[HISTORY: Adopted by the City Council of the City of Seward
as indicated in article histories. Amendments noted where applicable.]
[Adopted as Ch. 1, Art. 10, § 1004, of the 1976
Code; amended 10-5-1982 by Ord.
No. 29-82; 9-20-1983 by Ord. No. 23-83; 9-18-1984 by Ord. No. 34-84; 9-16-1986 by Ord. No. 13-86; 11-2-1993 by Ord. No. 44-93]
(Neb. RS 18-305 through 18-312, 49-14, 103.01 through 49-14,
103.03, 70-624.04)
As used in this article, the following terms shall have the
meanings indicated:
Unless specified otherwise, volunteer firefighters and ambulance
drivers shall not be considered officers for purposes of this article,
with respect to their duties as firefighters and ambulance drivers.
No officer of the municipality shall be permitted to have an
interest in any contract to which the municipality is a party. The
existence of such an interest in any contract renders the contract
voidable by decree of a court of competent jurisdiction as to any
person who entered into the contract or took assignment thereof with
actual knowledge of the prohibited conflict.
A.
An action
to have a contract declared void under this section may be brought
by the municipality or by any resident thereof and must be brought
within one year after the contract is signed or assigned. Any such
decree may provide for the reimbursement of any person for the reasonable
value of all money, goods, material, labor, or services furnished
under the contract, to the extent that the municipality has benefitted
thereby.
B.
The prohibition
in this section shall apply only when the officer or his or her parent,
spouse, or child 1) has a business with which the individual is associated
or business association, which shall mean a business: a) in which
the individual is a partner, director, or officer or b) in which the
individual or a member of the individual's immediate family is a stockholder
of a closed corporation stock worth $1,000 or more at fair market
value or which represents more than five-percent equity interest,
or is a stockholder of publicly traded stock worth $10,000 or more
at fair market value or which represents more than ten-percent equity
interest or 2) will receive a direct pecuniary fee or commission as
a result of the contract; provided, however, if such officer is an
employee of the business involved in the contract and has no ownership
interest or shall not receive a pecuniary fee, such officer shall
not be deemed to have an interest within the meaning of this section.
The provisions of this article shall not apply if the contract
is an agenda item approved at a board meeting and the interested officer:
A.
Makes a declaration on the record to the governmental body responsible
for approving the contract regarding the nature and extent of his
or her interest, prior to official consideration of the contract;
B.
Does not vote on the matters of granting the contract, making payments
pursuant to the contract, or accepting performance of work under the
contract, or similar matters relating to the contract, except that
if the number of members of the board declaring an interest in the
contract would prevent the board, with all members present, from securing
a quorum on the issue, then all members may vote on the matter; and
C.
Does not act for the municipality as to inspection or performance
under the contract in which he or she has an interest.
The receiving of deposits, cashing of checks, and buying and
selling of warrants and bonds of indebtedness of any municipality
by a financial institution shall not be considered a contract under
the provisions of this article. The ownership of less than 5% of the
outstanding shares of a corporation shall not constitute an interest
within the meaning of this article.
Notwithstanding the provisions of § 100-1.2 above, if an officer's parent, spouse or child is an employee of the municipality, the officer may vote on all issues of the contract which are generally applicable to all employees or all employees within a classification and do not single out his or her parent, spouse, or child for special action. If an officer has the power to employ personnel and he or she hires his or her parent, spouse, or child, such officer shall disclose the hiring pursuant to § 100-1.6 below, except that if the parent, spouse, or child is already employed in the position at the time the officer takes office and such position does not change, no disclosure need be made.[1]
A.
The Municipal Clerk shall maintain, separately from other records, a ledger containing the information listed in Subsections A(1) through (5) of this section about every contract entered into by the municipality in which disclosure is made as provided in § 100-1.2 above. Such information shall be kept in the ledger for five years from the date of the officer's last day in office and shall include the:
B.
The information
supplied relative to the contract shall be provided to the Clerk not
later than 10 days after the contract has been signed by both parties.
The ledger kept by the Clerk shall be available for public inspection
during the normal working hours of the office in which it is kept.
An open account established for the benefit of any municipality
or entity thereof, with a business in which an officer has an interest,
shall be deemed a contract subject to the provisions of this article.
The statement required to be filed pursuant to this article shall
be filed within 10 days after such account is opened. Thereafter,
the Clerk shall maintain a running account of all amounts purchased
on the open account. Purchases made from petty cash or a petty cash
fund shall not be subject to the provisions of this article.
Any officer who knowingly violates this article shall be guilty
of a Class III misdemeanor. Any officer who negligently violates this
article shall be guilty of a Class V misdemeanor.
Contracts involving $100 or less in which an officer of the
municipality may have an interest are hereby exempted from the provisions
of this article.
No officer, including volunteer firefighters and ambulance drivers,
shall receive any pay or perquisites from the municipality other than
his or her salary. The governing body shall not pay or appropriate
any money or other valuable thing to pay a person who is not an officer
for the performance of any act, service, or duty which shall come
within the proper scope of the duties of any officer of the municipality.
(Neb. RS 17-611)
[Adopted 1-3-2023 by Ord. No. 2023-1]
The purpose of the below recommended guidelines and procedures
is to authorize the City, through the Political Subdivisions Construction
Alternatives Act (Sections 13-2901 through 13-2914 of the Nebraska
Revised Statutes), to enter into a design-build contract which is
subject to qualification-based selection or a construction management
at risk contract for public contracts.
For purposes of this article, the following are the definitions
outlined in the Political Subdivisions Construction Alternatives Act.
A contract by which a construction manager:
The legal entity which proposes to enter into a construction
management at risk contract.
A contract subject to qualification-based selection of the
design-builder to furnish:
The legal entity which proposes to enter into a design-build
contract by qualification-based selection.
A statement indicating interest to enter into a design-build
or construction management at risk contract for a project.
Any person licensed or any organization issued a certificate
of authorization to practice architecture or engineering who is selected
to assist in the development of project performance criteria, requests
for proposals, evaluations of proposals, evaluation of construction
under a design-build contract to determine adherence to performance
criteria, and any additional requested services to represent the City's
interest in relation to a project. The performance-criteria developer
is ineligible to be included as a provider of any services in a proposal
for any project on which he/she/it has acted as performance-criteria
developer and is not employed by or does not have a financial or other
interest in a design-builder or construction manager who will submit
a proposal.
The performance requirements of the project suitable to allow
the design-builder to make a proposal. Performance requirements include
the following:
Capacity;
Durability;
Standards;
Ingress and egress requirements;
Description of the site;
Surveys;
Soil and environmental information concerning the site;
Interior space requirements;
Material quality standards;
Design and construction schedules;
Site development requirements;
Provisions for utilities and stormwater retention and disposal;
Parking requirements;
Applicable governmental code requirements; and
Other criteria for the intended use of the project.
An offer in response to a request for proposals a) by a design-builder
to enter into a design-build contract or b) by a construction manager
to enter into a construction management at risk contract.
The process of selecting a design-builder based first on
qualifications of the design-builder and then on the design-builder's
proposed approach to the design and construction of the project.
The documentation by which the City solicits proposals.
The documentation or publication by which the City solicits
letters of interest.
The City Council shall adopt a resolution selecting the design-build
contract or construction management at risk contract delivery system
prior to proceeding with any of the steps involved with solicitation
or execution of any construction contract by the City. The resolution
requires the affirmative vote of at least 2/3 of the City Council.
For a project authorized under Subsection (3) of Section 13-2914 of
the Nebraska Revised Statutes, the resolution shall include a statement
that the political subdivision has made a determination that the design-build
contract or construction management at risk contract delivery system
is in the public interest based, at a minimum, on one of the following
criteria: a) savings in cost or time or b) requirement of specialized
or complex construction methods suitable for the design-build contract
or construction management at risk contract delivery system.
A.
Design-build contract.
(1)
Letters of interest.
(a)
The City shall prepare a request for letters of interest for
design-build proposals. Requests shall describe the project in sufficient
detail to permit the design-builder to submit a letter of interest.
The details should include the items listed under the project performance
criteria under the Definitions section of this article.
(b)
Requests for letters of interest shall be published in a newspaper
of general circulation within the City's area at least 30 days'
prior to the receipt of letters of interest deadline. Requests for
letters of interest should also be sent via first-class mail to any
design-builder upon request.
(c)
Letters of interest shall be reviewed by the City in consultation
with the performance-criteria developer. The City shall select prospective
design-builders in accordance with the procedures and standards adopted
by the City pursuant to Section 13-2905 of the Nebraska Revised Statutes.
(d)
At least three prospective design-builders shall be selected,
except that if only two design-builders have submitted letters of
interest, the City shall select at least two. Selected design-builders
shall then be considered prequalified and eligible to receive a request
for proposals.
(2)
Request for proposals.
(a)
The City shall prepare a request for proposals for each design-build
contract. Notice of the request for proposals shall be published in
a newspaper of general circulation within the City's service
area at least 30 days' prior to the deadline for receipt and
opening of proposals.
(b)
The request for proposals shall contain, at a minimum, the following
elements:
[1]
That the City Council will execute the design-build contract.
[2]
The policies adopted by the City Council to be used when executing
a design-build contract.
[3]
The proposed terms and conditions of the design-build contract,
including any terms and conditions which are subject to further negotiation.
The general terms and conditions shall be consistent with nationally
recognized model general terms and conditions which are standard in
the design and construction industry in Nebraska. The terms and conditions
may set forth an initial determination of the manner by which the
design-builder selects any subcontractor and may require that any
work subcontracted be awarded by competitive bidding.
[4]
A project statement which contains information about the scope
and nature of the project.
[5]
The project performance criteria.
[6]
The budget parameters for the project.
[7]
Any bonds and insurance required by law or as may be additionally
required by the City.
[8]
The criteria for evaluation of proposals and the relative weight
of each criterion.
[9]
A requirement that the design-builder provide a written statement
of the design-builder's proposed approach to the design and construction
of the project, which may include graphic materials illustrating the
proposed approach to design and construction but shall not include
price proposals.
[10]
A requirement that the design-builder agree to
the following conditions:
[a]
An architect or engineer licensed to practice in
Nebraska will participate substantially in those aspects of the offering
which involve architectural or engineering services;
[b]
At the time of the design-build offering, the design
builder will furnish to the City Council a written statement identifying
the architect or engineer who will perform the architectural or engineering
work for the design-build project;
[c]
The architect or engineer engaged by the design-builder
to perform the architectural or engineering work with respect to the
design-build project will have direct supervision of such work and
may not be removed by the design-builder prior to the completion of
the project without the written consent of the City Council;
[d]
A design-builder offering design-build services
with its own employees who are design professionals licensed to practice
in Nebraska will comply with the Engineers and Architects Regulation
Act[1] by procuring a certificate of authorization to practice
architecture or engineering and will submit proof of sufficient professional
liability insurance; and
[1]
Editor's Note: See Neb. RS 81-3401 et seq.
[e]
The rendering of architectural or engineering services
by a licensed architect or engineer employed by the design-builder
will conform to the Engineers and Architects Regulation Act and rules
and regulations adopted under the Act; and
[f]
Other information which the City chooses to require.
(c)
Proposal evaluation.
[1]
The request for proposals shall be sent only to the prequalified
design-builders selected. Design-builders shall submit proposals as
required by the request for proposals.
[2]
The City may only proceed to negotiate and enter into a design-build
contract if there are at least two proposals from prequalified design-builders.
[3]
Proposals shall be sealed and shall not be opened until expiration
of the time established for making proposals as set forth in the request
for proposals. Proposals may be withdrawn at any time prior to acceptance.
The City shall have the right to reject any and all proposals except
for the purpose of evading the provisions and policies of the Political
Subdivisions Construction Alternatives Act.[2] The City may thereafter solicit new proposals using the
same or a different project performance criteria.
[2]
Editor's Note: See Neb. RS 13-2901 et seq.
[4]
The City shall refer the proposals for recommendation to the
selection committee. The selection committee shall be at least five
persons designated by the City. Members of the selection committee
shall include:
[a]
Members of the City Council;
[b]
Members of the administration or staff of the City;
[c]
The performance-criteria developer;
[d]
Any person having special expertise relevant to
selection of a design-builder under the Political Subdivisions Construction
Alternatives Act; and
[e]
A resident of the City's service region other
than any individual listed above.
[5]
Any selection committee member designated under Subsection A(2)(c)[4][d]
or [e] above shall not be employed by or have a financial or other
interest in a design-builder who has a proposal being evaluated and
shall not be employed by the City or the performance-criteria developer.
[6]
The City shall rank in order of preference the design-builders
pursuant to the criteria in the request for proposals and taking into
considerations the recommendation of the selection committee.
[7]
The City and the selection committee shall evaluate proposals
taking into consideration the criteria listed below with the maximum
percentage of total points for evaluation which may be assigned to
each criterion as indicated immediately following the criterion.
[a]
The financial resources of the design-builder to
complete the project, 10%;
[b]
The ability of the proposed personnel of the design-builder
to perform, 30%;
[c]
The character, integrity, reputation, judgment,
experience, and efficiency of the design-builder, 30%;
[d]
The quality of performance on previous projects,
30%;
[e]
The ability of the design-builder to perform within
the time specified, 30%;
[f]
The previous and existing compliance of the design-builder
with laws relating to the contract, 10%; and
[g]
Other information as may be secured having a bearing
on the selection, 20%.
[8]
The records of the selection committee in evaluating proposals
and making recommendations shall be considered public records.
[9]
The City may attempt to negotiate a design-build contract with
the highest ranked design-builder selected by the City and may enter
into a design-build contract after negotiations. The negotiations
shall include a final determination of the manner by which the design-builder
selects a subcontractor.
[10]
If the City is unable to negotiate a satisfactory
design-build contract with the highest ranked design-builder, the
City may terminate negotiations with that design-builder. The City
may then undertake negotiations with the second highest ranked design-builder
and may enter into a design-build contract after negotiations. If
the City is unable to negotiate a satisfactory contract with the second
highest ranked design-builder, the City may undertake negotiations
with the third highest ranked design-builder, if any, and may enter
into a design-build contract after negotiations.
[11]
If the City is unable to negotiate a satisfactory
contract with any of the ranked design-builders, the City may either
revise the request for proposals and solicit new proposals or cancel
the design-build process.
[12]
A design-build contract may be conditioned upon
later refinements in scope and price and may permit the City in agreement
with the design-builder to make changes in the project without invalidating
the contract. Later refinements shall not exceed the scope of the
project statement contained in the request for proposals.
[13]
The City shall not use a design-build contract
for a project, in whole or in part, for road, street, or highway construction.
B.
Construction management at risk contract.
(2)
Request for proposals.
(a)
The City shall prepare a request for proposals for each construction
management at risk contract. Notice of the request for proposals shall
be published in a newspaper of general circulation within the City's
service area at least 30 days' prior to the deadline for receipt
and opening of proposals.
(b)
The request for proposals shall contain, at a minimum, the following
elements.
[1]
That the City Council will execute the contract.
[2]
The policies adopted by the City Council to be used when executing
a construction management at risk contract.
[3]
The proposed terms and conditions of the contract, including
any terms and conditions which are subject to further negotiation.
The general terms and conditions shall be consistent with nationally
recognized model general terms and conditions which are standard in
the design and construction industry in Nebraska. The terms and conditions
may set forth an initial determination of the manner by which the
construction manager selects any subcontractor and may require that
any work subcontracted be awarded by competitive bidding.
[4]
Any bonds and insurance required by law or as may be additionally
required by the City.
[5]
General information about the project which will assist the
City in its selection of the construction manager, including a project
statement which contains information about the scope and nature of
the project, the project site, the schedule and the estimated budget.
[6]
The criteria for evaluation of proposals and the relative weight
of each criterion.
[7]
A description of any other information which the City chooses
to require.
(3)
Proposal evaluation.
(a)
Proposals shall be sealed and shall not be opened until expiration
of the time established for making proposals as set forth in the request
for proposals.
(b)
The City shall refer the proposals for recommendation to the
selection committee. The selection committee shall be at least five
persons designated by the City. Members of the selection committee
shall include:
[1]
Members of the City Council;
[2]
Members of the administration or staff of the City;
[3]
The City's Architect or Engineer;
[4]
Any person having special expertise relevant to selection of
a construction manager under the Political Subdivisions Construction
Alternatives Act; and
[5]
A resident of the City's service region other than any
individual listed above.
(c)
Any selection committee member designated under Subsection B(3)(b)[4] or [5] above shall not be employed by or have a financial or other interest in a construction manager who has a proposal being evaluated and shall not be employed by the City or the performance-criteria developer.
(d)
The City shall evaluate and rank each proposal on the basis
of best meeting the criteria in the request for proposals and taking
into consideration the recommendation of the selection committee.
(e)
The City and the selection committee shall evaluate proposals
taking into consideration the criteria listed below with the maximum
percentage of total points for evaluation which may be assigned to
each criterion as indicated immediately following the criterion.
[1]
The financial resources of the construction manager to complete
the project, 10%;
[2]
The ability of the proposed personnel of the construction manager
to perform, 30%;
[3]
The character, integrity, reputation, judgment, experience,
and efficiency of the construction manager, 30%;
[4]
The quality of performance on previous projects, 30%;
[5]
The ability of the construction manager to perform within the
time specified, 30%;
[6]
The previous and existing compliance of the construction manager
with laws relating to the contract, 10%; and
[7]
Other information as may be secured having a bearing on the
selection, 20%.
(f)
The records of the selection committee in evaluating proposals
and making recommendations shall be considered public records.
(g)
The City may attempt to negotiate a construction management
at risk contract with the highest ranked construction manager and
may enter into a construction management at risk contract after negotiations.
The negotiations shall include a final determination of the manner
by which the construction manager selects a subcontractor.
(h)
If the City is unable to negotiate a satisfactory contract with
the highest ranked construction manager, the City may terminate negotiations
with that construction manager. The City may then undertake negotiations
with the second highest ranked construction manager and may enter
into a construction management at risk contract after negotiations.
If the City is unable to negotiate a satisfactory contract with the
second highest ranked construction manager, the City may undertake
negotiations with the third highest ranked construction manager, if
any, and may enter into a construction management at risk contract
after negotiations.
(i)
If the City is unable to negotiate a satisfactory contract with
any of the ranked construction managers, the City may either revise
the request for proposals and solicit new proposals or cancel the
construction management at risk process.
(j)
A construction management at risk contract may be conditioned
upon later refinements in scope and price and may permit the City
in agreement with the construction manager to make changes in the
project without invalidating the contract. Later refinements shall
not exceed the scope of the project statement contained in the request
for proposals.
(k)
The City shall not use a construction management at risk contract
for a project, in whole or in part, for road, street, or highway construction.
