Victorville Municipal Code Art. I General

The purpose of this chapter is to:

(1) Provide the authority and procedural requirements for city officers to enter into contracts;

(2) Establish efficient procedures for the purchase and procurement of supplies and equipment and/or general and consultant/professional services at the lowest possible cost commensurate with the quality needed; to exercise positive financial control over purchases; to clearly define authority for the purchasing function; and to assure the quality of purchases;

(3) Create rules and regulations governing the procurement of public works project construction contracts in accordance with the city's charter powers over its municipal affairs; and

(4) Maintain the goals of competitive solicitations providing best value to the city:

(A) To ensure adequate, fair and open competition;

(B) To give all bidders an opportunity to compete; and

(C) To invite bidders to offer the best product or service.

(Ord. No. 2381, § 2, 9-18-18)

(a) The provisions of this chapter shall apply to purchases and procurements made by the city, its departments and divisions, VMUS, and the Southern California Logistics Airport Authority ("SCLAA"). When the SCLAA is utilizing the procurement provisions of this chapter, the following terms shall have the following meanings:

(1) "City" shall be deemed to mean the SCLAA;

(2) "Council" or "city council" shall be deemed to mean the SCLAA Board of Directors;

(3) "Mayor" shall be deemed to mean to the SCLAA Chairman;

(4) "City manager" shall be deemed to mean the SCLAA Executive Director.

(b) The Victorville Water District ("VWD"), although a subsidiary district of the city, retains the statutory identity and powers of a county water district. Where permitted by the county water district law (Cal. Gov. Code § 30000 et seq.), this chapter, and other applicable laws; the VWD may vary from the procedures and rules for purchases and procurements set forth in this chapter. Variances may occur only upon recommendation of the city manager (when acting in his ex officio capacity as the VWD General Manager) and city council approval (when acting in its ex officio capacity as the VWD Board). When the VWD is utilizing the procurement provisions of this chapter, the following terms shall have the following meanings:

(1) "City" shall be deemed to mean the VWD;

(2) "Council" or "city council" shall be deemed to mean the VWD Board of Directors;

(3) "Mayor" shall be deemed to mean to the VWD Chairman;

(4) "City manager" shall be deemed to mean the VWD General Manager.

(Ord. No. 2381, § 2, 9-18-18)

Certain types of non-discretionary purchases/payments are not readily adaptable to the open market and competitive selection process. Except where otherwise required by federal law or by reason of the source of funding for the project, non-discretionary purchases are exempt from the bidding and solicitation requirements set forth in articles III, IV and V of this chapter. Examples of non-discretionary purchases include, but are not limited to:

(1) Bank charges and fees;

(2) Debt Service payments;

(3) Insurance premiums;

(4) Memberships, dues, and subscriptions;

(5) Reimbursement of expenses;

(6) Newspaper advertisements and notices;

(7) Utility service provider payments, utility connection and/or installation charges required to ensure the continued daily operation of the city;

(8) California Independent System Operator (CAISO) fees and charges; and

(9) Franchises awarded by the city council or governed by the provisions of the California Public Utilities Code or other statute of the state of California.

(Ord. No. 2381, § 2, 9-18-18)

Any dollar amounts set forth in this chapter which trigger bidding thresholds or determine the award and signature authority for contracts may be amended from time to time by resolution or ordinance of the city council.

(Ord. No. 2381, § 2, 9-18-18)

(a) The city shall not split any project, work, service or purchase into small projects, works, services or purchases for the purpose of avoiding any bidding or contracting requirements of this Code.

(b) Every person who willfully and knowingly violates the procurement guidelines for the purpose of evading the competitive bidding requirements outlined in this chapter is guilty of a misdemeanor.

(Ord. No. 2381, § 2, 9-18-18)

City council approval is required for all contracts unless otherwise specified in this chapter, this code, or the charter.

(Ord. No. 2381, § 2, 9-18-18)

All contracts shall conform to the procedural requirements set forth in this section unless otherwise specified in this chapter, this Code or the charter.

(1) All contracts must be in writing and be signed in the name of the city. When the authority for the award of a contract rests with the city council, and the city council has not by ordinance, resolution, or specific council action expressly authorized execution by the city manager or other city official, such contract shall be executed by the mayor (or the mayor pro tem in the mayor's absence). When so authorized by the provisions of this chapter, this Code or a duly adopted ordinance, resolution, or action of the city council, the city manager or his/her properly designated designees may execute contracts.

(2) Contracts must include appropriate insurance and indemnification provisions and be reviewed by the city's risk manager prior to execution.

(3) All contracts must be approved as to form by the city attorney prior to execution.

(4) A signed original of each contract entered into by the city must be filed with the office of the city clerk. When electronic or digital signatures are authorized for contracts in accordance with the provisions of chapter 2.26 of this Code, and any written policy or administrative regulation promulgated by the city manager or his/her designee pursuant thereto, such electronically or digitally signed contract shall serve as the original.

(Ord. No. 2381, § 2, 9-18-18; Ord. No. 2413, § 3, 12-1-20)

(a) When required. The city manager shall have the authority to require bid security, payment (labor and materials) and performance bonds, as well as specific types and amounts of insurance coverage in connection with all types of contracts to the extent required by this chapter, this code or upon a determination of the city manager that it is in the best interest of the city to do so.

(b) Bid security. If required by a notice inviting bids or the provisions of this chapter, bid security shall be submitted with the bid and shall be in the form of a certified check, cashier's check or surety bond. If a bidder fails to submit the required bid security with the bid, the bid shall be deemed nonresponsive.

(1) After bids are opened, bid security is irrevocable for the period specified in the notice inviting bids. If the successful bidder fails to execute a contract within ten days after the date of the award of the contract, or as otherwise specified in any notice of award or notice to proceed, the total amount of the bid security shall be forfeited to the city (unless such delay in execution is caused by the city). The bid security of an unsuccessful bidder shall be returned to the bidder no later than sixty calendar days from the date of contract award.

(2) Bids for public works projects subject to the informal or formal bidding procedures set forth in Sections 2.28.200 and 2.28.210 or the provisions of the Uniform Public Construction Cost Accounting Act shall require the submission of bid security in an amount equal to at least ten percent of the bid. For public works project contracts let under the provisions of section 2.28.190 or 2.28.270, and contracts for supplies and equipment and general or consultant/professional services, the city manager is authorized to determine if bid security is needed on a case-by-case basis.

(c) Payment and performance security. Notices inviting bids for public works projects subject to the informal or formal bidding procedures set forth in sections 2.28.200 and 2.28.210 shall require the submission of payment and performance bonds, each in an amount equal to one hundred percent of the contract price at the time the contract is executed.

(1) Public works project contracts let under the provisions of section 2.28.270 or 2.28.230 shall also require the submission of payment and performance bonds, each in an amount equal to one hundred percent of the contract price at the time the contract is executed, unless the city council determines otherwise at the time it determines a project qualifies for design/build or a bidding exception.

(2) Payment and performance bonds for public works projects shall be extended in the full amount of the contract for a one-year warranty period beyond the date of acceptance of the work by the city.

(3) For public works project contracts let under the provisions of section 2.28.190, and contracts for supplies and equipment and general or consultant/professional services, the city manager is authorized to determine if payment and/or performance security is needed on a case-by-case basis.

(d) Admitted surety required. All bid, performance and payment bonds required by this chapter or this code must be issued by an "admitted surety" (an insurance organization authorized by the insurance commissioner to transact surety insurance in the state of California).

(e) Form of bonds. The only bonds acceptable to the city shall be those executed on forms approved by the city attorney and as specified in the invitation/solicitation for bids or proposals.

(f) Insurance. The city's risk manager shall determine insurance requirements. Successful bidders shall be required to obtain and maintain such policies and amounts of insurance as specified in the bid solicitation or contract documents, including without limitation, general liability, automobile liability, workers' compensation, professional liability (errors and omissions), environmental liability and course of construction. The successful bidder or proposer shall submit certificates of insurance and endorsement forms, as applicable, as evidence that it has the type and amount of insurance coverage required by the bid or proposal documents, prior to beginning any work or project. Such evidence shall be submitted to the city manager promptly upon request and shall be issued by an admitted insurer authorized to operate in the state of California and otherwise acceptable to the city. The required policies shall also be endorsed to name the city, its officers, agents and employees as additional insureds.

(Ord. No. 2381, § 2, 9-18-18)

(a) For purposes of evaluating whether a bidder is the "best value bidder" pursuant to this chapter, the city council or the city manager, as applicable, shall take into consideration all of the following factors which are applicable to any bid:

(1) Price;

(2) The bidder's ability, capacity and skills to provide the goods and/or services in accordance with bid specifications;

(3) The bidder's ability to provide the goods and/or services promptly, or within the time specified, without delay or interference;

(4) The bidder's equipment, facilities, location and resource capacity to provide the goods and/or services;

(5) The bidder's ability to provide future maintenance, repair, parts and service for the use of the goods purchased or facility constructed, if appropriate;

(6) The bidder's favorable record of performance under prior contracts with the city (if any) and other purchasers where such bidder has previously been awarded such contracts;

(7) The bidder's favorable record of compliance with laws, regulations, guidelines and orders governing prior or existing contracts performed by the bidder, if applicable;

(8) The bidder's experience, integrity, judgment, reputation and financial resources enabling it to perform the work according to the specifications and terms of the solicitation and the city's contractual requirements;

(9) The bidder's demonstration of the quality and performance of the supplies to be purchased or services to be provided;

(10) The number and scope of any conditions/limitations attached to the bidder's bid; and

(11) Any other relevant factor(s) which demonstrate the value of the bid and furthers best interests of the city in procuring the supplies or services sought.

(b) The city council or city manager, as applicable, shall have absolute discretion in determining the applicability and relative weight of any or all of the factors set forth in this section and are not required to award a contract to the lowest monetary bidder.

(Ord. No. 2381, § 2, 9-18-18)

When it is in the best interests of the city to do so, the city manager and/or the city council, as applicable, shall have the discretion to waive any informalities or minor irregularities in any bid process described in this chapter.

(Ord. No. 2381, § 2, 9-18-18)

For the purposes of this chapter, the following definitions shall apply:

(1) "Best value bidder" means the bidder who represents the best value to the city as determined under section 2.28.040 of this chapter.

(2) "Change order" means a change or addendum to an executed contract.

(3) "City manager" means the city manager of the city or such designee or designees as he/she shall authorize in writing to act on his/her behalf in accordance with the limitations set forth in this definition and this chapter. The city manager serves ex officio as the SCLAA Executive Director. Unless otherwise specified by ordinance or resolution of the city council, the city manager may only delegate his/her authority to award and/or execute contracts/change orders to a deputy city manager or city department heads/directors, and with respect to contracts, any such delegation shall not exceed ten thousand dollars per single transaction per fiscal year, unless the city manager provides specific additional written authorization up to a limit of fifty thousand dollars. The city manager may not delegate his/her authority to declare an emergency, except that in the event of the absence or disability of the city manager, a deputy city manager may declare an emergency in his/her stead.

(4) "Consultant/professional services" means services which involve the exercise of professional discretion and independent judgment based on an advanced or specialized knowledge, expertise or training gained by formal studies or experience. Such services include, but are not limited to, those provided by appraisers, architects, attorneys, engineers, instructors, insurance advisors, financial advisors, physicians and other specialized consultants. The procurement of professional services is governed by section 2.28.280.

(5) "Contract" or "contracts" mean formal written agreements to do or not to do a certain thing. "Contract" or "contracts" and "agreement" or "agreements" are synonymous.

(6) "Emergency" means a sudden occurrence that poses a threat to the public health, safety or welfare, and/or the property of the city requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services. Determination of whether an emergency exists shall be within the discretion of the city council or the city manager as set forth elsewhere in this chapter.

(7) "Deputy city manager" means the deputy city manager for the city or such designees as he/she shall authorize in writing to act on his/her behalf.

(8) "General services" means and includes any work performed or services rendered by an independent contractor, with or without the furnishing of materials, including, but not limited to, the following:

(A) Maintenance or nonstructural repair of city buildings, structures or improvements which does not require engineering plans, specifications or design, including, but not limited to, unscheduled replacement of broken window panes, fire extinguisher maintenance, minor roof repairs, plumbing, elevator maintenance, custodial services and pest control;

(B) Repair, modification and maintenance of city equipment and software;

(C) Cleaning, analysis, testing, moving, removal or disposal (other than by sale) of city supplies and equipment;

(D) Care or maintenance of public grounds, including, but not limited to, trees, shrubbery, flowers, lawns;

(E) Providing temporary personnel services;

(F) Providing other miscellaneous services to facilitate city operations;

(G) Performing repair, demolition or other work required to abate nuisances under this code;

(H) Licensing software;

(I) Leasing or rental of equipment (personal property) for use by the city;

(J) A maintenance agreement for equipment owned or leased by the city;

(K) Abatement or cleanup of hazardous materials; provided however that, any time such abatement or cleanup involves preparation of an asbestos or other hazardous materials report, a consultant/professional services agreement shall also be required.

"General services" does not include work defined as consultant/professional services under subsection 2.28.050(4) of this section, nor work defined as a "public project" or a "public works project" in paragraphs (A) through (C) of subsection 2.28.050(9) of this section.

(9) "Public project" or "public works project" means any of the following:

(A) Construction, reconstruction, erection, alteration, renovation, improvement, demolition, and repair work involving any publicly owned, leased, or operated facility.

(B) Major painting or repainting of any publicly owned, leased, or operated facility.

(C) In the case of a publicly owned utility system, "public project" shall include only the construction, erection, improvement, or repair of dams, reservoirs, powerplants, and electrical transmission lines of two hundred thirty thousand volts and higher.

(D) The following items of "maintenance work" may, in the sole discretion of the city, be classified as either "general services" or a "public works project" for purposes of procurement under this chapter:

(1) Routine, recurring, and usual work for the preservation or protection of any publicly owned or publicly operated facility for its intended purposes.

(2) Minor repainting.

(3) Resurfacing of streets and highways at less than one inch.

(4) Landscape maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems.

(5) Work performed to keep, operate, and maintain publicly owned water, power, or waste disposal systems, including, but not limited to, dams, reservoirs, powerplants, and electrical transmission lines of two hundred thirty thousand volts and higher.

(E) For purposes of this definition, "facility" means any plant, building, structure, ground facility, utility system, subject to the limitation found in paragraph (C) of this subsection, real property, streets and highways, or other public work improvement.

(10) "Responsive bid" means a bid submitted by a bidder which conforms in all material respects to the requirements of any notice inviting quotations, informal bids or formal bids, as described in this chapter.

(11) "Responsible bid" or "responsible offer" means a bid/offer submitted by a bidder or offeror who has demonstrated the attributes of trustworthiness, quality, fitness, capacity and experience to perform a contract, in the sole determination of the city.

(12) "Supplies and equipment" means and includes all supplies, materials, goods, commodities (excluding electricity and natural gas), and equipment purchased on behalf of the city, except for supplies or materials furnished for a public project.

(13) "Technology product" means hardware, software, or communications equipment; or related equipment or goods which incorporate any such items.

(14) "Negotiated contract" means a contract awarded on the basis of a direct agreement with a contractor, vendor, consultant or other service provider without the requirement of a competitive bidding or request for proposals/qualifications process. However, a negotiated contract can and often should be awarded after negotiations with parties having submitted responses to requests for proposals or qualifications. See section 2.28.110.

(15) "Energy purchases" means any contract with a private or public supplier of commodities and services for the purchase or sale-incidental-to-purchase of electricity or natural gas and related energy products and services, including, without limitation, unbundled renewable energy credits ("RECs"), scheduling coordinator services, regulatory compliance instruments, and resource adequacy. "Energy purchases" also include master or enabling agreements containing general terms and conditions that provide for the execution of one or more purchase or sale-incidental-to-purchase transactions under the terms of a standard form contract and any exhibit, addendum or confirmation.

(16) "VMUS" means Victorville Municipal Utility Services, the city's municipal electricity and gas utility.

(17) "Sole source purchase" means unique services, and/or supplies and equipment that can be obtained from only one vendor, or one distributor authorized to sell in this area, with singular characteristics or performance capabilities or which have specific compatibility components with existing city products, rendering bidding or quotation requirements futile or meaningless. All sole source purchases shall be supported by written documentation.

(Ord. No. 2381, § 2, 9-18-18; Ord. No. 2429, § 2, 5-17-22)