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R-00-1152• • CITY OF CLERMONT RESOLUTION NO. 1152 C A RESOLUTION OF THE CITY OF CLERMONT, LAKE COUNTY, FLORIDA, ADOPTING A COMMUNITY DEVELOPMENT BLOCK GRANT PURCHASING POLICY WHEREAS, the City Council of the City of Clermont in conjunction with the filing of a Community Development Block Grant application with the Department of Community Affairs finds it necessary to adopt a C.D.B.G. Purchasing Policy; and WHEREAS, the City Council has examined the C.D.B.G. Purchasing Policy and found that a C.D.B.G. Purchasing Policy is necessary; and WHEREAS, the C.D.B.G. Purchasing Policy, is identified in Attachment "A", attached hereto and by reference made a part hereof; NOW THEREFORE BE IT RESOLVED by the City Council of the City of Clermont, Florida, that the C.D.B.G. Purchasing Policy as shown in Attachment "A", is hereby approved and adopted. THIS RESOLUTION shall take effect upon its passage and adoption in the manner provided by law. DONE AND RESOLVED BY THE CITY COUNCIL OF THE CITY OF CLERMONT, LAKE COUNTY, FLORIDA THIS 22°d DAY OF AUGUST, 2000. ~~ Harold S. Turville, Jr., Mayor Attest: eph Van Zile, Cit erk FrUG-16-00 12:14 PM FREDF@XENT 9@43484 F.03 Section 4.04 COMPETITIVE_SEALED $IDDTNG • A. Conditions For Use. All contracts for purchases of a single item, services or aggregate in excess of the established base amount for Competitive Sealed Bide/Proposals in Section 4, where price, not qualifications, is the basis for contract award, shall be awarded by competitive sealed bidding. B. Invitation to Bid. An invitation to bid shall be issued and shall include specifications, all contractual teXme and conditions, and the place, date, and time for opening or submittal. No later than five working days prior to the date for receipts of bids, a vendor shall make a written request to the City for interpretations or corrections of any ambiguity, inconsistency or error which the vendor may discover. All interpretations or corrections will be issued as addenda. The City will not be responsible for oral clarifications. No negotiations, decisions or actions shall be initiated yr executed by the proposer as a result of any discussions with any City employee prior to the opening of proposals. Only those communications which are in writing from the City may be considered as a duly authorized expression on the behalf of the Council. Also, only communications from firms or individuals which are in writing and signed will be recognized by the Council as duly authorized expressions on behalf of proposers. (1) Alternate (s1. Alternate bids will not be considered unless authorized by and defined in thv Special Conditions of the bid specifications. (2) Anproyed Equivalents. The City reserves the right to determine acceptance of item{s) as an approved equivalent. side which do not comply with stated requirements for equivalents in the bid conditions are subject to rejection. Ths procedure for acceptance of equivalents shall be included in the general conditions of the bid. C. Public Notice. Public notice shall be by publication in a newspaper of general circulation at least twelve (12j working days prior to bid opening. Notice of the Invitation to Bid shall give date, time, and place set forth for the submittal of proposals and opening of bids. D. Bid Opening. Bids shall be opened publicly. The Purchasing Officer or his designee shall open the bids in the presence of one or more witnesses at the time and place designated in the Invitation to Bid. The amount of each bid, and other ouch relevant information as may be deemed appropriate by the Purchasing Officer together with the name of each bidder, and all witnesses shall be recorded. The record (Bid Report) and each bid shall be open to public inspection. E. Hid Acceptance and Evaluation. Bids shall be unconditionally acc.pted without alteration or correction, except as authorized in this policy. • AU,G-16-00 12: 15 Pt'1 FR~FOXENT 90432484 P. 04 Bide shall be evaluated based on the requirements set forth in the Invitation to Bid, which may include, but not be limited to criteria to determine acceptability such as; inspection, testing, quality, recycled or degradable materials content, workmanship, delivery, and suitability for a particular purpose. Those criteria that will effect the bid price and be considered in evaluation for award shall be objectively measured, such as discounts, transportation costs, and total or life cycle costs. No criteria may be used in bid evaluation that are not set forth in the Invitation to Bid, in regulations, or in this policy. F. Bid Agenda Item. After evaluation, the purchasing Officer will prepare a recommendation and shall place the item on the agenda of the City Council. G G. -Correction or Withdrawal of Bids; Cancellation of Awards. Correction or withdrawal of inadvertently erroneous bids before or after award, yr cancellation of awards or contracts based on such bide mistakes, shall be permitted where appropriate. Mistakes diacovez'ed before bid opening may be modified or withdzawn by written or telegraphic notice received in the office designated in the invitation to Bid prior to the time set for bid opening. After bid opening, corrections in bide shall be permitted only to the extent that the bidder can show by clear and convincing evidence that a mistake, of a non-judgemental character was made, the nature of the mistake, and the bid Brice actually intended. After bid opening, no changes in the bid price or other provisions of bids prejudicial to the interest of the Gity or fair competition shall be permitted. In lieu of bid correction, a low bidder alleging a material mistake of fact may be permitted to withdraw his bid if: (1} the mistake ie clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or (2) the bidder submits evidence which clearly and convincingly demonstrates that a mistake was made. All decisions to permit the correction or withdrawal of bids or to cancel awards or contracts based on bid mistakes shall be supported by a written determination made by the Purchasing Officer. K. Multi-Step Sealed Bidding. When it is considered impzactical to initially prepare a purchase description to support an award based on price, an invitation for bide may be issued requesting the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been determined to be technically acceptable under the criteria set forth in the first solicitation. I. Award. The contract shall be awarded with reasonable promptness to the lowest responsible and responsive bidder whose bid meets the rvquiremarits and criteria set forth in the invitation to bid. The City reserves the right to waive any informality in bids and AU.G-16-00 12:16 Pt1 FR~FOXENT 9043484 P_ 05 to make an award in whole or in part when or both conditions are in the best interest of the City of Clermont. Any requirement which is waivered must be documented and•kept in the file. (1) oti of ended d. The contract shall be awarded by written notice. Every procurement of contractual services shall be evidenced by a written agreement. Notice of intended award, including rejection of some or all of bide received, may be given by posting the bid tabulations where the bide were opened, by telephone, by first class mail, yr by certified United States mail, return receipt requested, whichever is specified in bid solicitation. A vendor may request, in their bid submittal, a copy of the tabulation sheet to be mailed in a vendor provided, stamped self- addreseed envelope for their record. (2) Notice of Right to Protest. All notices of decision or intended decisions shall contain the statements "Failure to file a protest within the time prescribed in Section 4.08 of the CDBG Furchasing Policy of the City of Clermont ohall, constitute a waiver of proceedings under that section of this policy. • J. Cancellation of Invitations for Bids. An invitation for bide or other solicitation may be cancelled, or any or alI bids may be rejected in whole or in part when it is in the be$t interests of the City, as determined by the Council. Notice of cancellation shall be sent to all businesses solicited. The notice shall identify the solicitation, explain the reason for cancellation and, where appropriate, explain that an opportunity will be given to compete on any resolicitation or any future procurement of similar items. x. D~sc~ua 'fication of vendors For any specific bid, vendors may be disqualified by the Purchasing Director, Purchasing Officer, for the following reasonss (1) Failure to respond to bid invitation three consecutive times within the last eighteen (18) months period. (2) Failure to update the information on file including address, project or service, or business description. (3) Failure to perform according to contract provisions. (4) Conviction in a court of law of any criminal offense in connection with the conduct of business. (5) Clear and convincing evidence of a violation of any federal or state anti-trust law based on the submission of bids or proposals, or the awarding of contracts. (6) Clear and convincir-q evidence that the vendor has attempted to give a City employee a gratuity of any kind for the purpose of influencing a recommendation or decision in connection with any part of the City's purchasing activity. (7) Failure to execute a Pub11c Entity Crimes Statement as raquirad by Florida Statutes Chapter 287.133(3)(a). (8) Other reasons deemed appropriate by the City. • AUG-16-00 12:16 Pt1 FR~FOXENT 9043484 P.06 Section x.05 COMPETITIVE SEALED PROPOSALS • All contracts for purchases of a single item or services or aggregate in excess of the established base amount for Competitive Sealed BidslProposals in Section 4, where qualifications, not price, is the basis for contract award, shall be awarded by competitive sealed proposals. All contracts for the procurement of professional architecture]., engineering, landscape architectural, and land surveying services will be awarded according to the provisions of Section 4.052. All other contracts required to be awarded by competitive sealed proposals will be awarded according to the provisions of Section 4.052. Section 4.051 PROFESSIONAL ARCHITECTURAL. ENGINEERI,~TG. L.j-NDSCAPS ~HITECTURAL, AND LAND SURVEYING SERVICES A. public Announcements It is the policy of the City to publicly announce all requirements far professional architectural, engineering, landscape architectural, and land surveying services and to negotiate such contracts on the basis of demonstrated competence and qualifications at fair and reasonable prices. In the procurement of such services, the City may require firms to submit a statement of qualifications, performance data and other related infoxznation for the performance of professional services. • (1} ,Scope of Project Rea~rements. Prior to submission of the request for proposals for professional services ae an agenda item for ~-pproval by the Council, the Purchasing Officer shall submit to the City written project requirements indicating the nature and scope of the professional services needed, including but not limited to the following: {a) the general purpose of the service or study; (b) the objectives of the study or service; (c) estimated poriod of time needed for the service or the study; . (d) the estimated cost of the service yr study; (e) whether the proposed study or service would or would not duplicate any prior or existing study or service; {f) list of current contracts or prior services or studies which are related to the proposed study or service; (g) the desired qualifications, listed in order of importance, of the person or firm applicable to the scope and nature of the services requested. {2) Distribution of Project Requirementsi The Purchasing Officer shall distribute the written project requirements as agproved by the City Council to all persons on the mailing list who have indicated an interest in being considered for the performance of Such professional services and to any additional persons as the Purchasing Officer or using agency deems desirable. The written project requirements shall include a statement of the relative importance of each of the requirements. The project requirements shall be accompanied by an Invitation to 5 AIJG-16-00 12:11 Pf1 FREpFOXENT 90432484 P.07 such persona to submit an indication of interest in performing the required services, and by notification of the date and time when such indicativna of interest are due. This date shall not be lase than fourteen calendar days from the date of public notice when the Purchasing Officer shall publish in at least one newspaper of wide general circulation in the region. (3) MQ~~cation Prohibition. After the publicized submission time and date, indications of interest shall not be modified or allowed to be modified in any manner except for correction of clerical exrvra or other similar minor irregularities as may be allowed by the Selection Committee (defined in Section 4.051B) prior to making its selection of those best qualified to be formally interviewed. (4) $guae of Exiatina Plans. There shall be no public notice requirements or utilization of•the Selection process as provided in this section for projects in which the City is able to reuse existing plans from a prior project. Aowever, public notice of any plane which are intended to be reused at Some future time shall contain a statement which provides that the plans are subject to reuse. • B. Selection Committee Membership and Evaluation, Depending on the expected complexity and expense of the professional services to be contracted, the City may determine whether a three member or five member Selection committee will best Serve the needs of the Council. {1) Three Member Committee Composit,~on• Membership of a three- member selection committee shall be appointed by the City Council. (2~ Five Member Committee Composition. Membership of a five member selection committee shall be appointed by the City Council. (3) Selection Committee Ev~~uation. Only written responses of et~atements of qualifications, performance data, and other data received in the purchasing office by the publicized submission time and date shall be evaluated. Only those respondents who axe determined to be best qualified based upon the evaluation of written responses and selected far formal interview may submit additional data. From among those persons evidencing, by timely submission of written responses, an interest in performing the services the Selection Committee shall: (a) prepare an alphabetical list of those persona determined by the selection Committee to be qualified, interested and available; and (b~ designate nv loss than three persons on the alphabetical list considered by the Selection Committee to be best AVG-16-00 12:17 PM FREDFOXENT 9043484 P.08 qualified to perform the work required. . (4) Shortlistinq. The best qualified respondents shall be based upon the Selection Committee's ability to diffezentiate qualifications applicable to the scope and nature of the services tv be performed. The Selection Committee shall determine qualifications, interest and availability by reviewing the written responses that express an interest in preforming the services, and by conducting forma3 interviews of nv less than three selected respondents that are determined to be best qualified based upon the evaluation of written responses. The determinations may be based upon, but not limited to, the following considerations: (a) competence, including technical educational and training, experience in the kind of project to be undertaken, availability of adequate personnel, equipment and facilities, the extent of repeat business of the persons, and where applicable, the relationship of construction cost estimates by the person to actual cost on previous projects; (b) current work load; (c) financial zeaponsibility; (d) ability tv observe and advise whether plane and specifications are being complied with, where applicable; (e) record of professional accomplishments; (f) proximity to the project involved, if applicable; (q) record of performance; and {h) ability to design an approach and work plan to meet the project requirements, where applicable. (5) Interview and Council Approval. After conducting the formal interviews, the Selection Committee shall list those respondents interviewed in order of preference based upon the con'aiderationa listed in subsection {4) above. The respondents so listed shall be considered to be the moat qualified and shall be listed in order of preference starting at the top of the list. The list of best qualified persona shall be forwarded to the Council for approval prior to beginning contract negotiations. Negotiation sequence shall be based on the order of preference. C. Negotiation Staff. Contract negotiations shall be conducted by the Purchasing Officer unless the Council President directs that negotiations be conducted by a Negotiation Committee. Negotiation. The Purchasing Officer or the Negotiation Committee shall negotiate a contract with the firm considered to be the most qualified to provide the services at compensation and upon terms which the Purchasing Officer or the Negotiation Committee determines to be fair and reasonable to the City. In making this decision, the Purchasing Officer or the Negotiation Committee shall takes into account the estimated value, the scope, the • AU,G'16-@0 12:18 PM FR~@XENT y0432~83 P_Hy complexity, and the professional nature of the services to be rendered. As a part of the negotiation, the Purchasing Officer oz • the Negotiation Committee shall conduct a cyst analysis, including evaluation of profit, based on a cost breakout by the firm of its proposed price. Should the Purchasing Officer or the Negotiation Committee be unable to negotiate a satisfactory contract with the firm considered to be the moat qualified, negotiations with that firm shall be formally terminated. The Purchasing Officer or the Negotiation Committee shall then undertake negotiations with the second most qualified firm. Failing sccord with the second most qualified firm, the Purchasing Officer or the Negotiation Committee shall formally terminate negotiations, and then shall undertake negotiations with the third most qualified firm. Should the Purchasing Officer or the Negotiation Committee be unable to negotiate a satisfactory contract with any of the selected firms, the Selection Committee shall select additional firms in order of their competence and qualifications, and the Purchasingq Officer or the Negotiation Committee shall continue negotiations in accordance with this section until an agreement is reached or until a determination has been made not to contract for services. Section x.052 OTHER OMPETITIVE SEALED PROPOSALS tnon-287.055 services1 A. Conditions for Use. All contracts required by Section 5.05 to be awarded by competitive sealed proposals that are not for the procurement of professional architectural, engineering, landscape architectural, and land surveying services, will be awarded according to the provisions of this section. • B. Consultant's Co~etitiye Neaotiation Act. Professional services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered land surveying, as defined under the Consultant's Competitive Negotiation Act {Section 287.055, Florida Statutes), shall be secured under the provisions of Section 4.051. C. Council AD~roval. Proposals anticipated to exceed the threshold established in Section 4 for Competitive sealed Proposals shalt be approved by the City of Clermont prior to solicitation. D. Public Notice. Adequate public notice of the Request for Proposals shall be given in the came manner as provided in subsection 4.04C of this policy for competitive sealed bidding. E. Evaluation Factors. The Request for Proposals shall state the relative importance of criteria outlined in the scope of services, fee proposal, and other evaluation. F. Proposal Cancellation or Postponement. The Purchasing Officer may, prior to a proposal opening, elect to cancel or postpone the date and/vr time for proposal opening or submission. G. Revisions and Discussions with Resvonsible Offerors As provided in the Request for Propooala, and under regulations promulgated by AuG-16-©@ 12:19 PM FR~FOXENT 9@432484 P.10 the City Council of the City of Clermont, discussions may be conducted with responsible offerors who submit proposals determined to be qualified of being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and such revisions may be permitted after submissions and prior to award for the purpose of obtaining the best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors. The Purchasing Officer shall prepare a written summary of the proposals and make written recommendation of award to the City Council. As a part of the recommendation, the Purchasing Officer shall conduct a coat analysis, including evaluation of profit, based on a coat breakout by the firm of its proposed price. H. Award. Award shall be made by the Board of City Commissioners to the lowest responsible offeror whose proposal is determined in writing to be the most advantageous to the City of Clermont, taking into consideration the evaluation factors set forth in the Request for Proposals. No other factors or criteria shall be used in the evaluation criteria that is not included in the Request for Proposal. Section 4.06 80LE SOURCE PURCHASES A. Sole Source Certification. A contract may be awarded for a supply, service, material, equipment or construction item{a) without competition when the Purchasing Officer with the concurrence of the City Manager, certifies in writing after conducting a good faith review of available Qvurces, that theta is only one available source for the required material, supply, service equipment, or construction item(s). Such awards will be made within the authorized procurement limits. When a purchase exceeds five thousand dollars {55,000.00), the item will be placed on the agenda for Council approval and clarification that the vendor has been determined to be a sole source. When a purchase exceeds {SZ5,000) it will require prior DCA approval. B. 8dditional Purchases From Certified_Sole Source. The Purchasing Officer may be authorized, after initial sole source certification, to make additional purchases from a sole source vendor for not less than one year or until such time a contrary evidence is presented regarding sole source eligibility, whichever period is leas. motion d.07 COOPERATIVE PURCHASING A. State Contract:. The Purchasing Officer is authorized to purchase goods or services for any dollar amount from authorized vendors listed on the respective state contracts of the Department of General Services, subject otherwise to the requirements of this • AIJG-16-00 12:19 PM FR~FOXE~IT 9043484 policy. P_ 11 . B. Other Governmental Units. The Purchasing Officer shall have the authority to join with other units of government in cooperative purchasing ventures when the best interest of the City would be served thereby, and the same is in accordance with this policy and with City and State Law. Section 4.08 SID PROTEST A. Righ to Protest. Any actual prospective contractor who is aggrieved in connection award of contract may protest to the City shall seek resolution of their complaints purchasing Officer and secondly with the pzatestinq to the City Council. bidder, offeror, or with the solicitation or Council. Pzotesters initially with the ~ity Manager prior to B. Filing a Protest. Any person who is effected adversely by the decision or intended decision of the City shall file with the Purchasing Officer a notice of protest in writing within 72 hours after the posting of bid tabulation or after receipt of the notice of intended decision and file a formal written protest within 10 calendar days after the data he/she filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this Section. A written protest is filed with the city when it is delivered to and received in the office of Purchasing Officer. 1. The notice of protest shall contain at a minimum: the name of the bidder; the bidders address and phone number; the name of the bidder's representative to whom notices may be sent; the name and bid number of the solicitation; and a brief factual summary of the basis of the protest. Z. The formal written protest shall: identify the protestant and the solicitation involved; include a plain, clear statement of the gzvunds on which the protest is based; refer to the statutes, laws, ordinances, or other legal authorities which the protestant deems applicable to such grounds; and specifically request the relief to which the protestant deems himself entitled by application of such authorities to such grounds. 3. The protestant shall mail a copy of the notice of protest and the formal written protest to any person with whom he/she is in dispute. C. Settlement and Resolution, The Purchasing Officer shall, within 14 days of the formal written protest, attempt to resolve the protest prior to any proceedings arising from the position. Provided, however, if each settlement will have the effect of dettrmininq a substantial interest of another party or buaineBe, such settlement must be reached in the course of the proceedings provided herein. 10 • AUG-16-00 12:20 Pf4 FR~FOXENT 90432484 P. 12 D. Protest Proceedincls. If the protest cannot be resolved by mutual • agreement, the Purchasing Officer shall conduct or designate another to conduct a protest proceeding pursuant to the following procedures: • (1) Prvteet Proceeding Procedures. (a) The presiding officer shall give reasonable notice to all substantially affected persons or businesses. Otherwise petitions tv intervene will be considered on their merits as received. (b) At or prior to the gratest proceeding, the protestant may submit any written or physical materials, objects, statements, affidavits and arguments which he/she deems relevant to the issues raised. (c) In the proceeding, the protestant, or his representative or counsel, may also make an oral presentation of his evidence and arguments. However, neither direct nor cross examination of witness shall be permitted, although the presiding officer may make whatever inquiries helehe deems pertinent to a determination of the protest. (d) The judicial rules of evidence shall not apply and the residing officer shall base his/her decision on such information given in the couzse of the proceeding upon which reasonable prudent persona rely in the conduct of their affairs. {e) Within seven (7) working days of the conclusion of the proceeding, the presiding officer shall render a decision which sets forth the terms and conditions of any settlement reached. Such decision of the presiding officer shall be conclusive as to the recommendation to the City Council. (f) Any party may arrange for the proceedings to be stenographically recorded and shall bear the expense of such recording. (2) Intervenor. The participation of intervenors shall be governed by the terms of the order issued in response tv a petition to intervene. (3) Time Limits. The time limits in which protests must be filed as provided herein may be altered by specific provisions in the invitation for bids or request for proposals documents. (4) Entitlement to Costs. In no case will the protesting bidder or offeror be entitled to any costs incurred with the solicitation, including bid preparation costs and attorney's fees. E. Stav of Procuzement During Pro~,asts. In the event of a timely protest under Subsection A of this Section, the Purchasing Officer shall not proceed further with the solicitation or award of the contract until all administrative remedies have been exhausted or unless the City Council makes tt determination that the award of a 11 AllG-16-@0 12:21 PM FR~F@XENT 9@432484 P_ 13 contract without delay is necessary to protect the substantial interests of the City. Section 4.09 CONTRACT CLAIMS A. ~i~thority o~ the Purchasing Officer to Settle Bid Protests and Contract Claims. The Purchasing Officer ie authorized to settle any protest regarding the solicitation or award of a City contract, or any claim arising out of the performance of a City contract, prier to an appeal to the City Council or the commencement of an action in a court of competent jurisdiction, but may not settle any such protest or claim for consideration of 51,000.00 or greater in value without prior approval of the City Council. B. Decision of the PL~rchasina Officer. All claims by a contractor against the City relating to a contract, except bid protests, shall be submitted in writing to the Purchasing Officer for a decision. The contractor may request a conference with th® Purchasing Officer on the claim. Claims include, without limitation, disputes arising under a contract, and those based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission. C. ~jotice to the Contractor of ~h~urchaainq Officer's Decision The decision of the Purchasing officer shall be promptly issued in writing, and shall be immediately mailed or otherwise furnished to the contractor. The decision shall state the reasons for the . decision reached, and shall inform the contractor of his appeal rights under Subsection D of this Section. D. F'inali y of the Purchaeinq_Officer Decisions Contractor's Right to eel. The Purchasing Officer's decision shall be final and conclusive unless, within 10 calendar days from the date of receipt of the decision, the contractor files a notice of appeal with the City Council. E. Failure to Render Timely Decision. If the Purchasing Officer does not issue a written decision regarding any contract controversy within fouzteen calendar days after receipt of a written request for a final decision, or within such longer period as may be agreed upon between the parties, then the aggrieved party may proceed as if an adverse decision had been issued. Section 4.10 REMEDIES FOR SOLICITATIONS OR AWARD5 IN VIOLATION OF LAW A. Frier to Bid Onenincs o~ Closina Date for_~~ceipt o~_Proeosals. If prior to the bid opening or the closing date for receipt of propoe~als, the Purchasing Officer after consultation with the City Attorney, determines that a solicitation is in violation of federal, state, or local law or ordinance, then the solicitativn shall be cancelled or revised to comply with applicable law. Z2 s AUG-16-00 12:21 PM FR~OXENT 90432484 P.14 H. Prior to Award. Xf after bid opening or the ciosinq date for . receipt of proposals, but prior to the award contract, the Purchasing Officer after consultation with the City Attorney, determines that a solicitation or a proposed award of a contract is in violation of federal, state, or municipal law or ordinance, then the solicitation or proposed award shall be cancelled. C. After A~r(}rd. If, after award, the purchasing Officer after consultation with the City Attorney, determines that a solicitation or award of a contract was in violation of applicable law or ordinance, then: {1) if the parson awarded the contract has not acted fraudulently or in bad faith: (a) the contract may be ratified and affirmed, provided it is determined that dying so is in the beet interest of the City; or (b) the contract may be terminated and the person awarded the contract shall be compensated for actual costs reasonably incurred under the contract plus a reasonable profit, but excluding attorney's fees, prior to termination; yr (2) if the person awarded the contract hoe acted fraudulently or in bad faith the contract may be declared null and void or voidable, if such action is in the best interests of the City. Section 5 CONTRACT ADMINISTRATION Section 5.1 CONTRACT FROVISIONS A. Standar Contract Clauses and Their Modification. The City after consultation with the City Attorney, may establish standard contract clauses for use in City contracts. However, the Purchasing Officer may, upon consultation with the City Attorney, vary any such standard contract clauses for any particular contract. B. Contract Clauses. All City contracts for supplies, services, and construction shall include provisions necQSSary to define the responsibilities and rights of the parties to the contract. The Purchasing Officer after consultation with the City Attorney, may propose provisfona appropriate for supply, service, or construction contracts, addressing among others the following subjects: {1) the unilateral right of the City to order, in writing, changes in the work within the scope of the contract; (Z) the unilateral tight of the City to ord®r in writing temporary stopping of the work or delaying performance that doe• not alter the scope of the contract; (3) variations occurring between estimated quantities or work in 13 AUG-16-0@ 12:22 PM FR~OXENT 9@43 484 P.I5 contract and actual quantities; (4) defective pricing; • {5) time of performance and liquidated damages; (6) specified excuses for delay or nonperformance; (7} termination of the contract for default; (.8) termination of the contract in whole oz in part for the convenience of the City; (9) suspension of work on a construction project ordered by the City; (10) site conditions differing from those indicated in the contract, or ozdinarily encountered, except that a differing site conditions clause need not be included in a contract; (a) when the contract ie negotiated; (b) when the contractor provides the site or design; or (c) when th4 parties have otherwise agreed with respect to the risk of differing site conditions; (11) value engineering proposals; (12) remedies; {l3) access to records/retention records; (14) environmental compliance; and (15} prohibition against contingency fees. (16) insurance to be provided by contractor coverlnq employee, property damage, liability and other claims, with requirements of eertificatea of insurance a»d cancellation clauses. (17) bonding requirements as set by the City Council. (16) causes of and authorization for suspension of contract for improper contractor activity. • Section 5.2 PRICE ADJUSTMENTS A. Metho ds of Price Adiuatment. Adjustments in price during the term of a contract shall be computed in one oz more of the following ways upon approval by the City: (1) by agreement on a fixed price adjustment before commencement of the pertinent performance or as soon thereafter as pzacticable; (2) by unit prices specified in the contract or subsequently agreed upon; (3} by Costs attributable to the events or situations under ouch clauses with adjustment of profit or fee, all as specified in the contract or subsequently agreed upon by the City; (4) in such other manner as the contracting parties may mutually agree; or (5) in the absence of agreement by the parties, by a unilateral determination by the City of the costs attributable to the events or situations under such clauses with adjustment of profit or fee as computed by the City, subject to the provisions of this Section. 8. Cost or Prici~a Data Required. A contractor shall be required to submit cost or pricing data if any adjustment in contract price is subject to the provisions of this Section. 14 • Al;1G-16-00 12:22 PM FR~FOXENT 90432484 P. 16 Section 5.3 CHANGE ORDERSICONTRACT AMENDMENTS • Change orders and contract amendments, which provide for the alteration of the provisions of a contract may be approved by an appropriate person based upon the dollar value of the change or amendment. The purchasing categories thresholds designated in Sections 4.01 shall govern the appropriate level of approval. $oction 5.4 ASSIGNMENTS OF CONTRACTS No agreement made pursuant to any section of this policy shall be assigned yr sublet as a whole yr in part without the written consent of the City nor shall the contractor assign any monies due or to become due to the contractor hereunder without the previous written consent of the City. • • 5ec~on 5.S RIGHT TO INSPECT PLANT The City may, at its discretion, inspect the part of the plant or place of business of a contractor or any subcontractor which is related to the performance of any contract awarded, or to be awaz'ded, by the City. The right expressed herein shall be included in all contracts or subcontracts that involve the performance of any work or service involving the City. Section 6 RIGHTS OF CITY OUNCIL Nothing in this policy shall be deemed to abrogate, annul, or limit the right of the Council, in the best interests of the City, to reject all bids received in response to a request, to determine in its sole discretion the reaponsivenese and responsibility of any bidder, to approve and authorize or to enter into any contract it deems necessary and desirable for the public welfare, or to vary the requirements of the Policy in any instance when desirable for public good. Section 7 CITY PROCUREMENT RECORDS A. Contract File. All determination$ and other written records pertaining to the solicitation, award, or performance of a contract shall be maintained for the City in a contract file. B. ention Pr cur meat R cords. All procurement records shall bs retained and disposed of by the City in accordance with records retention guidelines and schedules established by the State of Florida. Section 8 SPECIFICATIONS Section 8.1 MAX LMUM PRACTICABLE COMPETI~ON All specifications shall be drafted to promote overall economy and encourage competition in satisfying the City needs and shall not be unduly restrictive. The policy applies to all specifications including, but not limited to, those prepared for the City by architects, engineers, de6igners, and draftsmen. Section 8.2 USE OF BRAND NAME OR EQUIVALENT S ECIFICATIONS A. Use. Brand name or equivalent specifications may be used when the 15 AUG-16-00 12:23 PM FR~ OXENT 90432484 P_17 Gity determines that: . (1) no oth®r design, performance, or qualified product list is available; (2} times dues not permit the preparation of another form of purchase description, not including a brand name specification; (3) the nature of the product or the nature of the City requirements makes use of a brand name or equivalent specification suitable for the procurement; or (4) use of brand name or equivalent specification is in the City's best interest. B. Designation of Several Brand Names. Brand name or equivalent specifications shall a®ek to designate three, or as many .different brands as are practicable, as "or equivalent" references and shall further state the substantially equivalent products to those designated may be considered for award. C. Required Characteristics. The brand name or equivalent specifications shall include a description of the particular design, functional, or performance characteristics required. D. Nonrestrictive Use of Srand Name or Equivalent Specifications. Where a brand name or equivalent specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition. E. Determination of Equivalents Any prospective bidder may apply, in writing, for a pre-bid determination of equivalence by the Purchasing Director. If sufficient information is provided by the prospective bidder, the Purchasing Director may determine, in writing and prior to the bid opening time, that the proposed product would be equivalent to the brand name used in the solicitation. F. proposing the manuf and model purposes Section $.3 tions of Equivalents required for Bid submittal. Vendors equivalent products must include in their bid submittal acturer's sgecificationa for those products. Brand names numbers are used for identification and reference only. BRAND NAME SPECIFICATIONS A. IJae_of Srand Name Specifications. Since the use of a brand name specification is restrictive of product competition, it may be used only when the Purchasing Director makes a determination that only the identified brand name item or items will satisfy the City needs. H. CQg{petition. The Purchasing Director shall seek to identify sources from which the designated brand name item or items can be 16 AUG-16-00 12:23 PM FREDFOXENT 90432484 P.18 obtained and shall solicit such sources to achieve whatever degree of price competition ie practicable. If only one e~aurce can supply the requirement, the procurement shall be made under Section 4.10, Sole Source Purchases. U action 9 ETHICS IN PUBLIC CONTRACTING Section 9.1 CRIMINAL PENALTIES To the extent that violations of the ethical standards of conduct set forth in this section constitute violations of the State Criminal Cade they shall be punishable ae provided therein. such penalties shall be in addition to civil sanctions set forth in this part. Section 9.2 EMPLOYEE CONFLICT OF INTEREST A. Participation. It shall be unethical for any City employee, officer or agent to participate directly or indirectly in a procurement or administration of a contract. A conflict of interest would arise when: (1} the City employee, officer or agent; (2} any member of his immediate family; (3) his or her partner; or (4} an organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected far award. The officers, employees or agents will neither solicit nor accept gratuities, favozs or anything of monetary value from contractors, potential contractors, or parties to subagreements. B. Blind Trust. A City employee, officer or agent oX any member of their family wha holds a financial interest in a disclosed blind trust shall not be deemed to have a conflict of interest with regard to matters pertaining to that financial interest. Section 9.3 CONTEMPORANEOUS EMPLOYMENT PROHIBITED It shall be unethical for any City employee who is participating directly or indirectly in the procurement process to become or to be, while such a City employee, the employee of any person Contracting with the City of Clermont. Section 9,4 USE QF CONFIDENTIAL INFORMATION It shall ba unethical for any employee knowingly to use confidential information for actual or anticipated personal gain, or for the actual or anticipated personal gain of any other person. Section 9.S GRATUITIES AND XICI(BACKS A. Gratnitiea. It shall be unethical for any person to offer, give, or agree to give any City employee, officer oz agent or any City employee, officer or agent to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, rocommendation, or preparation of any part of a program 17 AUG-16-0@ 12:24 PM FR~F@XENT 9@4324$4 P.19 requirement or a purchase request, influencing the content of any specification or procurement standard rendering of advise, investigation, auditing, or performing in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, subcontract, or to any solicitation or proposal therefor. B. Kickbacks. It shall be unethical for any payment, gratuity, or offer of employment to be made by or behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor or any person associated therewith, ae an inducement for the award of a subcontract oz order. C. Contract Clause. The prohibition against gratuities end kickbacks prescribed in this section shall conspicuously set forth in every contract and solicitation therefor. Section ~.6 SANCTIONS A. ~gloyee Sanctions Upon violation of the ethical standards by an employee, officer or agent the City, or other appropriate authority may: {1) impose one or more appropriate disciplinary actions as defined in the City Personnel Aules and regulations, up to and including termination of employment; and {Z) may request investigation and prosecution. B. Non-employee Sanctions. The Council may impose any one or more of the following sanctions on a non-employee for violation of the ethical standards: (1) written warnings; (2} termination of contracts; or (3) debarment or~suspension as provided in Section 15. Section 9.7 RECOVERY OF VALUE TRANSFERRED pR RECEIVED IN 9~~ACH OF ETHICAL BTANDARDS A. General Provisions. The value of anything being transferred or received in breach of the ethical standards of this policy by a City employee or non-employee may be recovered from both City employee and non-employee. 8. Recoverv of Kickbacks by the City Clermont. Upon a showing that a subcontractor made a kickback to a prime contractor or a higher tier subcontractor in connection with the award of a subcontract or order thereunder, it shall be conclusively presumed that the amount thereof was includtd in the price of the subcontract or order and ultimately borne by the City and will be recoverable hereunder from the recipient. In addition, that amount :say also be recovered from the subcontractor making such kickback. Recovery from one offending party shall not preclude recovery from other offending parties. 18 • AUG-16-@0 12:25 PM FR~FOXENT 9©432484 P'-2Q Section 10 FEDERAL POLICY NOTICE • Sectj',o~r 10.1 PAT~N2S If a contract involving research and development, experimental, or demonstration work is being funded in whole yr in part by assistance from a federal agency, then the contract shall include the following provisions: A. Notice To Contractor. The contract shall give notice to the contractor of the applicable grantor agency requirements and regulations concerning reporting of, and xi,ghts to, any discovery or invention arising out of the contract. B. ~lotice By Contractor. The contract shall require the contractor to include a similar prevision in all subcontracts involving research end development, experimental, or demonstration work. Section 10.2 NOTICE OF FEDERAL_PUHLIC POLICY REQUIREMENTS A. Applicability. If the contract is being funded in whole or in part by assistance from any federal agency, the contract is subject to one or more federal public policy requirements such as: (1) equal employment opportunity; (2) affirmative action; (3) fair labor standards; (4j energy conservation; (5) environmental protection; or (b) other similar socio-economic programs. B. Not ce. Ths Purchasing Director shall includo in the contract all appropriate provisions giving the contractor notice of these requirements. Where applicable, the Purchasing Director shall include in the contract provisions the requirement that the contractor give similar notice to all of its subcontractors. Section 11 PAY NT TO VENDORS All payment to vendors shall also in accordance with the amended "Prompt Payment Act", Chapter 89-297, Florida Statutes. Section 12 MZ QRITY BUSINESS ENTERPRISE PARTICIPATION PROGRAM A. ~urnoee an ~coDe. The purpose of the Minority Business Enterprise Program is to enhance the participation of qualified minority and women-owned businesses in providing goods and services and construction contracts required by the City Council. This program describes procedures to accomplish this purpose and to monitor and evaluate progress. All Department and Di,visivna under the jurisdiction of the City Council are responsible for implementing this program. B. Folicv Statement (1) It i9 the policy goal of the City that two percent (2~) of 19 AEG-16-@0 12:25 PM FREDFOXENT 9@43484 P_21 the Council approved procurement as contained with both operating and capital improvement budgets (exclusive of in- . house services and construction} shall be identified and let through the competitive bid process to minority and women businesses or persons. The program is based on an in-depth evaluation of all actual ae well as projected procurement (CIPs, equipment, commodities and services} and on the availability of minority and women owned businesses in the market place. Procurement identified to establish a base for this program are not limited to those items only. This evaluation is the main factor in building a realistic program with attainable targets. (2) All department and divisions under the jurisdiction of the City Board of Council Persons are responsible for implementing this program and for making every reasonable effort to utilize MBEs and WBEs when opportunities are available. The Purchasing Officer will take the lead role in this process by taking active steps to encourage minority or women owned businesses. (3) Regarding the implementation of this policy, it is the Council's intent to foster economic development in the City's area by establishing its MHE goals based on availability of minority and women-owned businesses located within the City. This is no way intended to limit or restrict competition. Rather, availability of area companies will be used to guide MBE goals. Such geographical preference may be adjusted, amended or repealed by the City Council, with or without a public hearing, as deemed necessary. • C. De inition. Minority Business Enterprise (MBE} as used herein, means a business that is owned and controlled at least 51$ by one or more minority persons (MBE) or by one or more women (WEB} and whose management and daily operations are controlled by one or mare such persons. D. Administrative Responsibilities. The Purchasing Officer is responsible for the coordination of the Minority Business Enterprise Program and registration. (I} Capital Improvement Projects (a) Review The Purchasing Officer and an appropriate department representative shall review each proposed project or bid to determine potential for utilization of MHE/WBEs and report their finds to the City Council. This review is based on known availability of cagable MBE/WBEs in the area in relation to the scope of the bid package and considers how a project might be broken down into sub-bide. (b) Pre-Bid Activity {1) Language regarding the Minority Business Enterprise Program will be inserted into bid specifications to 20 AllG-16-@0 12:26 PM FREDFOXENT 9@43284 P.22 assure that prospective bidders are aware of a requirement to make goad faith efforts to utilize • .MBE/WBEs. {2) Registered MBE/WBEs, the Minority Contractors Association and other organizations far minority and women owned businesses will be notified in writing regarding pre-bid conferences where information on project scope and specifications will be presented, along with ether types of technical assistance. (3) Available plans and specification will be to MBE/WBE associations along with any special instructions on how to pursue bide. (4} Majority (prime} contractors on a bid list will be sent a letter outlining the Minority Business Enterprise program procedures, the supportive documentation required for submittal with their bid, and n list of MBE/WBE contractors on the bid list. (5} No contractor will be awarded a bid until the contractor has provided specific detailed documentation on how MBE/WBEs will be utilized, and such a plan is approved by the City Council. (6) The MBE/WBE participation plan for a specific project and the contractor commitment to carry out the program will becom® a part of the contract awarded by the City. Failure to keep these commitments will be deemed noncompliance with the contract and may result in a breach of contract. • {2) Contractor R$~nonaibilities (a~ Contractors must indicate all MBE/WBEs, contracted for quotes regarding a particular scope of work and submit a completed "YntQnt to Perform" sheet containing information and documentation obtained from each MBE/WBEs. (b} A contractor who determines that a MBE/WBEs, names in the bid submittal, is unavailable or cannot perform, will request approval from the Purchasing Officer to name an acceptable alternate. Such requests will be approved when adequate documentation of caua~e for the change is presented by the contractor. (c) A contractor's MBE/WBE plan will utilize MBE/WBEs to perform commercially useful functions in the work bid. A MBE/WBE is performing a commercially useful function when it is responsible for the management and performance of a distinct element of the total work. {d} Contractors are required to make good faith efforts to obtain MeE/i~BE participation when so stipulated by bid specifications and/or contract.. If these efforts are 21 • A~~G-16-0@ 12:26 PM FREDF@XENT 9@4328484 P.23 • • unsuccessful, the contractor will submit a non- availability or refusal to participate and will request waiver of M8E/WBE participation. (e) The contractor who is the successful bidder will attend pre-construction conferences with appropriate City representatives to review the project scope and the M8E/WBE utilization plan. (f) The contractor who is the successful bidder must request a change order for any modification to the MBE/WHE plan. Change orders require Council approval and are contingent on contractor documentation of MHE/WBE involvement in the change requested and documentation of cause for the change. (3) ~E/WBE Contractor's Res~ongibilitiea (a) MBBe/WBEs must register with the Purchasing Officer in order to participatie in the Minority Business Enterprise Program. (b} MBEs/WBEs should attend pre-construction conferences to obtain information and technical assistance on projects and bid procedures in which they (MBEs/WBEs) have submitted bids. (4) point Venture Res„poneibilities . (a} All joint ventures between minority and non-minority contractors must meet the "joint venture" definition included in this policy. (b} The use by MBE/WBEs or prime contractors of "minority fronts" or other fraudulent practices which subvert the true meaning and spirit of the Minority Business Enterprise Program, will not be tolerated and may result in termination of participation. (c} A joint venture consisting of minority and non-minority business enterprises will be credited with MBE/WBE participation on the basis of the percentages of the dollar amount of the work to be performed by the MBE/WBEs. (d) Contracts subfect to this policy shall contain provisions stating that liquidated damages may be assessed agai.net the general contractor and/or the MBE/WBE firm for violations of this golicy on MBE/WBE specifications in the contract(s). Such liquidated damage pzovisions shall be in a form approved by the Council. Z2 AUG-16-0@ 12:27 PM FREDF0XEFIT 9@4?2~484 P-24 . • $. Fulfilling MBEIWBE Particip~ ion Requirements For the purpose of this policy, a general contractor may utilize • the services of a MBE/WBE subcontractor, manufacturer, and/or supplier in estimating and satisfying th® scope of work, provided that written contract/agreement is executed between the general contractor and the subcontractor, manufacturer, and/or the supplier. F. Payment (l) Payment will be expedited by the City Council within thirty (30) days upon completion and acceptance of the project. Special consideration may be given to hardship cases upon notification by MBEs/WBEs. (2) The City will provide work progress payments to all businesses at the completion and subsequent acceptance by Council representatives within various stages of a particular project. G. ~Iavier of Bid Bond Requirements The Cauncil may, at its discretion, waive any of the requirements of this Section when it is determined to be in the best interest of the City. H. Bid List A bid list for the purpose of bid solicitations shall be maintained by the City. The list shall consist of firms that apply. (1) The City may remove firma from the bid list for any of the following reasons: (a) consistent failure tv respond to bid invitations {three (3) consecutive instances) within the last eighteen month period; or (b) tailors to update the information on file including address, product or service description or business description. (2) The Council may remove firma from the bid list for the following reasons: (a) failure to perform according to contract provisions; (b) conviction in a court of law of any criminal offense in connection with the conduct of business. (c) clear and convincing evidence of a violation of any federal or state anti-trust law based on the submission of bids or proposals or the awarding of contracts. (d) clear and convincing evidence that the vendor has attempted tv give a Council employee, officer or agent a gratuity of any kind for the purpose of influencing a reeonunendntion or d~ci4iorl in connection with any part of the City Council purchasing activity; 23 •