Revision to Agenda Item #1
Revisions were made to the staff report as well as Attachment A and Attachment B. Please see below for the changes.
Staff Report Changes
• Background section:
Last paragraph should read as follows:
VMC Subsection 2.28.230(b) states that modifications or waivers of competitive bidding procedures for public works projects can only occur if:
(1) the City Council adopts a resolution which sets out the facts and circumstances supporting the finding of necessity for such a waiver or modification; and (2) such resolution is adopted by a four-fifths vote of the membership of the City Council. VMC Subsection 2.28.230(b) requires a supermajority vote to pass such resolution, with certain exceptions relating to use of design-build, to ensure that competitive bidding requirements for public works projects are waived/modified only when absolutely necessary. • Discussion section:
Second paragraph should read as follows:
To avoid situations where individual Councilmembers are given veto power over the will of a majority of the City Council, it is important to amend the provisions of Section 2.28.230 to allow for a three-fourths vote in situations where there are less than five sitting members of the City Council. Proposed Ordinance No. 2427 (Attachment A) would so amend VMC Subsection
2.28.230(b), but would not change the requirement for a four-fifths vote in situations where there are five City Councilmembers currently seated (i.e., no unfilled vacancies exist).
Attachment A Changes
• Recitals:
Fifth recital should read as follows:
WHEREAS, the four-fifths vote requirement was to ensure that greater than a simple majority vote would be required under the rare circumstances when a modification or waiver of bidding requirement was necessary, but such four-fifths vote requirement does not take into consideration a situation where the City Council is comprised of less than five City Council members as a result of unfilled vacancies; and
Sixth recital should read as follows:
WHEREAS, in situations where there are fewer than five members serving on the City Council it would follow that a three-fourths vote would still preserve the supermajority requirement while at the same time preventing a situation where one Councilmember would have veto power over a vote pending before the City Council.
• Sections:
Section 2 should read as follows:
The facts and circumstances supporting the City Council's determination that one or more of the bidding exceptions set forth in this section exempts a public works project from the competitive bidding procedures in this article shall be set forth in a resolution requiring a four-fifths (4/5) vote of the membership of the City Council for adoption when there are five sitting Councilmembers, and a three-fourths (3/4) vote of the membership of the City Council for adoption when there are fewer than five sitting Councilmembers on the City Council (with the exception of a determination of the applicability of design/build, which shall only require a simple majority vote). Such resolution shall also specify the manner in which such public works project shall be procured {e.g., by negotiated contract, by formal or informal RFP/Q, by seeking written quotations, or such other method as the City Council shall authorize).
Attachment B Changes
• Subsection
Subsection (b) should read as follows:
The facts and circumstances supporting the City Council's determination that one or more of the bidding exceptions set forth in this section exempts a public works project from the competitive bidding procedures in this article shall be set forth in a resolution requiring a four-fifths (4/5) vote of the membership of the City Council for adoption when there are five sitting Councilmembers, and a three-fourths (3/4) vote of the membership of the City Council for adoption when there are fewer than five sitting Councilmembers on the City Council {with the exception of a determination of the applicability of design/build, which shall only require a simple majority vote). Such resolution shall also specify the manner in which such public works project shall be procured {e.g., by negotiated contract, by formal or informal RFP/Q, by seeking written quotations, or such other method as the City Council shall authorize).
Item Number: 1
City Council / Board of Directors
Public Hearing(s)
Meeting of: March 29, 2022
Submitted By:
Keith C. Metzler, City Manager
Andre de Bortnowsky, City Attorney
Subject:
Consideration of City Council Ordinance No. 2427 Amending Section 2.28.230(b) of Article IV of Chapter 2.28 (Purchasing System) of the Victorville Municipal Code to Modify the Vote Requirement for Adopting Resolutions Making Findings and Authorizing Exceptions to Bidding Requirements in Limited Circumstances Recommendation:
That the Honorable City Council: (1) Open and conduct the Public Hearing; (2) Close the Public Hearing; (3) Introduce Ordinance No. 2427 for adoption and first reading by title only; and (4) Waive further reading in full of proposed Ordinance No. 2427.
Fiscal Impact:
There is no fiscal impact resulting from this action.
Background:
Section 2.28.230 of the Victorville Municipal Code (the "VMC") contains various situations in which the Victorville City Council (the "City Council") may, after reviewing and considering the facts of a particular public works project, waive or modify the usual bidding requirements of Article IV of the VMC by finding that any one or more of the seven circumstances listed in Subsection (a) of that Section exist.
Although rarely invoked, some of the circumstances warranting bidding modification or waiver include, but are not limited to, situations in which:
(1) The work is of a highly specialized nature;
(2) There would be no competitive advantage to requiring bidding for the contract;
(3) The cost of the work would be significantly increased or its completion significantly delayed;
(4) An emergency, as determined by the City Council exists.
VMC Subsection 2.28.230(b) states that modifications or waivers of competitive bidding procedures for public works projects can only occur if: (1) the City Council adopts a resolution which sets out the facts and circumstances supporting the finding of necessity for such a waiver or modification; and (2) such resolution is adopted by a four-fifths vote of the membership of the City Council. VMC Subsection 2.28.230(b) requires a supermajority vote to pass such resolution, with certain exceptions relating to use of design-build, to ensure that competitive bidding requirements for public works projects are waived/modified only when absolutely necessary.
Discussion:
VMC Section 2.28.230 does not take into consideration situations where the membership of the City Council consists of fewer than five members as a result of vacancies. Currently, the City Council is comprised of only four members due to a long standing vacancy. As a result, applying a four-fifths vote requirement essentially gives any one Councilmember veto power over a proposed action of the City Council, which outcome is inconsistent with the concept of adding a supermajority requirement in situations where it is necessary to carefully consider and waive or modify the competitive bidding requirements contained in Article IV of the VMC.
To avoid situations where individual Councilmembers are given veto power over the will of a majority of the City Council, it is important to amend the provisions of Section
2.28.230 to allow for a three-fourths vote in situations where there are less than five sitting members of the City Council. Proposed Ordinance No. 2427 (Attachment A) would so amend VMC Subsection 2.28.230(b ), but would not change the requirement for a four-fifths vote in situations where there are five City Councilmembers currently seated (i.e., no unfilled vacancies exist).
By adopting proposed Ordinance No. 2427 to amend Subsection 2.28.230(b) of the VMC, the City Council is ensuring that any resolution adopted to waive/modify competitive bidding requirements for public works projects imposes a voting requirement that avoids giving one Councilmember veto power over the will of a majority of the other Councilmembers, as such was never the intent of the supermajority voting requirement currently in contained in VMC Subsection 2.28.230(b ).
Staff and the City Attorney are available for any questions City Council may have.
Attachments: A. Ordinance No. 2427
B. Changes to VMC 2.28.230(b)
ORDINANCE NO. 2427
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
VICTORVILLE, CALIFORNIA, AMENDING SUBSECTION
2.28.230(b) OF ARTICLE IV OF CHAPTER 2.28 (PURCHASING
SYSTEM) OF THE VICTORVILLE MUNICIPAL CODE TO
MODIFY THE VOTE REQUIREMENT FOR ADOPTING
RESOLUTIONS MAKING FINDINGS AND AUTHORIZING
EXCEPTIONS TO BIDDING REQUIREMENTS IN LIMITED
CIRCUMSTANCES
WHEREAS, the City of Victorville, California ("City") is a municipal corporation and charter city, duly organized under the constitution and laws of the State of California; and WHEREAS, Section 2.28.230 of the Victorville Municipal Code ("VMC") sets out various situations in which the City Council of the City (the "City Council") after reviewing and considering the facts of a particular public works project, may waive or modify the bidding requirements of Article IV of the VMC by finding that any one or more of the seven circumstances listed therein exist; and
WHEREAS, although rarely invoked, such circumstances include, but are not limited to, situations in which:
( 1) The work is of a highly specialized nature;
(2) There would be no competitive advantage to requiring bidding for the contract; (3) The cost of the work would be significantly increased or its completion significantly delayed;
( 4) An emergency, as determined by the City Council exists; and WHEREAS, currently, pursuant to VMC Section 2.28.230(b) such modifications or waivers can only take place upon the City Council adopting a Resolution which sets out the facts and circumstances supporting the finding of necessity for a waiver or modification of the bidding requirements and which Resolution is adopted upon a four-fifths vote; and WHEREAS, the four-fifths vote requirement was to ensure that greater than a simple majority vote would be required under the rare circumstances when a modification or waiver of bidding requirement was necessary, but such four-fifths vote requirement does not take into consideration a situation where the City Council is comprised of less than five City Council members as a result of unfilled vacancies; and
WHEREAS, in situations where there are fewer than five members serving on the City Council, it would follow that a three-fourths vote would still preserve the supermajority requirement while at the same time preventing a situation where one Councilmember would have veto power over a vote pending before the City Council.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF VICTORVILLE DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Recitals.
The recitals set forth above are true and correct and are hereby incorporated by this reference as findings as if set forth in their entirety.
Section 2. Amendment of Victorville Municipal Code Subsection 2.28.230(b) SUBSECTION 2.28.230(b) OF ARTICLE IV OF CHAPTER 2.28 OF THE
VICTORVILLE MUNICIPAL CODE IS HEREBY AMENDED TO READ IN ITS ENTIRETY AS FOLLOWS:
The facts and circumstances supporting the City Council's determination that one or more of the bidding exceptions set forth in this section exempts a public works project from the competitive bidding procedures in this article shall be set forth in ,· a resolution requiring a four-fifths ( 4/5) vote of the membership of the City Council for adoption when there are five sitting Councilmembers, and a three fourths (3/4) vote of the membership of the City Council for adoption when there are fewer than five sitting Councilmembers on the City Council (with the exception of a determination of the applicability of design/build, which shall only require a simple majority vote). Such resolution shall also specify the manner in which such public works project shall be procured (e.g., by negotiated contract, by formal or informal RFP/Q, by seeking written quotations, or such other method as the City Council shall authorize).
Section 3. Repeal of Conflicting Provisions.
All the provisions of the Victorville Municipal Code heretofore adopted by the City Council of the City of Victorville that are in conflict with the provisions of this Ordinance are hereby repealed as of the effective date hereof.
Section 4. Severability.
The City Council declares that, should any provision, section, paragraph, sentence or word of this Ordinance be rendered or declared invalid by any final court action in a court of competent jurisdiction or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences or words of this Ordinance as hereby adopted shall remain in full force and effect.
Section 5. CEQA Exemption.
The City Council finds that the adoption of this Ordinance is not subject to the California Environmental Quality Act ("CEQA") as it is not a project, pursuant to CEQA Guidelines (California Code of Regulations, Title 14, Chapter 3) Section 15378(b)(5) as said ordinance adoption involves a governmental organizational or administrative activity that will not result in direct or indirect changes in the environment.
2 Section 6. Effective Date.
This Ordinance shall take effect thirty (30) days after its final passage.
Section 7. Certification.
The City Clerk of the City of Victorville is hereby directed to certify to the passage and adoption of this Ordinance and to cause it to be published as required by law. 3 CHANGES TO SECTIONS 2.28.230(b) OF ARTICLE IV OF CHAPTER 2.28 OF THE VICTORVILLE MUNICIPAL CODE BY PROPOSED ORDINANCE 2427
2.28.230 - Exceptions to bidding requirements.
(a) The city council, after reviewing and considering the facts of a particular public works project, may waive or modify the bidding requirements of this article by finding that any one or more of the following circumstances exist:
1. Limitations on the source or the scope and nature of the contract are such that no more than one contractor is available to meet the technical specifications and/or quality considerations of the project.
2. The work is of a highly specialized nature.
3. There would be no competitive advantage to requiring bidding for the contract.
4. The cost of the work would be significantly increased or its compJetion significantly delayed.
5. An emergency, as determined by the city council exists. In the event of an emergency, the procedure set forth in section 2.28.240 shall be followed.
6. After making the findings set forth in section 2.28.270, the city council determines that the city's interests would best be served by entering into a negotiated design/build contract for the public project's construction.
7. There exist other specific considerations justifying the waiver of the bidding requirements.
(b) The facts and circumstances supporting the City Council's determination that one or more of the bidding exceptions set forth in this section exempts a public works project from the competitive bidding procedures in this article shall be set forth in a resolution requiring a four-fifths (4/5) vote of the membership of the City Council for adoption when there are five sitting Councilmembers, and a three-fourths (3/4) vote of the membership of the City Council for adoption when there are fewer than five sitting Councilmembers on the City Council (with the exception of a determination of the applicability of design/build, which shall only require a simple majority vote). Such resolution shall also specify the manner in which such public works project shall be procured (e.g., by negotiated contract, by formal or informal RFP/Q, by seeking written quotations, or such other method as the City Council shall authorize).