Richmond Municipal Code Art. IX Public Works Construction

The responsibility and authority for the management of public works construction contracts is delegated to the Public Works Director.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

For the purpose of the management of public works construction contracts, the following terms shall have the meanings set forth below:

(a) "Architectural and engineering services" means:

(1) Professional services of an architectural or engineering nature, as defined by state law, if applicable, which are required to be performed or approved by a person licensed, registered, or certified to provide such services as described in this section;

(2) Professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property; and

(3) Such other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including: studies, investigations, surveying, mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services.

(b) "Design-bid-build" means a project delivery method in which the City sequentially awards separate contracts, the first for architectural and engineering services to design the project and the second for construction of the project according to the design.

(c) "Design-build" means a project delivery method in which the City enters into a single contract for design and construction of an infrastructure facility.

(d) "Design-build-finance-operate-maintain" means a project delivery method in which the City enters into a single contract for design, construction, finance, maintenance, and operation of an infrastructure facility over a contractually defined period. No City funds are appropriated to pay for any part of the services provided by the contractor during the contract period.

(e) "Design-build-operate-maintain" means a project delivery method in which the City enters into a single contract for design, construction, maintenance, and operation of any infrastructure facility over a contractually defined period. All or a portion of the funds required to pay for the services by the contractor during the contract period are either appropriated by the City before award of the contract or secured by the City through fare, toll, or user charges.

(f) "Design requirements" means the written description of the infrastructure facility or service to be procured under this section, including:

(1) Required features, functions, characteristics, qualities, and properties that are required by the City;

(2) The anticipated schedule, including start, duration, and completion; and

(3) Estimated budgets (as applicable to the specific procurement) for design, construction, operation, and maintenance.

The design requirements may, but need not, include drawings and other documents illustrating the scale and relationship of the features, functions, and characteristics of the project.

(g) "Independent peer reviewer services" are additional architectural and engineering services provided to the City in design-build-operate-maintain or design-build-finance-operate-maintain procurements. The function of the independent peer review is to confirm that the key elements of the professional engineering and architectural design provided by the contractor are in conformance with the applicable standard of care.

(h) "Infrastructure facility" means a building; structure; or networks of buildings, structures, pipes, controls, and equipment that provide transportation, utilities, public education, or public safety services. Included are government office buildings; public schools; courthouses, jails; prisons; water treatment plants, distribution systems, and pumping stations; solid waste disposal plants, incinerators, landfills, and related facilities; public roads and streets; highways; public parking facilities; public transportation systems, terminals, and rolling stock; rail, air, and water port structures, terminals, and equipment.

(i) "Operations and maintenance" means a project delivery method whereby the City enters into a single contract for the routine operation, routine repair, and routine maintenance of an infrastructure facility.

(j) "Proposal development documents" means drawing and other design-related documents that are sufficient to fix and describe the size and character of an infrastructure facility as to architectural, structural, mechanical and electrical systems, materials, and such other elements as may be appropriate to the applicable project delivery method.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

(a) The following project delivery methods are authorized for procurements relating to infrastructure facilities and services in the City:

(1) Design-bid-build.

(2) Operations and maintenance.

(3) Design-build.

(4) Design-build-operate-maintain.

(5) Design-build-finance-operate-maintain.

(b) Participation in a report or study that is subsequently used in the preparation of design requirements for a project will not disqualify a firm from participating as a member of a proposing team in a design-build, design-build-operate-maintain, or design-build-finance-operate-maintain procurement unless such participation would provide the firm with a substantial competitive advantage.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

(a) Scope. This section specifies the source selection methods applicable to procurements for the project delivery methods identified in Section 2.52.310 (Competitive sealed bids), except as provided in Section 2.52.324 (Unsealed quotes and small purchases), 2.52.326 (Sole source procurement), and 2.52.334 (Emergency procurements).

(b) Design-Bid-Build.

(1) Design—Architectural and Engineering Services. The qualifications-based selection process set forth in Section 2.52.960 (Architectural and engineering services) will be used to procure architectural and engineering services in design-bid-build procurements.

(2) Construction. Competitive sealed bidding, as set forth in Section 2.52.310 (Competitive sealed bids), will be used to procure construction in design-bid-build procurements, except where regulations authorize the use of competitive sealed proposals, as set forth in Section 2.52.315 (Competitive sealed proposals), for contracts for construction management at-risk.

(c) Operations and Maintenance. Sources for contracts for operations and maintenance must be procured as set forth in Section 2.52.200(f) (Source selection database).

(d) Design-Build. Contracts for design-build must be procured by competitive sealed proposals, as set forth in Section 2.52.315 (Competitive sealed proposals), except that the regulations may describe the circumstances under which particular design-build procurements will not require the submission of proposal development documents.

(e) Design-Build-Operate-Maintain. Contracts for design-build-operate-maintain must be procured by competitive sealed proposals as set forth in Section 2.52.315 (Competitive sealed proposals).

(f) Design-Build-Finance-Operate-Maintain. Contracts for design-build-finance-operate-maintain must be procured by competitive sealed proposals, as set forth in Section 2.52.315 (Competitive sealed proposals).

(Ord. No. 14-20 N.S., § I, 6-30-2020)

(a) Establishment of regulations. The Public Works Director will establish regulations describing project delivery methods. These regulations will:

(1) Set forth criteria to be used in determining which project delivery method is to be used for a particular project;

(2) Grant to the Public Works Director, or the head of the department responsible for carrying out the project, the discretion to select an appropriate project delivery method for a particular project;

(3) Describe the bond, insurance, and other security provisions contained in Section 2.52.980 of this chapter;

(4) Describe the appropriate contract clauses and fiscal responsibility requirements that apply to each project; and

(5) Require the Public Works Director to include in the contract file a written statement setting forth the facts that led to the selection of a particular project delivery method for each project.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

(a) Each request for proposals for design-build, design-build-operate-maintain, or design-build-finance-operate-maintain must:

(1) Include design requirements;

(2) Solicit proposal development documents;

(3) Pre-qualify offerors by issuing a request for qualifications in advance of the request for proposals, when the Public Works Director determines that the cost of preparing proposals is high in view of the size, estimated price, and complexity of the procurement;

(4) Select a short list of responsible offerors before discussions and evaluations under Section 2.52.315, if the number of proposals that will be short-listed is stated in the request for proposals, and prompt public notice is given to all offerors as to which proposals have been short-listed;

(b) Each request for proposals for design-build, design-build-operate-maintain, or design-build-finance-operate-maintain must state the relative importance of:

(1) Demonstrated compliance with the design requirements;

(2) Offeror qualifications;

(3) Financial capacity;

(4) Project schedule;

(5) Price (or life-cycle price for design-build-operate-maintain and design-build-finance-operate maintain procurements);

(6) Other factors, if any; and

(7) Must require each offeror, when the contract price is estimated to exceed $10,000,000.00 or when the contract period of operations and maintenance is ten years or longer [in circumstances established by regulation], to identify an independent peer reviewer whose competence and qualifications to provide such services will be an additional evaluation factor in the award of the contract.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

(a) Policy. It is the policy of this City to publicly announce all requirements for architectural and engineering services that are estimated to exceed a total cost of $50,000.00, and to negotiate contracts for architectural and engineering services based on demonstrated competence and qualification for the type of services required, and at fair and reasonable prices.

(b) Selection Committee.

(1) In the procurement of architectural and engineering services, the Public Works Director will encourage firms engaged in the lawful practice of their profession to submit annually a statement of qualifications and performance data. The Public Works Director will assemble an Architect-Engineer Selection Committee for each architectural and engineering services contract over $25,000.00. The selection committee contracts under this amount must be established in accordance with regulations published by the Public Works Director. The selection committee must evaluate current statements of qualifications and performance data on file with the City, together with those that may be submitted by other firms regarding the proposed contract.

(2) The selection committee must conduct discussions with no less than three firms regarding the contract and the relative utility of alternative methods of approach for furnishing the required services. The committee must then select order of preference, based upon criteria established and published by the selection committee, no less than three firms deemed to be the highest qualified to provide the services required.

(c) Negotiations.

(1) The Director of the department requiring the services (hereafter referred to as Director) will negotiate a contract with the highest qualified firm for architectural and engineering services at compensation that the Director determines in writing to be fair and reasonable to the City. In making this decision, the Director must take into account the estimated value, the scope, the complexity, and the professional nature of the services to be rendered. Should the Director be unable to negotiate a satisfactory contract with the firm considered to be the most qualified, at a price the Director determines to be fair and reasonable to the City, negotiations with that firm will be formally terminated.

(2) The Director must then undertake negotiations with the second most qualified firm. Failing accord with the second most qualified firm, the Director will formally terminate negotiations. The Director must then undertake negotiations with the third most qualified firm. Should the Director be unable to negotiate a contract at a fair and reasonable price with any of the selected firms, the Director will select additional firms in order of their competence and qualifications, and the Director will continue negotiations in accordance with this section until an agreement is reached.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

(a) Requirement for Bid Security. Bid security must be required for all competitive sealed bidding for construction contracts in a design-bid-build procurement when the price is estimated to exceed $50,000.00. Bid security must be a bond provided by a surety company authorized to do business in this state, or the equivalent in cash, or otherwise supplied in a form satisfactory to the City. Nothing herein prevents the requirement of such bonds on such contracts under $50,000.00 when the circumstances warrant.

(b) Amount of Security. Bid security must be in an amount equal to at least ten percent of the amount of the bid.

(c) Rejection of Bids for Noncompliance with Bid Security. When the invitation for bids or notice to contractors requires security, noncompliance requires that the bid be rejected unless, pursuant to regulations, it is determined that the bid fails to comply in a nonsubstantial manner with the security requirements.

(d) Withdrawal of Bids. After bids are opened, they must be irrevocable for the period specified in the invitation for bids, except as provided for bids in Section 2.52.310 (Competitive sealed bids). If a bidder is permitted to withdraw its bid or proposal before award, or is excluded from competition before award, no action will be had against the bidder or the bid security.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

(a) Requirements.

(1) When a construction, design-build, design-build-operate-maintain, or design-build-finance-operate-maintain contract is awarded in excess of the amount set forth in California Civil Code 3247, the following bonds or security must be delivered to the City and will become binding on the parties upon the execution of the contract:

(2) A performance bond satisfactory to the City, executed by a surety company authorized to do business in this state or otherwise secured in a manner satisfactory to the City, in an amount equal to 100 percent of the portion of the contract price that does not include the cost of operation, maintenance, and finance; and

(3) Pursuant to Civil Code Section 3247, a payment bond satisfactory to the City, executed by a surety company authorized to do business in this state or otherwise secured in a manner satisfactory to the City, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of the construction work provided for in the contract.

(b) Reduction of Bond Amounts. Regulations may authorize the Public Works Director to reduce the amount of performance and payment bonds to 50 percent of the amounts established herein.

(c) Authority to Require Additional Bonds. Nothing in this section will be construed to limit the authority of the City to require a performance bond or other security in addition to such bonds, or in circumstances other than specified herein.

(d) Bond Forms and Copies.

(1) Bond Forms. The Office of the City Attorney will promulgate by regulation the form of the bonds required by this section.

(2) Certified Copies of Bonds. Any person may request and obtain from the City a certified copy of a bond upon payment of the cost of reproduction of the bond and postage, if any. A certified copy of a bond will be prima facia evidence of the contents, execution, and delivery of the original.

(e) Errors and Omissions Insurance. Regulations may be promulgated that specify when the Public Works Director requires offerors to provide appropriate errors and omissions insurance to cover architectural and engineering services under the project delivery methods set forth in Section 2.52.920 (Project delivery methods authorized).

(f) Other Forms of Security. Regulations may be promulgated authorizing the Finance Director to require a request for proposals to include one or more of the following forms of security to assure the timely, faithful, and uninterrupted provision of operations and maintenance services procured separately, or as one element of design-build-operate-maintain or design-build-finance-operate-maintain services:

(1) Operations period surety bonds that secure the performance of the contractor's operations and maintenance obligations under the project delivery methods set forth in Section 2.52.920 (Project delivery methods authorized).

(2) Letters of credit in an amount appropriate to cover the costs to the City of preventing infrastructure service interruptions for a period of up to 12 months under the project delivery methods set forth in Section 2.52.920 (Project delivery methods authorized).

(3) Appropriate written guarantees from the contractor, or depending upon the circumstances, from parent corporations, to secure the recovery of re-procurement costs to the City in the event of a default in performance by a contractor.

(g) Contract Clauses and Their Administration. Regulations may be promulgated requiring the inclusion in City contracts providing for adjustments in prices, time of performance, or other contract provisions, covering the following subjects:

(1) The unilateral right of the City to order in writing:

a. Changes in the work within the scope of the contract;

b. Changes in the time of performance of the contract that do not alter the scope of the contract work;

c. Variations occurring between estimated quantities of work in a contract and actual quantities;

d. Suspension of work ordered by the City;

e. Site conditions differing from those indicated in the contract, or ordinarily encountered, except that differing site conditions clauses promulgated by the Public Works Director need not be included in a contract:

(i) When the contract is negotiated;

(ii) When the contractor provides the site or design; or

(iii) When the parties have otherwise agreed with respect to the risk of differing site conditions.

(2) Price Adjustments. Adjustments in price pursuant to clauses promulgated under Subsection (1) of this section will be computed in one or more of the following ways:

a. By agreement on a fixed-price adjustment commencement of the pertinent performance or as soon thereafter as practicable;

b. By unit prices specified in the contract or subsequently agreed upon;

c. By the costs attributable to the events or situations under such clauses with adjustment for profit or fee, all as specified in the contract or subsequently agreed upon;

d. In such other manner as the contracting parties may mutually agree; or

e. In the absence of agreement by the parties, by a unilateral determination by the City of the costs attributable to the events or situations under such clauses with adjustment of profit or fee, all as computed by the City in accordance with the provisions of Article VII (Legal and Contractual Remedies).

(3) A contractor may be required to submit cost or pricing data if any adjustment in contract price is subject to the provisions of Section 2.52.360 (Substantiation of offered prices).

(4) Additional Contract Clauses.

a. Regulations may be promulgated requiring the inclusion of clauses in City small construction contracts to provide for appropriate remedies and covering the following subjects:

b. Liquidated damages as appropriate;

c. Specified excuses for delay or nonperformance;

d. Termination of the contract for default; or

e. Termination of the contract in whole or in part for the convenience of the City.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

(a) Every contract modification, change order, or contract priced adjustment under a construction contract with the City in excess of $50,000.00, will be subject to prior written certification by the Finance Director of the City or the officer responsible for funding the project or the contract, or other official responsible for monitoring and reporting upon the status of the costs of the total project budget or contract budget, as to the effect of the contract modification, change order, or adjustment in contract price on the total project budget or the total contract budget.

(b) In the event that the certification of the Finance Director or other responsible official discloses a resulting increase in the total project budget and/or the total contract budget, the Public Works Director will not execute or make such contract modification, change order, or adjustment in contract price unless sufficient funds are available therefore, or the scope of the project or contract is adjusted so as to permit the degree of completion that is feasible within the total project budget and/or total contract budget as it existed prior to the contract modification, change order, or adjustment in contract price under consideration; provided, however, that with respect to the validity, as to the contractor, of any executed contract modification, change order, or adjustment in contract price which the contractor has reasonably relied upon, it will be presumed that there has been compliance with the provisions of this section.

(Ordinance No. 38-03 N.S.; Ord. No. 14-20 N.S., § I, 6-30-2020)

Editor's note— Ord. No. 14-20 N.S., § I, adopted June 30, 2020, repealed § 2.52.995, which pertained to exemption for wastewater and stormwater facilities and derived from Ord. No. 28-18 N.S., § I, adopted Nov. 20, 2018.