The purpose of this chapter is to provide definitions and guidelines and to establish specific procedures to be used to solicit, qualify, evaluate, and select and award construction contracts using alternate public construction project procurement procedures, which may include the design-build method. The intent is to provide alternative and optional procedures for bidding and building construction projects when it is anticipated that an alternative process will reduce project cost, expedite project completion, or provide design features not achievable through the design-bid-build method.
(Ord. 5022 § 2, 2015)
For the purposes of this chapter, the following definitions apply:
"Alternate procedure"
means an alternate public construction project procurement procedure, other than by traditional design-bid-build procurement procedure (i.e., where the city hires a design professional to produce complete plans and specifications, and contractors bid on the construction of the improvements based on those previously approved plans and specifications), by which both the design and construction of a project are procured by one of the following methods in compliance with this chapter.
1. 
Design-build, as defined in this chapter.
2. 
From a design-build entity, as defined in this chapter, which might also include other disciplines including, but not limited to, soils or materials testing and soil remediation, or the provision of products, such as solar energy devices or playground equipment.
3. 
From a construction consultant who is preliminarily selected as the preferred contractor, and where the city establishes any method for obtaining preconstruction services from the construction consultant, including guidelines for the approval of a design of the project in coordination with the construction consultant and the city's previously selected design professionals, or any similar methodology, in any event intended to result in the best value to the city through a guaranteed maximum price from the construction consultant through a design-build contract.
"Best interest of the city"
means an alternate procedure that is projected to meet the interests of the city and objectives of the project which may include reducing the project delivery schedule and total cost of the project while maintaining a high level of quality workmanship and materials.
"Best value"
means value determined by objective criteria, and may include, but is not limited to, price, features, functions, life cycle costs, and other criteria deemed appropriate.
"Competitive negotiation"
means a competitive sealed proposal procurement method that includes, but is not limited to, all of the following requirements:
1. 
Generally describes the services sought to be procured by the city;
2. 
Sets forth minimum criteria for evaluating proposals submitted in response to a request for proposals;
3. 
Generally describes the format and content of proposals to be submitted;
4. 
Provides for negotiation of scope and price; and
5. 
May place emphasis on described factors other than price to be used in evaluating proposals.
"Construction consultant"
means a pre-qualified, licensed, contractor selected by the city as the preferred contractor for a design-build project, who shall be compensated for services incurred in assisting in the design of a project resulting in a design-build contract with the construction consultant as a single entity or a member of a design-build entity.
"Design-build"
means a public construction procurement method in which both the design and construction of a project are procured from a single entity. Design-build includes the utilization of competitive negotiation.
"Design-build contract"
means a contract between the city and a design-build entity or construction consultant to furnish the architecture, engineering, and related services as required for a given public works project, and to furnish the labor, materials and other construction services for the same project. A designbuild contract may be awarded conditioned upon subsequent refinements in scope and price during the development of the design, approval by the city of a guaranteed maximum price for project construction, and may permit the city to make changes in the scope of the public works project without invalidating the design-build contract.
"Design-build entity"
means a partnership, corporation, or other legal entity that is able to provide appropriately licensed contracting, architectural, or engineering services. A design-build entity may include a construction consultant as a design-build entity member.
"Design-build entity member"
includes any person who provides licensed contracting, architectural, or engineering services.
"Design professional"
means a professional that is duly licensed and registered in California, either city staff or an outside consultant, who provides professional design services and/or develops the criteria package that may include, but is not limited to, facility program, design criteria, performance specifications and other project-specific technical material.
"Project"
means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind, including demolitions, and the construction and installation of drainage systems, lighting and signaling systems, sewer and water systems, and park and recreational facilities.
"Qualified list of design-build entities or construction consultants"
means those design-build entities or construction consultants selected based on a competitive selection process and who are determined to be qualified to act as a design-build entity or a construction consultant for the city on any project.
(Ord. 5022 § 2, 2015)
Prior to procuring a design-build contract, the city shall select one of the following methods of prosecution of work:
A. 
Prepare a project-specific request for a proposal setting forth the scope of the project that may include, but is not limited to, the size, type and desired design character of the project and site, and performance specifications. The performance specifications shall describe the quality of construction materials, assemblies, equipment, workmanship, preliminary plans or building layouts, and other information deemed necessary to adequately describe the city's needs. The performance specifications shall be prepared or reviewed and approved by a design professional designated by the city.
B. 
Prepare a project-specific request for a proposal setting forth the scope of the project that may include, but is not limited to, the size, type and desired design character of the project and site, and performance specifications to be distributed exclusively to those teams selected from the qualified list of designbuild entities or construction consultants. The performance specifications shall describe the quality of construction materials, assemblies, and other information deemed necessary to adequately describe the city's needs.
C. 
Select a design-build entity or construction consultant from those teams identified on the qualified list of design-build entities or construction consultants without preparing a formal request for proposals. Prior to an award to a design-build entity or construction consultant pursuant to the qualified list of design-build entities or construction consultants the city manager shall certify to the city council in writing that the most qualified firms have been invited to interview and the selected firm is capable of providing the services and it is in the best interest of the city to proceed in this manner.
D. 
Select a design-build entity or construction consultant as a sole source, if, in advance of the contract, the city manager certifies in writing the sole source status of the provider based on the need to utilize a specified material or methodology in the best interest of the city, which could only be supplied, constructed, or installed by only one contractor or supplier.
(Ord. 5022 § 2, 2015)
The city may establish a qualification and selection process for design-build entities or construction consultants that specifies the qualification criteria, as well as recommends the manner in which the winning entity will be selected. Nothing in this chapter precludes a design-build contract from being awarded to a sole source if, in advance of the contract, the city manager certifies in writing the sole source status of the provider.
(Ord. 5022 § 2, 2015)
At a minimum, the city shall require the following criteria in soliciting proposals from design-build entities or construction consultants:
A. 
Possession of all required licenses, registrations, and credentials in good standing in the state of California that are required to design and construct the project.
B. 
Submission of documentation establishing that the design-build entity members or construction consultant employee(s) or subcontractors have completed, or demonstrated the capability to complete, projects of similar size, scope, building type, or complexity, and that proposed key personnel have sufficient experience and training to competently manage and complete the design and construction of the project in compliance with applicable state and local building codes, including Title 15 of this Code.
C. 
Submission of a proposed project management plan establishing that the design-build entity or construction consultant has the experience, competence and capacity needed to effectively complete the project.
D. 
Submission of evidence establishing the design-build entity or construction consultant has the capacity to obtain all required payment and performance bonding, liability insurance, and errors and omissions insurance, as well as a financial statement demonstrating to the city's satisfaction that the design-build entity or construction consultant has the capacity to complete the project.
E. 
Provision of a declaration that the applying members of the design-build entity or construction consultant has not had a surety company finish work on any project within the past five years.
F. 
Provision of a declaration providing detail for the past five years concerning all of the following:
1. 
Civil or criminal violations of the Occupational Safety and Health Act against any member of the design-build entity or construction consultant;
2. 
Civil or criminal violations of the Contractors' State License Law against any member of the design-build entity or construction consultant;
3. 
Any criminal conviction of, or civil judgment against, any member of the design-build entity or construction consultant of submitting a false or fraudulent claim to a public agency;
4. 
Civil or criminal violations of federal or state law governing the payment of wages, benefits, or personal income tax withholding, or of Federal Insurance Contributions Act (FICA) withholding requirements, state disability insurance withholding, or unemployment insurance payment requirements against any member of the design-build entity or construction consultant. For purposes of this section, only violations by a design-build entity member or construction consultant's employee or subcontractor as an employer shall be deemed applicable, unless it is shown that the design-build entity member or construction consultant's employee or subcontractor, in his or her capacity as an employer, had knowledge of a subcontractor's or employee's violations or failed to comply with the conditions set forth in Section 1770 et seq. of the State California Labor Code;
5. 
Civil or criminal violations of federal or state law against any design-build entity member or construction consultant's employee or subcontractor governing equal opportunity employment, contracting or subcontracting;
6. 
Any construction or design claim or litigation totaling more than $50,000 pending or settled against any member of the design-build entity or construction consultant over the last five years; and
7. 
Any debarment, disqualification or removal from a federal, state, or local government public works project.
G. 
Provision of a declaration by an officer, principal, member, manager, general partner, or other, similar, representative of the design-build entity or construction consultant that the design-build entity or construction consultant will comply with all other provisions of law applicable to the project. The declaration shall state that reasonable diligence has been used by the representative in its preparation and that it is true and complete to the best of the signer's knowledge.
H. 
In the case of a partnership or other association that is not a legal entity, a copy of the agreement creating the partnership or association and specifying that all partners or association members agree to be fully liable for the performance under the design-build contract.
I. 
The information concerning the design-build entity's or construction consultant's qualifications and experience shall be verified under oath by an officer, principal, member, manager, general partner, or other, similar, representative of the design-build entity and each of its design-build entity members or of the construction consultant and each of its employees or subcontractors. It shall be unlawful to submit any declaration under this chapter containing any material matter that is known to be or, after reasonable investigation, should be known to be, false, or omits to make a statement of material matter that the person making the statement knows, or should know to be, false.
(Ord. 5022 § 2, 2015)
The city shall select one of the following methods as the process to be used for the selection of the winning entity:
A. 
A competition based on performance specifications and criteria set forth by the city in the request for proposals, without preliminary designs provided by the city.
1. 
Criteria used in this form of evaluation of proposals may include, but not be limited to, items such as evaluation of references with respect to responsiveness; quality of work; timeliness; overall performance; proposed design approach; life-cycle costs; project features; financial strength; quality; total cost; past performance; business standing; schedule; and operational and functional performance of the facility. An evaluation will be made considering overall quality; capability; resource availability; and financial stability of the design-build entity or construction consultant. However, any criteria and methods used to evaluate proposals shall be limited to those contained in the request for proposals or qualifications.
2. 
Any architectural firms, engineering firms, specialty consultants, or individuals retained by the city to assist in the preparation of the request for proposals shall not be eligible to participate in the competition with any design-build entity or construction consultant.
3. 
Award shall be made to the design-build entity or construction consultant whose proposal is judged as providing best value meeting the interests of the city and meeting the objectives of the project.
B. 
A competition based on program requirements, performance specifications, and a preliminary design or combination thereof set forth by the city in the request for proposals. Limited or preliminary drawings and specifications detailing the requirements of the project may accompany the request for proposals.
1. 
The city shall establish technical criteria and methodology, including price, to evaluate proposals and shall describe the criteria and methodology of evaluation and selection in the request for proposal or qualification design-build entity or construction consultant.
2. 
Except as otherwise provided herein, any architectural firms, engineering firms, specialty consultants, or individuals retained by the city to assist in the preparation of request for proposals shall not be eligible to participate in the competition with any design-build entity or construction consultant; provided, however, that with the city's consent any such agreement between the city and the retained professionals may be assigned, for good and valuable consideration, to the design-build entity as a design-build entity member or to the construction consultant as an employee or subcontractor as applicable.
3. 
Award shall be made to the design-build entity or construction consultant on the basis of the technical criteria and methodology, including price, whose proposal is judged as providing best value in meeting the interests of the city and meeting the objectives of the project.
C. 
A competition based on program requirements and a detailed scope of work, including any preliminary design drawings and specifications set forth by the city in the request for proposals.
1. 
Any architectural firms, engineering firms, specialty consultants, or individuals retained by the city to assist in the preparation of request for proposals shall not be eligible to participate in the competition with any design-build entity or construction consultant.
2. 
Award shall be made on the basis of best value that is also in the best interest of the city.
D. 
A "sole source" award as otherwise allowed by this chapter or title, the city's charter, or any law.
E. 
By competitive negotiation.
(Ord. 5022 § 2, 2015)
A. 
The city recognizes that the design-build entity or construction consultant is charged with performing both design and construction. Because a design-build contract may be awarded prior to the completion of the design, it is often impractical for the design-build entity or construction consultant to list all subcontractors at the time of the award.
B. 
All of the following requirements shall apply to subcontractors licensed by the state that are employed on any alternate procedure projects undertaken pursuant to this chapter.
1. 
The design-build entity or construction consultant in each design-build proposal shall specify the construction trades or types of subcontractors that may be named as members of the design-build entity, or employees or subcontractors of the construction consultant, at the time of award. In selecting the trades that may be identified as members of the design-build entity or construction consultant, the design-build entity or construction consultant shall identify the trades deemed essential in the design considerations of the project. All subcontractors that are listed at the time of award shall be afforded the protection of all applicable laws.
2. 
All subcontracts that were not listed by the design-build entity or construction consultant at the time of award in accordance with subsection (B)(1) of this section shall be performed and awarded by the design-build entity or construction consultant in accordance with a bidding process set forth in the design-build contract.
3. 
In a contract between the design-build entity or construction consultant and a subcontractor, and in a contract between any subcontractor and its subcontractor, the percentage of the retention proceeds withheld may not exceed the percentage specified in the contract between the city and the design-build entity or construction consultant. If the design-build entity or construction consultant provides written notice to any subcontractor who is not a member of the design-build entity or employee or subcontractor of the construction consultant, prior to or at the time that the bid is requested, that a bond may be required and the subcontractor subsequently is unable or refuses to furnish a bond to the design-build entity or construction consultant, then the design-build entity or construction consultant may withhold retention proceeds in excess of the percentage specified in the contract between the city and the design-build entity or construction consultant from any payment made by the design-build entity or construction consultant to the subcontractor.
(Ord. 5022 § 2, 2015)