Ordinance 1583
ORDINANCE N0. i583
AN ORDINANCE OF THE CITY OF CUPSRTIN0
.~:~;AQOPTINGCBAPTER 3.23:,OF THE CUPERTIN0
MUNICIPAL CODE FOR THE PURPOSE OF CLARIPY-
,r.ING-CUPERTINO'S COMPETITIVE BIDDING R$^,
QUIREMSNTS PURSUANT TO THS PUBLIC CONTRACT "
-.CODS
The City Council of the City of Cupertino ordains
as follows:
SECTION I.
Chapter 3.23 of the Cupertino Municipal Code,
entitled "Public Works Contract and Bidding Procedures,"
is hereby enacted to be numbered and entitled and to
read as follows:
Section 3.23.010 - Purpose of Chapter.
This Chapter is enacted to enhance competition,
to prevent corruption and undue influence in the award-
ing of public works contracts and to clarify the City's
competitive bidding requirements established pursuant to
Part 3 of the California Public Contract Code, SS 20100
et seq.
Section 3.23.020 - Definitions.
As used in this Chapter, the following terms,
phrases, words and their derivations shall have'the
meanings given herein.
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1. "Bid" means any proposal submitted to the
City in competitive bidding for the construction, altera-
tion, repa.'.r or improvement of any structure, building,
road or other improvement of any kind, or for purchases
and contracts for supplies, services and equipment.
2. "City" means and includes all the territory
lying.. within the municipal boundaries of the City of
Cupertino.
3. "Lowest responsible bidder" means the lowest
bidder whose offer best responds in quality, fitness and
capacity to the particular requirements of the proposed
work.
4. "Public works contract" means an agreement
for the erection, construction, alteration, repair or
improvement of any public structure, building, road or
other public improvement of any kind.
5. "Public works project" means:
a) The erection, improvement, painting or
repair of public buildings and works.
b) Work to protect against overflow of
streams, bays, waterfronts or embankments.
c) Street or sewer work except for main-
tenance or repair thereof.
d) Furnishing supplies or materials for any
such project, including the maintenance or repair of
streets or sewers.
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Section 3.23.030 - Competitive Bidding.
Ezcept as otherwise provided in this Chapter and
Chapter 3.24, purchases and contracts for supplies, aer-
..vices., equipment and public works projects with an`esti-
mated dollar value equal to or in excess of the required
dollar value for competitive bidding established by
Section 22032 of the California Public Contract Code,
shall be by written contract pursuant to the procedures
prescribed in this Chapter.
Section 3.23.040 - Notice Inviting Bids.
The notice inviting bids shall be in the form and
published as follows:
A., Notices inviting bide shall'incluc'::
1. A distinct description of the supplies, aer-
vicea or equipment to be purchased, or the public works
to be performed;
2. The location where bid blanks and specifics-
.. tiona may be secured;
3. .The time and place for opening bids;
4. The type and amount of bidder's security
required; and
- 5. The class of license required for the public
works to be performed; and
6. A statement that the City has the authority
to reject any and all bide and may waive any minor
technicality or variance from the bid specifications.
B. The notice inviting bids shall be at least 14
calendar days before the date of opening the bids in a
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newspaper of general circulation printed and published
in .the City. The. notice shall also be mailed at least
30 calendar days before the date of opening the `bids to
all construction trade journals specified in Section
22036 of the California Public Contracts'Code.
Section 3.23.050 - Presentation of Bids] Security Requir-
ed.
A. _ All bids shall be presented under sealed cover
(identified as bids on the envelope), submitted to the
City Clerk and accompanied by one of the following forma
of bidder's security.
1. Cash.
2. A Cashier's check made payable to the City.
3. A certified check made payable to the City.
,4. A bidder's bond executed by an admitted `
surety insurer, made payable to the City.
B.; The security shall be in an amount equal to at
least 10 percent of the amount of bid, or such other sum
as may be authorized by the California Public Contracts
Code.. A bid shall not be considered unless one of the
forma of bia9er's security is enclosed with it.
C. Upon award of the contract to the lowest responsible
bidder, the security of an unsuccessful bidder shall be
returned in a reasonable period of time, but in no event
shall such security be held by the City beyond 60 days
from the date the notice of award of contract is mailed.
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D. All b~dders on a public works project must designate
in their bids the name and address of each subcontractor
who will perform work exceeding one-half of one percent
of_the prime contractor's total bid and what portion of
he-work each subcontractor will pecform. The prime
::contractor shall list only one subcontractor for each
.portion of work as is defined by the prime contractor in
,their bid.
Section 3.23.060 -Opening Hids.
Bids shall be opened in public at the time: and
place stated in the notice inviting bide. A tabulation
of all bids received shall be open fot public inspection
during regular business hours. for a period of. not less
.than fifteen calendar days after the bid opening. Any
bid which is received after the time specified in--the
notice shall be returned unopened.
Section 3.23.070 - Award of Contract.
•Contracts shall be awarded by the City Council to
.the lowest responsible bidder except ae otherwise pro-
vided in .this Chapter.
Seation 3.23.080 - Forfeiture of Security.
If the successful bidder fails to execute he
contract within ten days after the date the notice of
award of contract is mailed, unless the City ie reapon-
sible for the delay, the amount of the bidder's.aecurity
shall be forfeited to the City except as hereinafter
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provided. in Section 3.23.090.
Section .3.23.090 - Award of Contract to Next Lowest Bid-
. ders Failure to Execute Contract.
The City Council may, on refusal or failure to
the successful bidder to execute the contract within ten
days after the date the notice of award of contract is
mailed, unless the City is responsible for-the delay,
award it to the next lowest responsible bidder.- If the
City Council awards the contract to the second loaeat
bidder, the amount:of the lowest bidder's security shall
be applied by the City to the difference between the low
bid and the second lowest bid, and the surplus, if any,
shall-be returned to the lowest bidder if cash or a
check is used, or to the bidder's surety if a bond 'is
used.
Section 3.23.100 - Award of Contract to Next Lowest Bid-
der - Lowest Bidder Irresponsible; Bearing.
A. The City Council, in its sole diaccetion, may
reject the lowest bid for purchases and contracts for
supplies, services, equipment and public works projects
upon specific findings that the lowest bidder is not
responsible. To determine responsibility, the City
Council may consider, among other things, the•bidder's
financial responsibility, type of license, type of equip-
ment, number of years experience in construction work,
other projects bidder worked on in the last 5 years,
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whether bidder has failed to complete any contract and
bidder's ability to be bonded.
B. if the City Council rejects the lowest bid upon its
determination that the lowest bidder-is not. responsible,
the City shall do the following:
1. Give notice of the City Council's decision to
the lowest bidder, setting forth the reasons why he/she
is not considered the lowest "responsible" bidder;
2. In the notice, give bidder an opportunity to
ask for a pre-award hearing before the City Council`on
the issue;
3. If hearing is requested, agenda the matter
pursuant to California Government Code hearing require-
ments;
e 4. After the hearing, the City Councii shall
.:make a finding, supported by the evidence on the .record,
as to the non-responsibility of the lowest bidder.
.Section. 3.23.110 -.Resection of Bids; Identical Bids;
Absence of Sida.
The City Council, in its sole discretion, may:
A. Reject any bids presented and readvertise for
new bide.
8. Reject any bid that fails to meet the bidding
requirements in any respect.
C. If two or more-bide are the same and the low-
est, the City Council may accept the one it chooses.-
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D. If no bids are received, the City Council may
have the project done without further complying with
this Chapter.
E. Waive minor irregularities in any'bid receiv-
ed.
Section 3.23.120 - Informal Bidding'Procedure For Public
Works Projects.
Except as otherwise required by this Chapter'or
under State or Federal law, the bidding procedures of
this Chapter may be dispensed with-for public works pro-
jects with an estimated dollar value equal to or less
.than the required dollar value specified in Subdivision
(b) of Section 22032 of the Public Contract Code, and
the following informal bidding procedures substituted
A. The .City"shall maintain a list of qualified contract-
ors, identified according to categories of work. Mini-
mum criteria for compilation of the contractor list
shall be determined by the California Oviform Construc-
tion Cost Accounting Commission ("Commission"). All
contractors on the list for the category of work being
bid and/or all construction trade journals specified by
the Commission shall be mailed a notice inviting- inform-
al bids, unless the product or service is proprietary.
e. All notices to contractors in construction trade
journals shall be mailed not less than thirty calendar
days before the date of opening the bids.
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C. The notice inviting informal bids shall describe the
project in general terms, how to obtain more detailed
information about the pcoject, state the time an8 place
-for submission of bide and be published at least once.
D. The City Council hereby delegates the authority to
award contracts pursuant to informal bidding to the City
Manager or other person designated in writing by the
City Manager.
Section 3.23.130 - Exempted From Bidding Requirements.
The fallowing are exempt from competitive bidding
requirements:
A. Professional Services. Includes, but is not re-
°atricted to, services of lawyers, architects, engineers,
land surveyors, artists, and accountants.
B. .Maintenance. Includes the maintenance and repair of
atrtets an8 sewers, but does not include the furnishing
of materials for such maintenance.
C. Ra-ergency work. if there is a great public calam-
ity, such as an extraordinary fire, flood, storm, Bpi-
' demic or other disaster, or if it is necessary to do
emergency work to prepare for national or local defense,
the City Council may pass a resolution by a four-fifths
vote declaring that the public interest and necessity
demand the immediate expenditure of public money to safe-
guard life, health or property. Upon adoption of the
resolution, the City may expend any sum require8 in"'the
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emergency without complying with this Chapter.
D. Small Contracts. Any contract for supplies, ser-
vices, equipment and public works projects with an eati-
mated dollar value leas than the requited dollar value
for,couYpetitive bidding established by, Section 22032 of
the California Public Contract Code.
B. Meaningless Bids. Where the nature of the subject
of the contract is such that competitive proposals would
-not produce an advantage and when the advertisement for
competitive: bidding would be undesirable, impractible or
impossible.
F. Performance of Project After Rejection of Hids.
After rejection of bids presented, the City Council may
pass a resolution by a four-fifths vote declaring that
the project can be performed more. economically by day
-labor or the materials or supplies furnished at a lower
price in the open market. Upon adoption of the resolu-
tion, the City is relieved from further compliance with
.formal bidding requirements.
Section 3.23.140 - Performance Bond.. of Succea ful Bidder.
The City Manager shall have authority to require
a performance bond before entering a contract, in such
amount as the City Manager finds reasonably necessary to
protect the best interests of the City or as may be re-
quired by law. If the City requires a performance-bond.
the form and amount of the bond shall be described in
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the notice inviting bids.
Section 3.23.150 -Deposit of Proceeds.
The cash or proceeds collected pursuant to this
Chapter shall be deposited in the fund out of which the
expenses of preparation and printing 'of the plans and
specifications, estimates of cost and publication of
notice are paid.
Section 3.23.160 - Additional Work by City Authority.
Notwithstanding the provisions of this Chapter,
if any public works project is being performed upon any
street or utility, and the Director of Public Works de-
termines that additional City work is required upon the
same street or utility, the Director of Public Works may
order that the additional City work be accomplished by
purchase order or contract without complying with the
bidding requirements established in this Chapterf
.provided that the cost of the additional work does not
--exceed the required dollar value for bidding established
by Section 22032 of the California Public Contract Code.
Section 3.23.170 - Deletions of Work by City Authority.
The City reserves the right to delete up to
twenty-five (25) percent of the work on a public works
contract where such deletions would advance the project
as originally contemplated.
Section .3.23.180:- Severability. -
if any section, subsection, subdivision, sen-
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tence, clause or phrase of this Chapter is for any rea-
son held to be unconstitutional or otherwise void or
invalid, by any court of competent jurisdiction the
•, validity of the remaining portion of this Chapter shall
not,be affected thereby..
Section IZ - Bnforcement.
This Ordinance shall be in full force and effect
thirty ,days after the date of its passage and adoption.
The City Clerk is hereby authorized and instructed
to file a certified copy of this ordinance upon its
becoming effective with the Sheriff's Office of the
County of Santa Clara, State of California.
Section III - Publication
The City Clerk shall cause this ordinance to be
..published at least once in a newspaper of general circu-
lation-published and circulated in the City within fif-
teen,(15) days after its passage, in accordance with
..Section 36933. of the Government Code; shall certify to
the adoption of this ordinance and shall cause this ordi-
nance and her certification, together with proof of pub-
lication, to be entered in the Book of Ordinances of the
Council of this City.
INTRODDCBD at a regular meeting of the City-
Council this 3rd day of February . 1992, and BNACTED
at a regular meeting of the: City Council this _18ch 'day
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of February 1992, by the following vote:
Votes Members of the City Councils
Ayes: Dean. Goldman. Koppel, Szabo, Sorensen
Noels None
Absent s None
Abstain: None
ATTB3Ts APPROVED:
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C ty C er yor, C t o upert ni o