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HomeMy WebLinkAbout2009-08-11; City Council; 19931; Amending the CMC regarding 3.28.085 and 3.28.130CITY OF CARLSBAD - AGENDA BILL AB# 19,931 MTG. 08/11/09 DEPT. CA Amending Carlsbad Municipal Code by Adding and Amending Sections .28.085 and 3.28.130 Regarding Design Build Contracts and Prevailing Wages Request for Finding by City Council for Sewer Main Services DEPT. HEAD CITY ATTY. *(3K CITY MGR. , ^ U^ RECOMMENDED ACTION: Introduce Ordinance CS- CS-046 amending the Carlsbad Municipal Code by adding section 3.28.085 regarding Design Build Contracts. Introduce Ordinance CS- CS-047 amending the Carlsbad Municipal Code by amending section 3.28.130 regarding Prevailing Wages. Adopt Resolution No. 2009-210 finding that in accordance with Carlsbad Municipal Code Section 3.28.130 that it is not in the best interest of the City of Carlsbad to require prevailing wages for the sewer main cleaning contract. ITEM EXPLANATION: Design Build All California cities must follow the requirements of the Public Contract Code regarding the awarding of Public Works Contracts. Public Contract Code Section 1100.7 allows Charter Cities to follow alternative procedures as long as the procedures are specifically exempted from the provisions of the code by the Charter or an ordinance. In the last year the State passed Public Contract Code Section 20175.2, which authorized cities to enter into Design Build contracts for building construction projects. The scope of the projects is somewhat limited in that they must be in excess of $1,000,000 and street and highway projects are excluded. All projects would require a labor compliance program which would in turn require the city to pay prevailing wage and to hire a third party to oversee compliance. This ordinance removes these restrictions and simplifies the State process. An article in the May 2009 edition of Western City Magazine published by the California League of Cities reported the following advantages and disadvantages of design build contracts: DEPARTMENT CONTACT: Ron Ball (760) 434-2891 FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED * D D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES nn o X • Speeds delivery. Design-build offers the potential for faster project delivery. With this method, construction can begin before the project's final plans and specifications are complete. This reduces lead times, accelerates the project schedule and reduces overall project costs. • Speeds delivery. Design-build offers the potential for faster project delivery. With this method, construction can begin before the project's final plans and specifications are complete. This reduces lead times, accelerates the project schedule and reduces overall project costs. • Eliminates redundancies and cost. Design-build eliminates design effort redundancies, which typically exist between the designer and contractor. Because the contractor is involved in the design process from inception, he or she can provide helpful insights on construction materials and methods that can make the design more efficient and less expensive. • Simplifies communication. The lead agency needs to deal with only a single point of responsibility: the design-build entity. Because that entity assumes the major administrative functions of overseeing the project, the city or agency can assign fewer staff to manage the contract and the relationship with the contractor. • Reduces risk. Design-build reduces the project risk for the owner by shifting the liability and risk for cost containment and project completion to the design-build entity. Because the lead agency is not the guarantor of the completeness and accuracy of the design professional's work, the owner can also avoid conflicts and disputes between the contractor and design professional. On the other hand, design-build can also have some disadvantages, including: • Loss of control. The city or public agency gives up some control when it enters into a design-build contract, because the project will not yet be defined in detail. When using design-build, the owner transfers many responsibilities to the design-build entity, which means there are potentially fewer checks and balances than in the traditional design- bid-build system. • Potential cost increases. There may be increased administrative costs caused by the development and use of agreements that are unfamiliar to city staff. Prevailing Wages General law California cities must follow the requirements of California Labor Code Section 1770 et.seq., requiring the payment of prevailing wages on public works projects. Charter Cities, however, have not historically been bound by state law prevailing wage requirements when the project is strictly a municipal affair. The proposed amendment to Carlsbad Municipal Code (CMC) 3.28.130 streamlines the procurement process as it relates to prevailing wages. The definition of a public works project in the Labor Code is broad enough to include maintenance work. The current ordinance added an extra step requiring certain maintenance projects to go to the City Council for a finding that it is in the best interests of the City to not pay prevailing wages. The amendment states that public works projects undertaken by or on behalf of the City, and which are within the realm of the City's municipal affairs, shall not be subject to prevailing wage law. This revision eliminates the need for a case by case ruling on each project before it goes to bid to determine if prevailing wages shall be paid. It also clarifies that projects done under reimbursement agreements on behalf of the City will not have the requirement of prevailing wage when the City would not be required to pay prevailing wage. Sewer Maintenance Finding As mentioned above, the current version of CMC 3.28.130 requires a finding by the awarding authority that it is in the best interests of the City to not pay prevailing wages for each public works project as defined in the Labor Code. This sewer maintenance project is time sensitive because of the need to comply with the State Waste Discharge Requirement. In FY 07-08 Wastewater budget submittal, a sewer cleaning truck, commonly referred to as a Vactor and two Utility Worker positions were approved by Council. This equipment and staffing was approved on the basis that the Wastewater Division would need a total of three sewer cleaning crews to clean the entire sewer system consisting of 12" and smaller pipelines annually. The Wastewater Department and the Finance Department are currently evaluating the cost benefits of using City services versus outside services to perform these services to ensure the Carlsbad rate payers are receiving the most cost effective services possible. Until this evaluation is completed, staff is soliciting bids for sewer cleaning services of approximately 86 miles of sewer mains, 12" and smaller, for a period of one year with the option to renew for three additional one year periods. Staff is recommending that Council make a finding that it is not in the best interest of the City of Carlsbad to require the payment of prevailing wage for the work associated with the cleaning the gravity sewer collection system as removing that requirement could result in measurable cost savings to the City of Carlsbad. FISCAL IMPACT: Adoption of the Design Build ordinance would allow the City to proceed with Design Build contracts. There may be potential cost savings depending on the project as discussed above. Adoption of the Prevailing Wage ordinance change may result in lower project costs due to lower labor rates. The sewer maintenance contract will be funded from the Wastewater Operating budget. No funding from State or Federal agencies or programs is included. ENVIRONMENTAL IMPACT: This action does not constitute a project as defined under CEQA (California Environmental Quality Act) pursuant to Public Resources Code Section 21065 in that the proposed ordinance would not cause any direct physical change in the environment. EXHIBITS: 1. Ordinance No. CS- cs-046 adding Section 3.28.085 to the Carlsbad Municipal Code, regulating Design Build Contracting. 2. Ordinance No. CS- CS-047 amending Section 3.28.130 of the Carlsbad Municipal Code, regulating Design Build Contracting and Prevailing Wages. 3. Strikeout Prevailing Wage Ordinance. 4. Resolution No. 2009-210 finding that in accordance with Carlsbad Municipal Code Section 3.28.130 that it is not in the best interest of the City of Carlsbad to require prevailing wages for the cleaning of portions of the City of Carlsbad's gravity sewer collection system. 1 2 THE CITY OF CARLSBAD, CALIFORNIA, 3 ADDING SECTION 3.28.085 TO THE 4 5 C election voted to change the powers and duties of the City by adopting a City 7 Charter; and 8 WHEREAS, with the certification of the Charter the City Council has 9 plenary authority to legislate matters of local concern notwithstanding general laws to10 11 12 13 18 19 20 21 EXHIBIT 1 ORDINANCE NO. CS- CS-046 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, ADDING SECTION 3.28.0? CARLSBAD MUNICIPAL CODE WHEREAS, the voters of the City of Carlsbad at the June 3, 2008 the contrary; and WHEREAS, the state legislature has enacted Public Contract Code section 20175.2 regarding the method a City can enter into Design Build Contracts; 14 .and 15 WHEREAS, the City Council of the City of Carlsbad has determined that 16 it is in the best interests of the City of Carlsbad to adopt an alternative to the procedure in Public Contract Code section 20175.2. follows: NOW, THEREFORE, the City Council of the City of Carlsbad ordains as SECTION 1: That section 3.28.085 is added to the Carlsbad 22 Municipal Code: 23 3.28.085 Design-Build Contracts 24 Section 100 of the Charter of the City of Carlsbad provides 25 that the city council shall have full power and authority to adopt laws with respect to municipal affairs. Section 404 26 provides that the city council shall have the power to 27 establish procedures and regulations for contracts for the construction of public improvements. As an alternative to the 28 -1 - EXHIBIT 1 bidding process set forth in this Chapter and the California Public Contract Code, and when recommended by the City 2 Manager in writing, there is hereby established a design build procurement and contracting approach. 3 4 A. Purpose and Intent The purpose of this section is to provide definitions and 5 guidelines for the award, use, and evaluation of design-build contracts. 6 B. Definitions For the purposes of this section, the following definitions 8 aPP'y: g "Design-Build" means a public works contract procurement 10 method in which both the design and construction of a project are procured from a single entity. 11 "Design-Build Entity" means a natural person, partnership, 12 joint venture, corporation, business association or other legal 13 entity that is able to provide appropriately licensed contracting, architectural, and engineering services as 14 needed. 15 "Design-Build Entity Member" includes any person who 16 provides licensed contracting, architectural, or engineering services. C. Design-Build Procurement For purposes of this section only, prior to procuring a Design- 19 Build public works contract, the city shall prepare a request for proposal setting forth the scope of the project that may include, 20 but is not limited to, the size, type, and desired design character of the buildings and site, and performance21 specifications. The performance specifications shall describe the quality of materials, equipment, and workmanship, preliminary plans or building layouts and other information 23 deemed necessary to adequately describe the city's needs. The performance specifications shall be prepared by a design 24 professional who is duly licensed and registered in California. 25 D. Competitive Prequalification and Selection Process 26 The city may establish a competitive prequalification and selection process for Design-Build Entities that specifies the 27 prequalification criteria, as well as recommends the manner in which the winning entity will be selected. 28 -2- EXHIBIT 1 1 2 E. Prequalification Criteria Prequalification may be limited to consideration of all or any of 3 the following criteria supplied by a Design-Build Entity: 1. Possession of all required licenses, registration, and 4 credentials in good standing that are required to design and construct the project. 0 6 2. Submission of documentation establishing that the Design-Build Entity members have completed, or 7 demonstrated the capability to complete, projects of similar size, scope, building type, or complexity, and that 8 proposed key personnel have sufficient experience and training to competently manage and complete the design and construction of the project. 10 ^ 3. If the design-build entity is a partnership, limited partnership, joint venture or other association, a listing 12 of all of the partners, general partners, or association members known at the time of bid submission who 13 will participate in the design-build contract. 14 4. Submission of a proposed project management plan establishing that the Design-Build Entity has the 16 experience, competence, and capacity needed to effectively complete the project. 17 18 5. Submission of evidence establishing that the Design- Build Entity has the capacity to obtain all required 19 payment and performance bonding, liability insurance, and errors and omissions insurance, as well as a financial statement assuring the city that the Design- 21 Build Entity has the capacity to complete the project. 22 6. Information concerning the bankruptcy or receivership 23 of any member of the Design-Build Entity, including information concerning any work completed by a surety. 24 25 7. Information concerning any debarment, disqualification, or removal of the Design-Build Entity from a federal,26 state, or local government public works project. Any instance in which the Design-Build Entity or any member submitted a bid on a public works project and 28 -3- EXHIBIT 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were found to be non-responsive, or were found by the awarding body not to be a responsible member. 8. Provision of a declaration providing detail for the past five years concerning all of the following: a. Civil or criminal violations of the Occupational Safety and Health Act against any member of the Design-Build Entity. b. Civil or criminal violations of the Contractors' State License Law against any member of the Design-Build Entity. c. Any conviction of any member of the Design-Build Entity of submitting a false or fraudulent claim to a public agency. d. 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 (PICA) withholding requirements, state disability insurance withholding, or unemployment insurance payment requirements against any member of the Design- Build Entity. For purposes of this sub-paragraph only, violations by a Design-Build Entity Member, as an employer shall be deemed applicable, unless it is shown that the Design-Build Entity Member, in his or her capacity as an employer, had knowledge of a subcontractor's violations or failed to comply with the conditions set forth in Section 1775(b) of the State Labor Code. e. Civil or criminal violations of federal or state law against any Design-Build Entity Member governing equal opportunity employment, contracting or subcontracting. f. Information concerning all settled adverse claims, disputes, or lawsuits between the owner of a public works project and any member of the Design-Build Entity in which the claim, settlement, or judgment exceeds fifty thousand dollars ($50,000). 9. The information required pursuant to this subdivision shall be verified under oath by the entity and its members in the manner in which civil pleadings in civil actions are verified. Information that is not a public record pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) shall not be open to public inspection. -4- EXHIBIT 1 1 F. Selection Method 2 The awarding authority shall select one of the following methods as the process to be used for the selection of the winning 3 entity: 4 1. A Design-Build competition based on performance, specifications, and criteria set forth by the awarding 5 authority in the request for proposals. 6 a. Criteria used in this form of evaluation of proposals may include, but not be limited to, items such as proposed design approach, initial and/or life-cycle costs, project 8 features, financing, quality, capacity, schedule, and operational and functional performance of the facility. 9 However, any criteria and methods used to evaluate proposals shall be limited to those contained in the 10 request for Design-Build proposals. b. Any architectural firms, engineering firms, specialty 11 consultants, or individuals retained by the city to assist in the development of criteria or preparation of the request 12 for proposals shall not be eligible to participate in the competition with any Design-Build Entity. c. Award shall be made to the Design-Build Entity whose 14 proposal is judged as providing best value meeting the interests of the city and meeting the objectives of the 15 project. 16 2. A Design-Build competition based on program requirements, performance specifications, and a preliminary design or 17 combination thereof set forth by the awarding authority in the request for proposals. Limited drawings and specifications detailing the requirements of the project may 19 accompany the request for proposals. 20 a. The awarding authority shall establish technical criteria and methodology, including price, to evaluate proposals 21 and shall describe the criteria and methodology of evaluation and selection in the request for Design-Build 22 proposals. b. Any architectural firms, engineering firms, specialty 23 consultants, or individuals retained by the city to assist in 24 the preparation of the preliminary design or request for proposals shall not be eligible to participate in the 25 competition with any Design-Build Entity. c. Award shall be made to the Design-Build Entity on the 26 basis of the technical criteria and methodology, including price, whose proposal is judged as providing best value 27 in meeting the interests of the city and meeting the objectives of the project. 28 -5- EXHIBIT 1 1 3. A Design-Build competition based on program requirements 2 and a detailed scope of work, including any preliminary design drawings and specifications set forth by the 3 awarding authority in the request for proposals. 4 a. Any architectural firms, engineering firms, specialty 5 consultants, or individuals retained by the city to assist in the preparation of the preliminary design or request for 6 proposals shall not be eligible to participate in the competition with any Design-Build Entity. 7 b. Award shall be made on the basis of the lowest responsible and reliable bid. 8 G. Work Listing 9 The city recognizes that the Design-Build Entity is charged with performing both design and construction. Because a Design- Build contract may be awarded prior to the completion of the 11 design, it is often impracticable for the Design-Build Entity to list all subcontractors at the time of the award. 12 1. It is the intent of the city to establish a clear process for the 13 selection and award of subcontracts entered into pursuant to this Division in a manner that retains protection for 14 subcontractors while enabling Design-Build project to be 15 administered in an efficient fashion. 16 2. All of the following requirements shall apply to subcontractors, licensed by the state, that are employed on 17 Design-Build projects undertaken pursuant to this Section. 18 a. The Design-Build Entity in each Design-Build proposal19 shall specify the construction trades or types of subcontractors that may be named as members of the 20 Design-Build Entity at the time of award. In selecting the 21 trades that may be identified as members of the Design- Build Entity, the Design-Build Entity shall identify the 22 trades deemed essential in the design considerations of the project. All subcontractors that are listed at the time 23 of award shall be afforded the protection of all applicable laws. 24 •^C b. All subcontracts that were not listed by the Design-Build 26 Entity at the time of award in accordance with Section G(2)(a) shall be performed and awarded by the Design- 27 Build Entity, in accordance with a bidding process set forth in the request for proposals. 28 -6- 1 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and 2 the city clerk shall certify the adoption of this ordinance and cause it to be published at least 3 once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its 4 adoption. 5 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on 6 the 11th day of August, 2009, and thereafter. 7 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the 8 City of Carlsbad on the day of , 2009, by the following vote to wit: 9 10 AYES: 11 NOES: 12 ABSENT: 13 14 APPROVED AS TO FORM AND LEGALITY 15 16 17 RONALD R. BALL, City Attorney 18 19 CLAUDE A LEWIS, Mayor 20" 21 ATTEST: 22 23 LORRAINE M. WOOD, City Clerk 24 (SEAL) 25 " 26 27 28 1 2 THE CITY OF CARLSBAD, CALIFORNIA, 3 AMENDING SECTION 3.28.130 OF THE 4 NOW, THEREFORE, the City Council of the City of Carlsbad ordains as follows: That section 3.28.130 is amended to the Carlsbad Municipal Code: 3.28.130 Prevailing Wages 7 8 9 10 11 12 13 17 18 19 20 21 23 24 28 Exhibit 2 ORDINANCE NO. CS-047 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, < AMENDING SECTION 3.28.1; CARLSBAD MUNICIPAL CODE A. Unless specifically ordered otherwise by the City Council, contracts for public works projects, as defined in section 1720, et seq. of the California Labor Code, which are undertaken by or on behalf of the City of Carlsbad or its agencies, and which are the City's municipal affairs, shall not be subject to prevailing wage law (section 1770, et seq. of the California Labor Code), except as specified in subdivision (b) below. Any notice inviting bids for -15 such public works projects shall include notification of the provisions of this section, 16 B. The provisions of subdivision (a) above shall not apply to any public works project undertaken by or on behalf of the City (i) which is considered to be of statewide concern as determined by the City Attorney, (ii) which is funded in whole or in part by state or federal loans, grants or other funding or involvement, where payment of prevailing wages is required in order to receive the state or federal funding or involvement. 22 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and the city clerk shall certify the adoption of this ordinance and cause 25 it to be published at least once in a newspaper of general circulation in the City of 26 Carlsbad within fifteen days after its adoption. 27 -1 - 1 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on 2 the 11th day of August, 2009, and thereafter. 3 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the 4 City of Carlsbad on the day of , 2009, by the following vote to wit: 5 6 AYES: 7 NOES: 8 ABSENT: 9 ABSTAIN: 10 11 APPROVED AS TO FORM AND LEGALITY 12 13 RONALD R. BALL, City Attorney 15 16 CLAUDE A LEWIS, Mayor 1?" 18 ATTEST: 19 20 LORRAINE M. WOOD, City Clerk 21 (SEAL) 22" 23 24 25 26 27 28 Exhibit 3 1 3.28.130 Prevailing Wages 2 A This section is intended to supersede the provision of the Public Contract Code 3 and Labor Code requiring payment of prevailing wages, and, except as expressly set forth in this section, the provisions of the Public Contract Code and the Labor Code4 5 6 7 pertaining to prevailing wages shall have no application to Construction Contracts of the City of Carlsbad or its agencies. B-. Payment of prevailing wages pursuant to Labor Code Section 1770 and complianco with the prevailing wage requirements of Labor Codo Section 1770 et seq. shall not be required for any public works entered into by the City or any of its agencies except when required as a condition of any Federal or State grants and on other projects dotorminod by the City Council to be of statewide concern. 8 -4-: For each public project of less than the amount specified in Section 22032 9 10 11 12 (b) of the California Public Contract Code, the City Manager shall determine whether or not it is in the City's best interest to require prevailing wages for that project and that determination shall be included in the notice inviting Bids. For each Construction Project of more than the amount specified in Section 22032 (b) of the California Public Contract Code, the City Council shall determine whether or not it is in the City's best interest to require prevailing wages for tho project 14 15 16 19 20 21 22 23 24 25 26 27 28 and that determination shall be included in the notice inviting bids. 13 A Contracts for public works projects, as defined in section 1720, et seq. of the California Labor Code, which are undertaken by or on behalf of the City of Carlsbad or its agencies, and which are within the realm of the City's municipal affairs, shall not be subject to prevailing wage law (section 1770, et seq. of the California Labor Code), except as specified in subdivision (b) below. Any notice inviting bids for such public works projects shall include notification of the 17 provisions of this section. 18 B. The provisions of subdivision (a) above shall not apply to any public works project undertaken by or on behalf of the City (i) which is considered to be of statewide concern as determined by the City Attorney, (ii) which is funded in whole or in part by state or federal loans, grants or other funding or involvement, where payment of prevailing wages is required in order to receive the state or federal funding or involvement. -1 - EXHIBIT 4 1 RESOLUTION NO. 2009-210 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, FINDING THAT IT IS NOT IN 3 THE BEST INTEREST OF THE CITY OF CARLSBAD TO 4 REQUIRE THE PAYMENT OF PREVAILING WAGES FOR VARIOUS MAINTENANCE AND SERVICE AGREEMENTS 5 WHEREAS, the City of Carlsbad requires the services of various maintenance 6 and service contractors; and 7 WHEREAS, measurable cost savings may be realized if contract services are let8 9 without the requirement to pay prevailing wages for gravity sewer collection system 10 cleaning; and 11 WHEREAS, staff recommends that Council make a finding that it is not in the 12 best interest of the City of Carlsbad to require the payment of prevailing wages for the 13 above mentioned contract services; and 14 WHEREAS, State and Federal funding will not be utilized for the above- mentioned contract services; and 16 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 17 Carlsbad, California, as follows: 18 19 1. That the above recitations are true and correct. 20 2. That the measurable cost savings may be realized if contract services are 21 let without requirement to pay prevailing wages. 22 3. That a finding is made that it is not in the best interest of the City of 23 Carlsbad to require the payment of the payment of prevailing wages for this contract 24 service. 25 4. That State and/or Federal funding will not be utilized for these contract26 27 services. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 11th day of August, 2009, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn NOES: None. ABSENT: None. LEWIS, Mayor ATTEST: fcJTt/UL O -. , LORRAINE M. WOOD, City Clerk