a subcontractor, vendor, franchisee, consultant, or any of their respective officers, directors, shareholders, partners, managers, employees, or other individuals associated with the Contractor, subcontractor, consultant, or vendor.

(6) "Controlling Stockholder" means a stockholder who:

(i) owns more than 25% of the voting stock of a corporation; or

(ii) notwithstanding the number of shares that the stockholder owns, has the power to direct or control the direction of the Management or policies of a corporation.

(7) "Debar", "Debarred", or "Debarment" means an action taken by the city which results in a Bidder or Contractor being prohibited from any of the following: bidding or proposing on a Contract, being awarded a Contract, or performing work on a Contract for a defined period of time. A Bidder or Contractor subject to such prohibition is debarred.

(8) "Debarment Hearing Board" means a board established by the City Manager to hold hearings, to take evidence, and to make Debarment determinations for the city.

(9) "Department" means a city Department acting through the Department director or designee.

(10) "Final Performance Evaluation" means a city-issued final evaluation of a Contractor's overall performance which is generally issued subsequent to completion of performance on the Contract.

(11) "Management" means the officers, partners, owners, foremen, or other individuals responsible for a corporate or other legal entity's financial and operational policies and practices,

(12) "Person" has the same meaning as that in Fresno Municipal Code Section 1-204(g). In addition, if a Person is a corporate or other legal entity, it includes individuals who constitute the Person's Management. It also includes any individual or other legal entity that:

(i) Directly or indirectly (e.g. through an Affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a Contract, or a subcontract under a Contract; or

(ii) conducts business, or reasonably may be expected to conduct business, with the city as an agent or representative of another Person.

(13) "Preponderance of the evidence" means proof by information that, compared with that opposing it, leads to the conclusion that the fact at issue is more probably true than not.

(14) "Prime Contractor" means a Person who enters a Contract directly with the city.

(15) "Relative" means:

(i) an individual related by consanguinity within the second degree as determined by the common law; or

(ii) a spouse; or

(iii) an individual related to a spouse within the second degree as determined by the common law; or

(iv) an individual in an adoptive relationship within the second degree as determined by the common law; or

(v) any individual considered to be "family" in commonly understood terms of the word.

(16) "Subcontractor" means:

(i) a Person who Contracts directly with a Prime Contractor but not directly with the city; or

(ii) any Person under Contract with a Prime Contractor or another subcontractor to provide any service, materials, labor or otherwise perform on a Contract.

(17) "Suspend" or "Suspension" means the Debarment of a Bidder or Contractor for a temporary period of time pending the completion of an investigation and any proceedings before a Debarment Hearing Board or independent hearing officer and any appeals therefrom.

(d) Scope of Section.

(1) This Section establishes procedures for determining whether a Bidder or Contractor is to be Debarred, Suspended, or both.

(2) This Section sets forth the grounds for Debarment and Suspension.

(3) This Section provides that a list of Debarred and Suspended Persons is to be created and maintained by the City Manager. It further spells out the consequences of a Person's Debarment and Suspension.

(4) The City Manager shall adopt procedures and regulations to implement this Section, including procedures for the conduct of Debarment hearings, Suspension meetings, and appeals of Final Performance Evaluations.

(e) Debarment Hearing Board.

(1) Upon a recommendation from a Department for Debarment other than Debarments set forth in subsections (i)(1)(i) and (i)(1)(ii), the City Manager shall appoint a Debarment Hearing Board to hear and determine whether a Bidder or Contractor should be Debarred.

(2) The City Manager appoints the voting board members from the Capital Project Oversight Board to serve on the Debarment Hearing Board. The Debarment Hearing Board shall consist of no fewer than three Capital Project Oversight Board members. The individuals on the Debarment Hearing Board must not have participated in the decision to recommend debarment or work in the Department recommending Debarment.

(f) Suspension While Debarment Proceedings are Pending.

(1) The City Manager may Suspend a Bidder or Contractor pending a Debarment decision if the City Manager determines that Adequate Evidence of one of the grounds for Debarment listed in subsection (h) exists.

(2) The City Manager shall, upon 72 hours' notice, provide a Suspended Bidder or Contractor with an opportunity to appeal the Suspension at an informal meeting.

(3) The City Manager shall notify the Bidder or Contractor of the Suspension in accordance with subsection (g).

(4) The Suspension is effective until the Debarment Hearing Board makes a final decision on the proposed Debarment, until there has been a final ruling by an independent hearing officer in accordance with subsection (j), or until a Bidder or Contractor is Debarred under subsection (l){5).

(g) Notices Required Under This Section.

(1) Notice shall be by any of the following methods:

(i) Personal delivery with service effective on the date of delivery; or

(ii) Certified mail, postage prepaid, return-receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice that is sent by certified mail is returned unsigned, then service shall be deemed effective five calendar days after mailing by regular mail, provided the notice that was sent by regular mail is not returned; or

(iii) Regular mail, if not returned, with service effective five calendar days after mailing; or

(iv) Publication. Service shall be deemed effective on the first date of publication.

(2) Proof of delivery of notice shall be made by the certificate of any officer or employee of the city or by declaration under penalty of perjury of any Person over the age of eighteen years. The proof of delivery shall show that delivery was done in conformity with this Section.

(3) The failure of any Person to receive any notice served in accordance with this Section shall not affect the validity of any Debarment proceedings.

(h) Grounds for Debarment.

(1) Grounds for Permanent Debarment.

(i) A judgment, settlement, stipulation, plea agreement, final conviction, including a plea of nolo contendere, or final unappealable civil judgment, of any of the grounds listed below, constitutes grounds for permanent Debarment of the Bidder or Contractor who is subject to, or the Affiliate of, the Bidder or Contractor who is subject to the judgment, settlement, stipulation, plea agreement, final conviction, or final unappealable civil judgment:

1. under any local, state, or federal law or regulation for embezzlement, theft, bid rigging, perjury, forgery, bribery, falsification or destruction of records, conspiracy, collusion, or receiving stolen property; or

2. any offense, action, or inaction indicating a lack of business integrity or business honesty; or

3. for commission of a criminal offense arising out of obtaining or attempting to obtain a public or private Contract or subcontract, or in the performance of such Contract or subcontract.

(ii) The Bidder or Contractor has engaged in any corrupt practice in bidding, award, administration, or performance of a Contract, including but not limited to a Fair Political Practices Commission enforcement order against a Bidder or Contractor, either following a hearing or by stipulation, imposing a penalty for a violation of California Government Code sections 84300(c) or 84301, or a City of Fresno enforcement order against a Bidder or Contractor, either following a hearing or by stipulation, imposing a penalty for a violation of Fresno Municipal Code sections 2-901 et seq.

(iii) The Bidder or Contractor operates in a manner designed to evade the application of this Section or to defeat the purpose of this Section,

(iv) The city has issued the Bidder or Contractor four or more final performance evaluations with a rating of unsatisfactory in any four year period.

(v) The Person has committed an act or omission so serious or compelling in nature that it affects the present responsibility of the Bidder or Contractor to be awarded a Contract or to participate as a subcontractor.

(2) Grounds for Debarment of Three Years or More.

(i) The Bidder or Contractor willfully breaches a material term of a Contract.

(ii) Violation of a local, state, or federal law or regulation applicable to a Contract other than those identified in subsection (h)(1).

(iii) Three or more occurrences of substandard performance by the Bidder or Contractor on any Contract, including, but not limited to, (1) a material breach of the Contract; (2) a failure to complete work required under the Contract on time and/or within budget when such failure is attributable to the Bidder's or Contractor's negligent or wrongful actions or inactions; (3) substandard quality of work; or (4) failure to complete work and the City calls upon the performance bond holder to complete the work; (5) the amount of time required to complete the work exceeds the greater of 10% of the project schedule or two calendar weeks beyond the required contract completion date, as contained in the Contract, and liquidated damages were assessed; (6) Contractor's inability to provide the necessary insurance coverage during the contract term; (7) Contractor's inability to acquire the necessary insurance coverage within thirty days of awarding the Contract; or (8) any negligent or wrongful failure to cooperate with the city such that timely, satisfactory completion of the work was jeopardized. The occurrences of substandard performance described herein may occur on the same Contract or on different Contracts.

(iv) The Bidder or Contractor used substandard materials, or has failed to furnish or install materials in accordance with Contract requirements, even if the discovery of the defect is subsequent to acceptance of the work and expiration of the warranty, if such defect is because of intentionally deficient or grossly negligent performance of the Contract.

(v) The Bidder or Contractor submits materially false information to the city pertaining to:

1. the city's evaluation of the Bidder or Contractor as a Disadvantaged Business Enterprise; or

2. the city's prequalification or eligibility process; or

(vi) The Bidder or Contractor has engaged in unlawful discrimination in employment.

(vii) The Bidder or Contractor has received three or more Final Performance Evaluations with a rating of unsatisfactory in any three year period.

(viii) The Bidder or Contractor fails to pay prevailing wages, when required by law.

(ix) The Bidder or Contractor violates a material provision of any settlement of a Debarment action.

(3) Grounds for Debarment of Two Years.

(i) A Bidder or Contractor may be Debarred for two years if a Bidder or Contractor has received two or more final performance evaluations with a rating of unsatisfactory in any two-year period.

(ii) Two or more occurrences of substandard performance by such Person on any city Contract, including, but not limited to, (1) a material breach of the Contract; (2) a failure to complete work required under the contract on time and/or within budget when such failure is attributable to such Person's negligent or wrongful actions or inactions; (3) substandard quality of work; or (4) failure to complete work and the City calls upon the performance bond holder to complete the work; (5) the amount of time required to complete the work exceeds the greater of 10% of the project schedule or two calendar weeks beyond the required contract completion date, as contained in the Contract, and liquidated damages were assessed; (6) Contractor's inability to provide the necessary insurance coverage during the contract term; (7) Contractor's inability to acquire the necessary insurance coverage within thirty days of awarding the Contract, or (8) any negligent or wrongful failure to cooperate with the city such that timely, satisfactory completion of the work was jeopardized. The occurrences of substandard performance described herein may occur on the same Contract or on different Contracts.

(iii) One or more occurrences of substandard performance as provided in subsection (h)(3)(ii), within the first year after a Debarment pursuant to this Section.

(4) Grounds for Debarment of One Year.

(i) One or more occurrence(s) of substandard performance by such Person on any Contract, including, but not limited to, (1) a material breach of the Contract; (2) a failure to complete work required under the contract on time and/or within budget when such failure is attributable to such Person's negligent or wrongful actions or inactions; (3) substandard quality of work; or (4) failure to complete work and the City calls upon the performance bond holder to complete the work; (5) the amount of time required to complete the work exceeds the greater of 10% of the project schedule or two calendar weeks beyond the required contract completion date, as contained in the Contract, and liquidated damages were assessed; (6) Contractor's inability to acquire the necessary insurance coverage within thirty days of awarding the Contract; or (7) any negligent or wrongful failure to cooperate with the city such that timely, satisfactory completion of the work was jeopardized. The occurrences of substandard performance described herein may occur on the same Contract or on different Contracts.

(ii) The Bidder or Contractor made two or more claims of computational or other error in a bid to the city within a two-year period.

(iii) The Bidder or Contractor failed to timely submit bond, Contract, insurance documents, or any other documentation required as a condition of award or performance of a Contract.

(iv) The Bidder or Contractor has been found to have submitted claims with materially false information through a contractual and/or legal process, or has been found to have violated the False Claims Act (Cal. Gov. Code §§ 15650 et seq.).

(i) Debarment Proceedings before a Debarment Hearing Board.

(1) The Debarment Hearing Board shall hear all recommendations for Debarment other than:

(i) permanent Debarment, which are heard in accordance with subsection (j); and

(ii) Debarment based on unsatisfactory final performance evaluations, which are heard in accordance with subsection (I).

(2) The Debarment Hearing Board shall determine by a Preponderance of the evidence whether a Bidder or Contractor is to be Debarred and for what length of time in accordance with this Section. The Debarment Hearing Board may increase, decrease, or accept the Department's recommendation of the length of Debarment. The Debarment Hearing Board may not impose less than the length of Debarment specified in subsections (h)(2), (h)(3), and (h)(4).

(3) The Debarment Hearing Board's decision on Debarment must be in writing and is final. The Debarment decision shall be issued to the Bidder or Contractor in writing.

(4) The failure of a Person recommended for Debarment to appear at a debarment hearing after notice under subsection (g) constitutes a waiver of that Person's right to contest the Debarment recommendation, and the Department's recommendation shall become final.

(j) Debarment Proceedings before an Independent Hearing Officer.

(1) The City Manager shall appoint an independent hearing officer as required by Section 1-405.

(2) An independent hearing officer shall hear all recommendations that include one or more grounds for permanent Debarment, except for Debarments based on unsatisfactory final performance evaluations, which are heard in accordance with subsection (l).

(3) The independent hearing officer shall determine by a preponderance of the evidence whether a Person is to be Debarred and for what length of time, in accordance with this Section. The independent hearing officer may increase, decrease, or accept the Department's recommendation of the length of Debarment. The independent hearing officer may not reduce the length of a permanent Debarment if the hearing officer determines a violation identified in subsection (h)(1) occurred, or impose less than the length of Debarment specified in subsection (h)(2) and (h)(4).

(4) The independent hearing officer's decision on Debarment must be in writing and is final. The Debarment decision shall be issued to the Bidder or Contractor in writing.

(5) The failure of a Person recommended for Debarment to appear at a Debarment hearing after notice under subsection (g) constitutes a waiver of that Person's right to contest the Debarment recommendation, and the Department's recommendation shall become final,

(k) Imputation of Knowledge and Conduct.

(1) The fraudulent, criminal, or other serious misconduct of any officer, director, shareholder, partner, employee, or other individuals associated with a Bidder or Contractor may be imputed to the Bidder or Contractor when the conduct occurred in connection with the individual's performance of duties for, or on behalf of, the Bidder or Contractor, or with the Bidder's or Contractor's knowledge, approval, or acquiescence. Acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.

(2) The fraudulent, criminal, or other serious misconduct of a Bidder or Contractor may be imputed to any officer, director, shareholder, partner, employee, or other individual associated with the Bidder or Contractor who participated in, knew of, or had reason to know of the Bidder's or Contractor's conduct.

(3) The fraudulent, criminal, or other serious misconduct of one Bidder or Contractor participating in a joint venture or similar arrangement may be imputed to other participating Bidders or Contractors if the conduct occurred for, on approval of, or acquiescence of these Bidders or Contractors. Acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.

(l) Appeal of Final Performance Evaluations.

(1) A Bidder or Contractor may appeal a final performance evaluation with a rating of unsatisfactory on a public works Contract or an architectural or engineering consultant Contract to the Public Works Director.

(2) A Bidder or Contractor may appeal a final performance evaluation with a rating of unsatisfactory on a goods, services, or non-engineering, non-architectural consultant Contract to the Purchasing Manager.

(3) A Bidder or Contractor must submit an appeal in writing to the Public Works Director or Purchasing Manager within sixty days after notice of the final performance evaluation pursuant to subsection (g). Evaluations may not be appealed after sixty days from the date of such notice.

(4) The decision of the Public Works Director and the Purchasing Manager to uphold an unsatisfactory performance evaluation shall be issued to the Bidder or Contractor in writing and is final.

(5) The City Manager may, upon recommendation of the Public Works Director or Purchasing Manager, Debar a Bidder or Contractor who has received an unsatisfactory final performance evaluation. This determination shall be in writing and is final.

(m) Judicial Review. California Code of Civil Procedure section 1094.6 governs judicial review of a final Debarment decision.

(n) Creation of List of Debarred and Suspended Persons.

(1) The City Manager shall create, maintain, and make publicly available a list of the names, addresses, and applicable Debarment or suspension commencement and expiration dates of all Debarred or Suspended Bidders and Contractors.

(2) The City Manager shall establish procedures to provide for the effective use of the list to ensure that the city does not do business with Bidders or Contractors who have been Debarred or Suspended.

(o) Effect of Debarment or Suspension.

(1) Bidders and Contractors who have been Debarred or Suspended are excluded from submitting bids, submitting responses to requests for proposal or qualifications, receiving contract awards, executing Contracts, participating as a subcontractor, employee, agent, or representative of another Person contracting with the city.

(2) The city shall not accept, evaluate for award, or include any proposals, quotations, bids, or offers from any Debarred or Suspended Bidders and Contractors.

(3) The city shall not award or approve the award of a Contract or execute a Contract under which a Debarred or Suspended Bidder or Contractor is intended to participate as a subcontractor or material supplier.

(4) A Prime Contractor shall not employ, subcontract with, or purchase materials, or services from, a Debarred or Suspended Bidder or Contractor.

(5) The City Manager shall report Debarments under this Section to the appropriate local, state, and federal agencies and authorities.

(p) Effect of Debarment or Suspension on an Affiliate.

(1) Affiliates are Debarred or Suspended to the same extent as the Debarred or Suspended Bidder or Contractor.

(2) A Bidder or Contractor may appeal the city's determination that the Bidder or Contractor is an Affiliate in writing to the City Manager within sixty days after notice of the Affiliate's Debarment pursuant to subsection (g).

(3) An Affiliate may not appeal the Debarment of any other Bidder or Contractor underlying the Affiliate's Debarment.

(4) The decision of the City Manager shall be issued to the Bidder or Contractor who is an Affiliate in writing and is final.

(q) Effect of Debarment by Another Governmental Agency. The City Manager may Debar a Bidder or Contractor who has been Debarred by another governmental agency until the term of the Debarment by the other governmental agency expires. The City Manager's decision under this section is final, and not subject to a hearing before the Debarment Hearing Board or an independent hearing officer.

(r) Liability for Increased Costs. Any Bidder or Contractor who enters into a Contract, either directly as a Prime Contractor or indirectly as a subcontractor, during a period of suspension or Debarment imposed upon that Bidder or Contractor, shall be liable to the city for increased costs incurred as a result of replacing the Debarred or Suspended Bidder or Contractor.

(s) Effect of Debarment or Suspension on Existing Contracts.

(1) The city may continue or terminate Contracts or subcontracts it has with a Debarred or Suspended Bidder or Contractor that are in existence at the time the Bidder or Contractor is Debarred or Suspended.

(2) The city shall not renew or otherwise extend the duration of current Contracts, or consent to subcontracts, with Debarred or Suspended Bidders or Contractors, unless the City Manager certifies in writing compelling reasons for such renewal or extension.

(3) The city may Contract with another Person to perform public works, goods, services, or consultant services that a Debarred Contractor had been hired to perform.

(t) Agreement Not to Bid or Submit Proposals in Lieu of Debarment or Suspension.

(1) The city may offer a Bidder or Contractor the opportunity to execute a written agreement not to bid or submit proposals or perform any work on Contracts in lieu of the city's pursuing Debarment or Suspension.

(2) This agreement not to bid or submit proposals for Contracts in lieu of the city's pursuing Debarment or Suspension does not constitute a Debarment.

(Added Ord. 2003-11, § 7, eff. 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08; Am. Ord. 2018-29, §§ 1, 2, eff. 6-23-18).

Whenever any officer requires any materials, supplies, equipment, services, and/or public works construction for his or her office or department, he or she shall file with the Purchasing Manager a requisition on forms provided by the Purchasing Manager. Such requisition shall bear the approving signature or electronic equivalent of the officer or deputy who has jurisdiction of the department in which it originated. Such requisition shall specifically describe the article or articles and the kind and quantity desired. It may also specify the brand or make desired.

(Rep. and Added Ord. 5649, 1959; Am. Ord. 96-71, § 1, eff. 12-13-96; Am. Ord. 2007-96, § 3, eff. 1-19-08).

(a) When the Purchasing Manager makes a purchase, he or she shall issue a purchase order. It shall be addressed to the seller, dated and numbered, and shall specify the articles or supplies to be purchased and the price, and shall state the place or to whom delivery of the article or articles so purchased shall be made.

(b) The original copy of the purchase order shall be delivered to the dealer or seller and the receiving copy or electronic equivalent thereof shall be delivered to the officer making the requisition. Upon receipt of the article or articles specified, the receiving copy shall be approved by a person designated by the City Manager or Department Director and returned promptly to the Finance Department.

(c) Any officer or employee who issues any requisition shall have personal knowledge of the receipt of such goods or the rendition of such services or work, shall have obtained such knowledge by individually checking such goods or observing the rendering of said services, and shall not accept goods, services or work which do not meet the specifications.

(Rep. and Added Ord. 5649, 1959; Am. Ord. 96-71, § 1, eff. 12-13-96; Am. Ord. 2007-96, § 3, eff. 1-19-08)

(a) Except for contracts for which competitive bidding is required by the Charter and contracts for any public work of improvement obtained pursuant to Chapter 4, Article 5 of this Code, the Purchasing Manager is authorized to contract for all equipment, materials, supplies and any public work of improvement required by the city for which an appropriation has been made.

(b) Except for contracts for legal services, the City Manager is authorized to enter into contracts for which an appropriation has been made or is unnecessary; provided the contract involves an expenditure of city moneys, receipts of funds from another party, or liability exposure of less than or equal to one hundred thousand dollars ($100,000.00). Council approval of any contract or any amendment to the contract for services under this subsection is required if the total proposed expenditure of city moneys under the contract and any amendments thereto exceeds the respective amount for which the City Manager is authorized to contract.

(c) The City Attorney is authorized to contract for all legal services required by the city for which an appropriation has been made.

(d) Council may authorize by resolution some other official or employee to contract for services, equipment, materials, supplies or public works construction for which competitive bidding is not required by the Charter.

(e) Splitting or separating into smaller work orders, projects, purchase orders or contracts for the purpose of evading the provisions of this section is prohibited. Splitting or separating shall mean and include reducing the amount of any service to be furnished to the city under circumstances where there is reasonable knowledge that the same service will be additionally required, there are funds available for that project or purchase and the sole purpose is to knowingly avoid the requirements herein. In instances where it is deemed to be to the benefit of the city to split or separate a transaction, the proposed splitting or separation shall be referred to the Council for its findings and determination in accordance with this subsection.

(f) Any contract to be valid hereunder shall be in writing and approved as to form by the City Attorney.

(g) Except for legal services, the City Manager shall establish an Administrative Order setting forth criteria and procedures for the selection of consultants to provide professional consulting services (including, but not limited to, auditors, certified public accountants, engineers, architects, landscape architects, management consultants, planners, surveyors, and construction project managers) to the city. Procedures shall include an objective process as a means of protecting the public from misuse of public funds, to provide qualified proposers with a fair opportunity to enter the process, and to prevent favoritism, fraud and corruption in the awarding of public contracts. The City Manager may make non-material changes to the Administrative Order at any time, subject to approval as to form by the City Attorney. Material changes to the Administrative Order shall be submitted to the Council for review and approval.

(h) The objective selection process established pursuant to subsection (g) above shall be used unless the City Manager determines in writing that emergency or exigent circumstances exist, or the consultant is uniquely qualified. Before approving a consulting services contract, or an amendment to a consulting services contract, requiring the approval of the Council under subsection (b) above, Council must uphold the City Manager's written determination that emergency or exigent circumstances exist, or the consultant is uniquely qualified, sufficient to bypass the established objective selection process, as determined by a separate affirmative vote of a Council majority.

(Am. Ord. 2007-96, § 3, eff. 1-19-08; Am. Ord. 2011-10, § 1, eff. 4-25-11; Am. Ord. 2018-3, § 1, eff. 2-19-18; Am. Ord. 2024-020, § 1, eff. 7-29-24).

Except for those contracts funded by the federal or state government when such funding would be jeopardized because of this preference, the Council authorizes the Purchasing Manager to extend a preference to a local business as expressly set forth herein.

(a) For purposes of this subsection, "local business" shall mean a business with a fixed primary or branch office either (i) within a twenty-five mile radius of Fresno City Hall, located at 2600 Fresno Street in the City of Fresno, or (ii) within the County of Fresno; and which fixed primary or branch office was established prior to the city inviting bids for the respective purchase. Whenever the bid amount of the lowest responsive and responsible bid exceeds five hundred thousand dollars ($500.000.00), the Purchasing Manager, in the evaluation of any and all competitive bids for the purchase of materials, supplies, and/or equipment pursuant to Charter Section 1208, shall extend a five percent (5%) preference consistent with subsection (c) below.

(b) For purposes of this subsection, "local business" shall mean a business (i) having a total of one hundred or fewer employees, an average annual gross receipts of twelve million dollars ($12.000.000.00) or less over the three calendar years immediately prior to the year in which city is inviting bids for the respective purchase, and having a valid small business certification issued by the State of California; (ii) with a fixed primary or branch office either within a twenty-five mile radius of Fresno City Hall, located at 2600 Fresno Street in the City of Fresno, or within the County of Fresno; and (iii) which fixed primary or branch office was established prior to the city inviting bids for the respective purchase. Whenever the bid amount of the lowest responsive and responsible bid is less than or equal to five hundred thousand dollars ($500.000.00), the Purchasing Manager, in the evaluation of any and all competitive bids for the purchase of materials, supplies, and/or equipment pursuant to Charter Section 1208, shall extend a five percent (5%) preference consistent with subsection (c) below.

(c) The preference in (a) and (b) above shall be extended consistent with each of the following:

(1) The amount of the preference shall be equal to the amount of five percent (5%) applied to the lowest responsive and responsible bid; provided, however, in no event shall the amount of the preference exceed the sum of seventy-five thousand dollars ($75,000.00).

(2) If the bidder submitting the lowest responsive and responsible bid is not a local business, and if a local business has also submitted a responsive and responsible bid, and, with the benefit of the preference, the local business's bid is equal to or less than the original lowest responsive and responsible bid, the city shall award the contract to the local business at its submitted bid price.

(3) The bidder shall certify, under penalty of perjury, that the bidder qualifies as a local business. The preference is waived if the certification does not appear on the bid.

(d) For purposes of this subsection, "local business" shall mean a business with a fixed primary or branch office either (i) within a twenty-five mile radius of Fresno City Hall, located at 2600 Fresno Street in the City of Fresno, or (ii) within the County of Fresno; and which fixed primary or branch office was established prior to the city inviting bids for the respective purchase. The Purchasing Manager, in the evaluation of any and all competitive bids for any public work of improvement pursuant to Charter Section 1208, shall extend five percent (5%) preference for a local business consistent with subsection (e)(1) below. Local preference will be demonstrated by the total number of individuals a business employs within Fresno County. In order to obtain the five percent (5%) differential, the bidder shall submit at time of bid a certification to self-perform a minimum of thirty percent (30%) of the contract amount with individuals employed within Fresno County. The bidder shall also submit a certification that a minimum of fifty percent (50%) of the total value of the contract would be performed by either the bidder or subcontractors meeting the local preference criteria.

(e) The preference in (d) above shall be extended consistent with each of the following:

(1) The amount of the preference shall be equal to the amount of five percent (5%) applied to the lowest responsive and responsible bid; provided however, in no event shall the amount of the preference exceed the sum of seventy-five thousand dollars ($75,000.00).

(2) If the bidder submitting the lowest responsive and responsible bid is not a local business, and if a local business has also submitted a responsive and responsible bid, and, with the benefit of the preference, the local business's bid is equal to or less than the original lowest responsive and responsible bid, the city shall award the contract to the local business at its submitted bid price.

(3) The bidder shall certify, under penalty of perjury, that the bidder qualifies as a local business. The preference is waived if the certification does not appear on the bid.

(Am. Ord. 2007-96, § 3, eff. 1-19-08; Am. Ord. 2008-12, § 1, eff. 4-14-08; Ord. No. 2009-16, § 1, eff. 5-10-09; Am. Ord. 2014-29, § 1, eff. 8-9-14; Am. Ord. 2017-2, §§ 1—3, eff. 2-17-17).

(a) Findings. The Council finds and declares all of the following:

(1) The City is experiencing historical high rates of unemployment.

(2) The severe negative impact is compounded in the city economy with the employment reduction in the local development and utility industries.

(3) The United States Supreme Court has declared a job policy for residents to be a legitimate policy.

(4) Funds spent locally, with local firms, recirculate through the local economy approximately four times, generating jobs, taxes and consumer spending.

(5) The provisions that the Council seeks to enact in this section as the city's restrictions on the use of its own funds as a participant in the marketplace are simply a self-imposed limitation on the city's power to contract.

(6) The provisions that the Council seeks to enact in this section have a rational relationship to the legitimate governmental purpose in that a local preference for services will stimulate the local economy and reduce unemployment.

(b) Contracts for Consulting Services. The following shall apply for services contracted for pursuant to Section 4-107 of this Code, except for those projects funded by the federal or state government when such funding would be jeopardized because of this preference:

(1) For purposes of this section, "local firm" shall mean a firm with a fixed primary or branch offices within a twenty-five mile radius of Fresno City Hall, located at 2600 Fresno Street in the City of Fresno, and a majority of the work on the project will be performed by employees who are permanently assigned to such office prior to the city requesting proposals for the project and whose regular duties would include local work on other than city projects.

(2) Subject to subdivision (3) below, the City shall contract for professional consulting services (including, but not limited to, engineers, architects, attorneys, landscape architects, planners, surveyors, and construction project managers) by giving a primary preference to local firms, when such firms have the necessary qualifications, experience and expertise to complete the project(s) being proposed for work, as determined by the city. A secondary preference shall be similarly given to non-local firms which form an association for pecuniary profit with local firms for the projects being proposed wherein the benefit to the local firm(s) is an amount greater than fifteen percent of the total contract price for the project(s).

(3) Notwithstanding subdivision (2) above, the preference given for local firms, or non-local firms which associate with local firms, shall not be applicable whenever, to the best knowledge of the city, the number of local firms providing the specific consulting service within the area of expertise for the subject matter of the work is less than three.

(4) The City shall, in contracting for professional services, other than consulting services, extend a five per cent preference for a local firm in evaluating proposals for award. The amount of the preference shall be equal to the amount of the percentage applied to the lowest proposal price from a firm other than a local firm, if the proposer submitting the lowest proposal price is not a local firm. The proposer shall certify, under penalty of perjury, that the proposer qualifies as a local firm. The preference is waived if the certification does not appear on the proposal.

(c) Other Contracts. The Purchasing Agent, in his or her discretion, may extend a preference to a local business in the purchase of materials, supplies, equipment and/or public works construction for which competitive bidding is not required by Charter Section 1208(a) provided that such preference is applied in the same manner as described in Section 4-108 above and/or as otherwise provided by resolution of the Council.

(Added Ord. 94-39, § 1, eff. 6-24-94; Am. Ord. 96-71, § 1, eff. 12-13-96; Am. Ord. 2007-96, § 3, eff. 1-19-08; Am. Ord. 2011-34, § 1, eff. 12-24-11).

The person furnishing materials, supplies, equipment, services, and/or public works construction to the city shall deliver all invoices therefor to the Controller who shall either approve or disapprove said invoices. All approved invoices shall be paid by the Controller.

(Rep. and Added Ord. 5649, 1959; Am. Ord. 96-71, § 1, eff. 12-13-96; Am. Ord. 2007-96, § 3, eff. 1-19-08).

(a) "Project Labor Agreement" shall have the definition set forth in California Public Contract Code section 2500.

(b) The Council may require a Project Labor Agreement for any contract for construction projects for the city, as provided in California Public Contract Code sections 2500 through 2503.

(Added Ord. 2000-18, § 1, 3-12-00; Am. Ord. 2007-96, § 3, eff. 1-19-08; Ord. No. 2014-50, § 2, eff. 1-2-15)

Any architectural firm, engineering firm, specialty consultant or individual retained by the city to assist in the development of criteria or preparation of the preliminary design or respective request for proposals or bid invitation for a public work of improvement shall not be eligible to participate in the competition with any Design-Build Entity or other bidder or proposer for, or as a subcontractor, perform any work required of the Design-Build Entity or other contractor pursuant to, any Design-Build or other public work of improvement contract awarded, or to be awarded, by the city pursuant to this chapter.

(Added Ord. 2003-11, § 9, eff. 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08).

(a) It is the express policy of the city to encourage and monitor the utilization of apprentices by contractors on city public work of improvement projects.

(b) Unless such a requirement would conflict with a state or federal law or regulation applicable to the particular contract for a public work of improvement, the city shall insert all of the following requirements in each of its contracts with the prime contractor for any public work of improvement with an estimated value of five hundred thousand dollars ($500,000.00) or more:

(1) Contractor shall utilize apprentices for work under the contract in accordance with, and shall comply and be responsible for complying with, the requirements of California Labor Code Section 1777.5, as it may be amended from time to time, and Article 10, Subchapter 1, Chapter 2, Title 8 of the California Code of Regulations for all apprenticeable occupations applicable to the work as defined in such laws and regulations.

(2) Contractor shall provide under the contract documentation demonstrating compliance with the above requirement by providing copies of each of the following:

(i) All contract award information (e.g., completed form DAS 140) sent by contractor to the State Division of Apprenticeship Standards and each applicable apprenticeship program in accordance with California Labor Code Section 1777.5, as may be amended from time to time, including identification of addressee.

(ii) All requests by contractor for approval, and all responses and certificates from any applicable apprenticeship program disapproving or approving contractor, to train apprentices; if any.

(iii) All requests by contractor for dispatch of apprentices from any applicable apprenticeship program (e.g., completed form DAS 142); and all responses thereto, if any.

(iv) All certifications, if any, of contractor as an individual employer apprenticeship program by the State Division of Apprenticeship Standards or the California Apprenticeship Council.

(v) All apprenticeship agreements of apprentices employed by contractor and performing work under the contract.

(vi) A verified statement by the contractor, within sixty days after concluding the work, of the respective journeyperson and apprentice hours performed on the contract.

(vii) All certificates of any exemption by the State Division of Apprenticeship Standards, California Apprenticeship Council or any apprenticeship program of contractor from any requirements of California Labor Code Section 1777.5, as may be amended from time to time.

(viii) Other documentation as may be requested by city as a party to the contract.

(3) Contractor shall include in its subcontracts the obligation for subcontractors performing work under the contract to comply with this and the foregoing requirements under Subdivisions (1) and (2) above, and contractor shall be responsible for providing the required documentation from subcontractors to the city.

(Added Ord. 2005-4, § 1, eff. 2-22-05; Am. Ord. 2007-96, § 3, eff. 1-19-08).

The provisions of California Public Contract Code shall not be applicable to city, in whole or in part, except as expressly provided by ordinance or incorporated in city's bid specifications or contracts.

(Added Ord. 2001-87, § 1, eff. 1-8-02; Am. Ord. 2007-96, § 3, eff. 1-19-08).

Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this chapter. The definition of each word and phrase shall constitute, to the extent applicable, the definition of each word which is derivative from it, or from which it is a derivative, as the case may be.

(a) "Facility" shall mean any plant, structure, ground facility, utility system, streets and highways, or other improvement of real property.

(b) "Lot or tract of land" shall mean a lot or tract of land that is or is to be owned by the city, or that may be owned by the city pursuant to the exercise of a purchase option.

(c) "Maintenance work" shall mean routine, recurring, and usual work for the preservation or protection of any facility for its intended purposes; minor repainting; resurfacing of streets and highways at less than one inch; and landscape maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems.

(d) "Paid for in whole or in part with city funds or with financing to be retired with city funds" shall mean the payment of money or the equivalent of money by the city, including the transfer of an asset of value for less than fair market price; fees, costs, rents, loans, interest rates or other obligations that would normally be required in the execution of the contract, which are paid, reduced, charged at less than fair market value, waived or forgiven; money to be repaid on a contingent basis; or credits applied against repayment obligations. Notwithstanding the foregoing, "paid for in whole or in part with city funds or with financing to be retired with city funds" shall not mean or include financing resulting from the formation of a community facility district pursuant to the Mello-Roos Community Facilities Act of 1982 set forth in Sections 53311 of the Government Code.

(e) "Project" shall mean, when used in the generic sense, the acquisition and/or improvement undertaken in a single proceeding.

(f) "Public work of improvement" shall mean that portion of a work of improvement contracted for by the city, paid for in whole or in part with city funds or with financing to be retired with city funds, and that is or is to be owned by the city or that may be owned by the city subject to its exercise of a purchase option; provided that, for any capital lease or contract subject to a purchase option, if such lease or contract were fully performed by the city, and the option exercised in the case of the contract, the net present value of the respective lease or contract would total an amount greater than two million dollars ($2,000,000). For purposes of this subsection, "fully performed" shall mean that the option is exercised at the end of the option period, but prior to its expiration. Notwithstanding the foregoing, "public work of improvement" shall not mean or include any of the following:

(1) A work of improvement constructed by persons or entities other than the city as a condition of regulatory or permit approval of an otherwise private development project.

(2) Pursuant to a lease or license of property or facilities owned by the city, a work of improvement constructed thereon by a licensed contractor hired and paid for directly by the tenant or licensee, notwithstanding any provision for rent credits or waiver, in part or in whole, of any fees or costs; provided the work of improvement is required by the respective tenant or licensee for his/her use of the property or facilities.

(3) A work of improvement in a redevelopment project area constructed by persons or entities other than the city as a condition of entering into an agreement with the Redevelopment Agency of the City of Fresno for significant redevelopment, in addition to the work of improvement, in a redevelopment project area.

(g) "Public works construction" shall mean public work of improvement.

(h) "Work of improvement" shall mean the construction, reconstruction, erection, improvement, installation, alteration, renovation, addition to, restoration, repair, painting or repainting, laying of carpet, demolition or removal, in whole or in part, of any building, road, curb, gutter, sidewalk, fence, railroad, bridge, drain, ditch, canal, dam, tunnel, sanitary sewer, storm sewer, water system, well, traffic signs, traffic signals, street lighting system, parking lot, park, playground, and all other facilities. It also means the seeding, sodding, or planting of any lot or tract of land for landscaping purposes, and the excavation, filling, leveling, or grading of any lot or tract of land. Notwithstanding the foregoing, "work of improvement" shall not mean or include any of the following:

(1) Maintenance work.

(2) Work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.

(Added Ord. 2003-11, § 10, eff. 4-4-03; Am. Ord. 2006-160, § 1, eff. 12-31-06; Am. Ord. 2007-96, § 3, eff. 1-19-08).

(a) The design of any new city-owned building containing at least 7500 square feet shall include an alternative design for installation of a solar energy system.

(b) The city shall incorporate solar energy systems into the planning (including the siting of the building), design, and into each of its contracts for construction of any new city-owned building containing at least 7500 square feet. The city shall use its best efforts in the design, construction and calibration so that the installed solar energy system will operate as intended; and shall provide for the ongoing accountability and optimization of the installed solar energy system performance over time.

(c) The report to Council for each award of a contract for a new city-owned building shall include information related to compliance with this section. Thereafter, reports shall be provided Council every other year, giving an accounting of the operations of all solar energy systems installed in connection with the construction of the city-owned building(s).

(d) [Reserved.]

(e) Exemptions. Each of the following is exempt from application of this section whenever Council, by resolution, makes findings of fact supporting non-inclusion of a solar energy system in a new city-owned building, but city shall implement the requirements of this section to the maximum extent practical:

(1) A building for which the design is 30% or more complete on or before the effective date of this section.

(2) A building for which another renewable energy source(s) is available which Council finds is an alternative system of comparable cost, efficiency and energy conservation benefits.

(3) An award of state or federal funding would be jeopardized.

(4) There is a lack of available funding.

(5) Any building specified by Council as exempt from the application of this section.

(f) For purposes of this section, certain words and terms used are defined as follows:

(1) "Building" means any structure used for support or shelter of any use or occupancy, as defined in the California Building Standards Code.

(2) "Solar energy system" means either of the following:

(i) Any solar collector or other energy device whose primary purpose is to provide for the collection, storage and distribution of solar energy for space heating, space cooling, elect generation or water heating.

(ii) Any structural design feature for a building, whose primary purpose is to provide for the collection, storage and distribution of solar energy for electric generation, space heating or cooling, or for water heating.

(Added Ord. 2008-23, § 1, eff. 5-4-08).

(a) Definitions.

(1) "Apprentice" is any worker who is registered and approved by the State of California, Division of Apprenticeship Standards, or who is indentured in a "Viable Apprenticeship Program" as defined in subsection (a)(11).

(2) "City Manager" refers to the City Manager of the City of Fresno, or designee.

(3) "City Referral List" is the list compiled and maintained by the Program Coordinator, listing qualified Journeyman and Apprentice National Targeted Workers residing in the City of Fresno. City shall verify any designated Journeyman worker from the City Referral List meets the definition of Journeyman as defined by California Code of Regulations, Title 8 Section 205, as it may be amended from time to time.

(4) "Contract" means a construction contract for any Public Work of Improvement, as defined in this article.

(5) "Contractor" is defined as any individual firm, partnership, or corporation, or combination thereof, including joint ventures and any subcontractor of any tier, which is an independent business enterprise and which has entered into Contract with respect to the construction of any part of a Public Work of Improvement.

(6) "Division of Apprenticeship Standards Forms" are the forms in which every Contractor will request any and all apprentices from each trade in order to establish compliance with this section, as provided more specifically in the implementing Administrative Order.

(7) "Program Coordinator" means the City employee, or designee, responsible for monitoring Contractors' compliance with federal Disadvantaged Business Enterprise requirements and the requirements of this section.

(8) "Journeyman" shall be defined as set forth in the California Code of Regulations, Title 8 Section 205, as it may be amended from time to time.

(9) "National Economically Disadvantaged Area" is:

i. A zip code outside of the City of Fresno that includes a census tract, or portion thereof, in which the median annual household income is less than $55,000 per year, as measured and reported by the U.S. Census Bureau in the most recent U.S. Census; or

ii. A zip code, or any portion of, which falls inside the City of Fresno, which the average median income of is less than $55,000 per year, as measured and reported by the U.S. Census Bureau in the most recent U.S. Census. The amount shall be adjusted annually to the nearest $1,000 on July 2, based on changes in the Consumer Price Index.

(10) "National Targeted Worker" is an individual who resides in a National Economically Disadvantaged Area.

(11) "Pre-Apprenticeship Program" means a program that works with Viable Apprenticeship Programs and teaches basic technical and job-readiness skills for a designated apprenticeable occupation or occupation sector, to prepare participates for apprenticeship training.

(12) "Viable Apprenticeship Program" means an apprenticeship program that is approved to train in the applicable craft or trade by the California Department of Apprenticeship Standards or U.S. Department of Labor, and which has a graduation rate of no less than fifty percent (50%), or has graduated at least one apprentice annually in each of the five (5) years immediately preceding the date of the award of Contract by City. Any apprenticeship program that has been approved for less than ten (10) years shall be deemed a Viable Apprenticeship Program provided that, following the fifth anniversary of its approval by the California Department of Apprenticeship Standards or U.S. Department of Labor, it graduates at least one apprentice each subsequent year.

(b) Policy. The City shall require all Contracts for any Public Work of Improvement in excess of $200,000, adjusted annually on the first of July to the nearest $1,000 in response to changes in the National Consumer Price Index to include provisions that obligate Contractor to follow targeted hiring procedures, including an obligation to make reasonable good faith efforts, as defined in the implementing Administrative Order, to meet specific hiring requirements for Nationally Targeted Workers, as defined in subsection (c).

(c) National Targeted Hiring Requirements.

(1) For each Contract, the following requirements shall apply to each Contractor with regard to project work actually performed by the Contractor, as well as work included under any subcontract;

(2) The initial mandatory participation level is 15% of all project work hours within each trade performed by Nationally Targeted Workers. Project work hours shall not include hours worked by non-California residents. The Council shall review this ordinance one year from its effective date. Subject to the periodic review process set forth in this subsection below, the mandatory participation level for project work hours shall increase annually up to a mandatory participation level of 40% of project work hours within each trade performed by Nationally Targeted Workers, as follows:

(3) A Contractor employing Apprentices, pursuant to this section, shall employ Apprentice National Targeted Workers in a ratio of not less than one hour of Apprentice National Targeted Worker labor work for every five hours of Journeyman work. The provisions in this section shall in no way adversely affect the apprentice employment ratios prescribed California Labor Code Section 1777.5 and in Section 4-113 of this code. All Apprentices shall work under the direct supervision of a Journeyman from the trade in which the Apprentice is indentured.

(4) Unless such a provision would conflict with a state or federal law applicable to a Contract for a Public Work of Improvement, all City Contracts shall contain provisions requiring each Contractor to make a reasonable good faith effort to employ Apprentice National Targeted Workers who are enrolled in and participating in a Viable Apprenticeship Program or Pre-Apprenticeship Program. This apprenticeship requirement shall apply for each apprenticeable craft or trade in which the Contractor employs workers to perform any of the work under the Contract.

(5) Periodic Review. Every three years from the effective date of this Policy, the City Manager shall evaluate the impact of existing mandatory participation levels.

(6) For any Contractor that has satisfied the criteria for reasonable good faith efforts established by the City Manager pursuant to authority granted in subsection (d):

i. If, in response to a Contractor's written request to the Program Coordinator, made at least seventy-two hours (excluding Saturdays, Sundays, and holidays) before the date on which one or more Apprentice National Targeted Workers are required, a participating Viable Apprenticeship Program or Pre-Apprenticeship Program does not dispatch any Apprentice National Targeted Workers, or dispatches fewer Apprentice National Targeted Workers than requested to such Contractor, that Contractor shall be considered in compliance with the Apprentice National Targeted Worker employment requirement for that trade or craft for the duration of the project from the request date, provided the Contractor employs all Apprentice National Targeted Workers who are dispatched.

ii. A Contractor which is not a participant in, or an affiliate of, an apprenticeship program, and that receives fewer Apprentice National Targeted Workers dispatched than requested, shall not be considered in compliance with the Apprentice National Targeted Worker employment requirement unless the Contractor has made a written request for the dispatch of Apprentice National Targeted Workers from other Viable Apprenticeship Programs or Pre-Apprenticeship Program.

iii. In the event that the City Referral List does not include sufficient numbers of Journeyman to fill, or to fill completely, the requisition of such Contractor for Journeyman within seventy-two hours (excluding Saturdays, Sundays, and holidays), that Contractor shall be free to obtain Journeyman National Targeted Workers from any source.

(7) In the event that no Viable Apprenticeship Program or Pre-Apprenticeship Program exists for a particular craft or trade, the Contractor shall be exempt from the Apprentice National Targeted Worker employment provisions of this section with regard to that craft or trade.

(8) The Contractor shall retain the authority to make individual hiring decisions. This section does not prevent a Contractor from filling job vacancies or newly created positions by transfer or promotion of its existing staff.

(d) Authority. The City Manager shall have authority to implement this section and shall enter into Contracts and promulgate policies to implement the provisions of this section, including, but not limited to, responsibilities identified in this section, and the implementing Administrative Order.

(e) Required Documentation.

(1) Contractors will use only Division of Apprenticeship Standards Forms to request any and all apprentices with a concurrent transmittal of such request to the Program Coordinator, including workers qualified as National Targeted Workers and/or general dispatch.

(2) On standardized forms acceptable to the City, Contractor shall keep, and shall provide to the City concurrent with each claim for payment, an accurate record showing the name, place of residence, hours employed, trade, and classification, and per diem wages, and benefits of each person employed by the Contractor pursuant to a Contract, including full-time, part-time, permanent, and temporary employees. Such submittal shall incorporate a statement verified under penalty of perjury evidencing each Journeyman worker's qualification as a Journeyman, as well as the respective National Targeted Worker Journeyman and National Targeted Worker Apprentice hours performed on the Contract for the period for which the Contractor is claiming payment.

(3) On standardized forms acceptable to the City, Contractor shall keep, and shall provide to the City concurrent with each claim for payment, an accurate record documenting the Contractor's reasonable good faith efforts to comply with the National Targeted Worker employment provisions of this section. Said records shall include: a listing by name and address of all recruitment sources contacted by the Contractor; the date of the recruitment contact, and the identity of the person contacted; the trade and classification, and number of employment referrals requested; the number of National Targeted Workers employed as a result of the contact; and the identity and address of the National Targeted Worker(s) employed pursuant to the contact. Contractors and the Program Coordinator shall maintain copies of all Division of Apprenticeship Standards Forms used on the project, submitted or received, including transmission verification reports that are date/time imprinted, until the project employing such workers is completed, all Contract payments are made, and any issues related to penalties and/or liquidated damages are resolved. All Division of Apprenticeship Standards Forms and transmission verification reports shall be available for inspection and copies provided, upon request by City.

(f) Compliance Procedures.

(1) Contractor shall diligently carry out and adhere to the National Targeted Worker requirements as set forth in this section and in its Contract. The failure of Contractor to comply with the requirements of this section shall be deemed a material breach of Contract.

(2) Consequences of Noncompliance. In addition to any other corrective action allowed by law or Contract, the City Manager has the authority to seek, from any Contractor which fails to comply with this section, any lawful corrective action, which may include but need not be limited to:

i. Withholding of all or any portion of payments due to the Contractor until the non-compliance is cured;

ii. Any other remedy for breach available under the Contract;

iii. Liquidated damages pursuant to subsection (3), below;

iv. Termination of any or all of the Contractor's Contracts with the City; and

v. Suspension, debarment from City contracting within the meaning of Section 4-104 of this Code, or determination of non-responsibility.

(3) Liquidated Damages for Violations. Upon a final determination by the City Manager, or designee, that a Contractor has materially violated the National Targeted Worker terms of the Contract, and after due notice of this determination is given to the Contractor, liquidated damages, on account of non-compliance with the National Targeted Worker requirements, may be withheld by the City from progress payments, or the final payment, due to the Contractor for work performed under the Contract. Depending upon the seriousness or willfulness of the violation, the amount of liquidated damages shall be not less than 25%, and not more than 100%, of the full dollar amount of the National Targeted Worker subcontract involved in the violation as determined by the Program Coordinator.

(g) Application. Except as otherwise provided and subject to all local, state, and federal laws affecting the City's procurement of goods and services, or use of funds, this section shall apply to any Public Work of Improvement of the City, including all departments, agencies, corporations, and attached and unattached boards and commissions, that cumulatively or alternatively utilize any public spending, public funding, or public incentives.

(h) Non-Applicability of Section. The provisions of this section shall not apply to any of the following:

The City Manager shall develop rules and regulations for the application of these exemptions:

(1) Work done by the City with its own personnel and/or equipment.

(2) Any Public Work of Improvement obtained from or through any government entity.

(3) Contracts where the provisions of this section would conflict with federal or state grant funded contracts or conflict with the terms of the grant or subvention.

(4) When the Contract is deemed by Council to be of urgent necessity for the preservation of life, health, or property and such Contract is authorized by resolution passed by at least five affirmative votes of the Council and containing a declaration of the facts constituting the urgency.

(5) Any Public Work of Improvement covered by a project labor agreement which includes hiring preferences.

(i) Geographic Preferences. This section shall be interpreted to prohibit in-state or local geographic preferences in the hiring of National Targeted Workers for City's contracts for Public Work of Improvement utilizing federal or state funding.

(j) Local Funds. Provided no federal or state funding is jeopardized, a Public Work of Improvement funded solely by local funds shall impose a requirement on Contractors that National Targeted Workers must reside in a National Economically Disadvantaged Area located within the City of Fresno and as defined by subsection (b), paragraph (9), of this Ordinance.

(k) Indemnity. A Contractor under this section shall, to the furthest extent allowed by law, agree to indemnify, hold harmless, and defend the City and each of its officers, officials, employees, agents, and volunteers in a form approved by the City Risk Manager.

(l) Severability. If this section or any sentence, clause, or phrase of this section is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this section. The Council hereby declares that it would have passed this Ordinance and adopted this and each section, sentence, clause, or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared invalid or unconstitutional.

(Added Ord. 2016-12, § 1, eff. 6-2-16; Am. Ord. 2023-025, § 1, eff. 9-15-23).