Bill Text: CA AB2419 | 2009-2010 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Contractors.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Vetoed) 2010-09-30 - Vetoed by Governor. [AB2419 Detail]
Download: California-2009-AB2419-Amended.html
Bill Title: Contractors.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Vetoed) 2010-09-30 - Vetoed by Governor. [AB2419 Detail]
Download: California-2009-AB2419-Amended.html
BILL NUMBER: AB 2419 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 25, 2010
INTRODUCED BY Assembly Member Cook
FEBRUARY 19, 2010
An act to add Section 7127 to amend
Sections 27, 101, 130, 144, 205, 7000, 7000.5, 7001, 7002, 7007,
7011, 7011.4, 7011.5, 7011.8, 7013, 7015, 7017.3, 7026.2, 7026.3,
7026.11, 7026.12, 7027.1, 7027.3, 7027.5, 7028.1, 702 8.3,
7028.4, 7028.11, 7028.14, 7029.5, 7029.6, 7030, 7030.1, 7031, 7034,
7042.1, 7055, 7056, 7057, 7058, 7058.5, 7058.6, 7058.7, 7058.8, 7059,
7065.2, 7065.3, 7068.5, 7071.5, 7071.6, 7071.10, 7071.12, 7071.14,
7080.5, 7085.5, 7090.5, 7095, 7099.4, 7099.10, 7104, 7116, 7118.4,
7118.5, 7118.6, 7119, 7120, 7123.5, 7124.6, 7125, 7126, 7135, 7136,
7137.5, 7138, 7139.1, 7139.2, 7139.5, 7139.8, 7139.10, 7145, 7145.5,
7151, 7155, 7159, 8516, 16000, 16100, and 19164 of, and to amend and
repeal Section 7000.6 of, the Business and Professions Code,
to amend Section 3084 of the Civil Code, to amend Section
116.220 of the Code of Civil Procedure, to amend Section 17250.25 of
the Education Code, to amend Sections 14137, 14661, 14661.1, 26509,
63047, and 70391.7 of the Government Code, to amend Sections 19825
and 25284.1 of the Health and Safety Code, to amend Sections 98.9,
3099, 3099.2, and 6652 of the Labor Code, to amend Sections 396 and
830.3 of the Penal Code, to amend Sections 6100, 6805, 10262, 10762,
20103.5, 20175.2, 20193, 20209.7, 20688.6, 20919.4, and 22010 of the
Public Contract Code, to amend Section 327 of the Public Utilities
Code, to amend Section 143 of the Streets and Highways Code, and to
amend Section 1095 of the Unemployment Insurance Code,
relating to contractors.
LEGISLATIVE COUNSEL'S DIGEST
AB 2419, as amended, Cook. Contractors: workers'
compensation insurance coverage. Contractors.
Existing law, the Contractors' State License Law, provides for the
licensure and regulation of contractors by the Contractors' State
License Board.
This bill would rename that law the Contractors State License Law
and would rename the board the Contractors State License Board. The
bill would rename specified classifications of contractors, and would
make other technical, nonsubstantive, and conforming changes to
related provisions.
Existing law requires private employers to secure the payment of
compensation by obtaining and maintaining workers' compensation
insurance or to self-insure as an individual employer or as one
employer in a group of employers. The Contractors' State License Law
requires every licensed contractor to have on file at all times with
the Contractors' State License Board a current and valid Certificate
of Workers' Compensation Insurance or Certification of
Self-Insurance, or a statement certifying that he or she has no
employees and is not required to obtain or maintain workers'
compensation insurance coverage.
This bill would authorize the registrar of contractors to issue a
stop order to any unlicensed contractor who has failed to secure
workers' compensation insurance coverage for his or her employees.
The bill would make a failure to comply with the stop order a crime,
thereby imposing a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 27 of the Business
and Professions Code is amended to read:
27. (a) Each entity specified in subdivision (b) shall provide on
the Internet information regarding the status of every license
issued by that entity in accordance with the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code) and the Information Practices Act
of 1977 (Chapter 1 (commencing with Section 1798) of Title 1.8 of
Part 4 of Division 3 of the Civil Code). The public information to be
provided on the Internet shall include information on suspensions
and revocations of licenses issued by the entity and other related
enforcement action taken by the entity relative to persons,
businesses, or facilities subject to licensure or regulation by the
entity. In providing information on the Internet, each entity shall
comply with the Department of Consumer Affairs Guidelines for Access
to Public Records. The information may not include personal
information, including home telephone number, date of birth, or
social security number. Each entity shall disclose a licensee's
address of record. However, each entity shall allow a licensee to
provide a post office box number or other alternate address, instead
of his or her home address, as the address of record. This section
shall not preclude an entity from also requiring a licensee, who has
provided a post office box number or other alternative mailing
address as his or her address of record, to provide a physical
business address or residence address only for the entity's internal
administrative use and not for disclosure as the licensee's address
of record or disclosure on the Internet.
(b) Each of the following entities within the Department of
Consumer Affairs shall comply with the requirements of this section:
(1) The Acupuncture Board shall disclose information on its
licensees.
(2) The Board of Behavioral Sciences shall disclose information on
its licensees, including marriage and family therapists, licensed
clinical social workers, and licensed educational psychologists.
(3) The Dental Board of California shall disclose information on
its licensees.
(4) The State Board of Optometry shall disclose information
regarding certificates of registration to practice optometry,
statements of licensure, optometric corporation registrations, branch
office licenses, and fictitious name permits of its licensees.
(5) The Board for Professional Engineers and Land Surveyors shall
disclose information on its registrants and licensees.
(6) The Structural Pest Control Board shall disclose information
on its licensees, including applicators, field representatives, and
operators in the areas of fumigation, general pest and wood
destroying pests and organisms, and wood roof cleaning and treatment.
(7) The Bureau of Automotive Repair shall disclose information on
its licensees, including auto repair dealers, smog stations, lamp and
brake stations, smog check technicians, and smog inspection
certification stations.
(8) The Bureau of Electronic and Appliance Repair shall disclose
information on its licensees, including major appliance repair
dealers, combination dealers (electronic and appliance), electronic
repair dealers, service contract sellers, and service contract
administrators.
(9) The Cemetery and Funeral Bureau shall disclose information on
its licensees, including cemetery brokers, cemetery salespersons,
cemetery managers, crematory managers, cemetery authorities,
crematories, cremated remains disposers, embalmers, funeral
establishments, and funeral directors.
(10) The Professional Fiduciaries Bureau shall disclose
information on its licensees.
(11) The Contractors' Contractors
State License Board shall disclose information on its licensees in
accordance with Chapter 9 (commencing with Section 7000) of Division
3. In addition to information related to licenses as specified in
subdivision (a), the board shall also disclose information provided
to the board by the Labor Commissioner pursuant to Section 98.9 of
the Labor Code.
(12) The Board of Psychology shall disclose information on its
licensees, including psychologists, psychological assistants, and
registered psychologists.
(13) The Bureau for Private Postsecondary Education shall disclose
information on private postsecondary institutions under its
jurisdiction, including disclosure of notices to comply issued
pursuant to Section 94935 of the Education Code.
(c) "Internet" for the purposes of this section has the meaning
set forth in paragraph (6) of subdivision (e) of Section 17538.
SEC. 2. Section 101 of the Business and
Professions Code is amended to read:
101. The department is comprised of:
(a) The Dental Board of California.
(b) The Medical Board of California.
(c) The State Board of Optometry.
(d) The California State Board of Pharmacy.
(e) The Veterinary Medical Board.
(f) The California Board of Accountancy.
(g) The California Architects Board.
(h) The Bureau of Barbering and Cosmetology.
(i) The Board for Professional Engineers and Land Surveyors.
(j) The Contractors' Contractors
State License Board.
(k) The Bureau for Private Postsecondary Education.
(l) The Bureau of Electronic and Appliance Repair, Home
Furnishings, and Thermal Insulation.
(m) The Board of Registered Nursing.
(n) The Board of Behavioral Sciences.
(o) The State Athletic Commission.
(p) The Cemetery and Funeral Bureau.
(q) The State Board of Guide Dogs for the Blind.
(r) The Bureau of Security and Investigative Services.
(s) The Court Reporters Board of California.
(t) The Board of Vocational Nursing and Psychiatric Technicians.
(u) The Landscape Architects Technical Committee.
(v) The Division of Investigation.
(w) The Bureau of Automotive Repair.
(x) The Respiratory Care Board of California.
(y) The Acupuncture Board.
(z) The Board of Psychology.
(aa) The California Board of Podiatric Medicine.
(ab) The Physical Therapy Board of California.
(ac) The Arbitration Review Program.
(ad) The Physician Assistant Committee.
(ae) The Speech-Language Pathology and Audiology Board.
(af) The California Board of Occupational Therapy.
(ag) The Osteopathic Medical Board of California.
(ah) The Naturopathic Medicine Committee.
(ai) The Dental Hygiene Committee of California.
(aj) The Professional Fiduciaries Bureau.
(ak) Any other boards, offices, or officers subject to its
jurisdiction by law.
SEC. 3. Section 130 of the Business and
Professions Code is amended to read:
130. (a) Notwithstanding any other provision of law, the term of
office of any member of an agency designated in subdivision (b) shall
be for a term of four years expiring on June 1.
(b) Subdivision (a) applies to the following boards or committees:
(1) The Medical Board of California.
(2) The California Board of Podiatric Medicine.
(3) The Physical Therapy Board of California.
(4) The Board of Registered Nursing.
(5) The Board of Vocational Nursing and Psychiatric Technicians.
(6) The State Board of Optometry.
(7) The California State Board of Pharmacy.
(8) The Veterinary Medical Board.
(9) The California Architects Board.
(10) The Landscape Architect Technical Committee.
(11) The Board for Professional Engineers and Land Surveyors.
(12) The Contractors' Contractors
State License Board.
(13) The State Board of Guide Dogs for the Blind.
(14) The Board of Behavioral Sciences.
(15) The Court Reporters Board of California.
(16) The State Athletic Commission.
(17) The Osteopathic Medical Board of California.
(18) The Respiratory Care Board of California.
(19) The Acupuncture Board.
(20) The Board of Psychology.
SEC. 4. Section 144 of the Business and
Professions Code is amended to read:
144. (a) Notwithstanding any other provision of law, an agency
designated in subdivision (b) shall require an applicant to furnish
to the agency a full set of fingerprints for purposes of conducting
criminal history record checks. Any agency designated in subdivision
(b) may obtain and receive, at its discretion, criminal history
information from the Department of Justice and the United States
Federal Bureau of Investigation.
(b) Subdivision (a) applies to the following:
(1) California Board of Accountancy.
(2) State Athletic Commission.
(3) Board of Behavioral Sciences.
(4) Court Reporters Board of California.
(5) State Board of Guide Dogs for the Blind.
(6) California State Board of Pharmacy.
(7) Board of Registered Nursing.
(8) Veterinary Medical Board.
(9) Registered Veterinary Technician Committee.
(10) Board of Vocational Nursing and Psychiatric Technicians.
(11) Respiratory Care Board of California.
(12) Hearing Aid Dispensers Advisory Commission.
(13) Physical Therapy Board of California.
(14) Physician Assistant Committee of the Medical Board of
California.
(15) Speech-Language Pathology and Audiology Board.
(16) Medical Board of California.
(17) State Board of Optometry.
(18) Acupuncture Board.
(19) Cemetery and Funeral Bureau.
(20) Bureau of Security and Investigative Services.
(21) Division of Investigation.
(22) Board of Psychology.
(23) The California Board of Occupational Therapy.
(24) Structural Pest Control Board.
(25) Contractors' Contractors State
License Board.
(26) Bureau of Naturopathic Medicine.
(27) The Professional Fiduciaries Bureau.
(c) The provisions of paragraph (24) of subdivision (b) shall
become operative on July 1, 2004. The provisions of paragraph (25) of
subdivision (b) shall become operative on the date on which
sufficient funds are available for the Contractors'
Contractors State License Board and the
Department of Justice to conduct a criminal history record check
pursuant to this section or on July 1, 2005, whichever occurs first.
SEC. 5. Section 205 of the Business and
Professions Code is amended to read:
205. (a) There is in the State Treasury the Professions and
Vocations Fund. The fund shall consist of the following special
funds:
(1) Accountancy Fund.
(2) California Architects Board Fund.
(3) Athletic Commission Fund.
(4) Barbering and Cosmetology Contingent Fund.
(5) Cemetery Fund.
(6) Contractors' Contractors License
Fund.
(7) State Dentistry Fund.
(8) State Funeral Directors and Embalmers Fund.
(9) Guide Dogs for the Blind Fund.
(10) Home Furnishings and Thermal Insulation Fund.
(11) California Architects Board-Landscape Architects Fund.
(12) Contingent Fund of the Medical Board of California.
(13) Optometry Fund.
(14) Pharmacy Board Contingent Fund.
(15) Physical Therapy Fund.
(16) Private Investigator Fund.
(17) Professional Engineers' and Land Surveyors' Fund.
(18) Consumer Affairs Fund.
(19) Behavioral Sciences Fund.
(20) Licensed Midwifery Fund.
(21) Court Reporters' Fund.
(22) Veterinary Medical Board Contingent Fund.
(23) Vocational Nurses Account of the Vocational Nursing and
Psychiatric Technicians Fund.
(24) Electronic and Appliance Repair Fund.
(25) Geology and Geophysics Fund.
(26) Dispensing Opticians Fund.
(27) Acupuncture Fund.
(28) Physician Assistant Fund.
(29) Board of Podiatric Medicine Fund.
(30) Psychology Fund.
(31) Respiratory Care Fund.
(32) Speech-Language Pathology and Audiology Fund.
(33) Board of Registered Nursing Fund.
(34) Psychiatric Technician Examiners Account of the Vocational
Nursing and Psychiatric Technicians Fund.
(35) Animal Health Technician Examining Committee Fund.
(36) State Dental Hygiene Fund.
(37) State Dental Assistant Fund.
(38) Hearing Aid Dispensers Account of the Speech-Language
Pathology and Audiology Fund.
(b) For accounting and recordkeeping purposes, the Professions and
Vocations Fund shall be deemed to be a single special fund, and each
of the several special funds therein shall constitute and be deemed
to be a separate account in the Professions and Vocations Fund. Each
account or fund shall be available for expenditure only for the
purposes as are now or may hereafter be provided by law.
SEC. 6. Section 7000 of the Business
and Professions Code is amended to read:
7000. This chapter constitutes, and may be cited as, the
Contractors' Contractors State License Law.
SEC. 7. Section 7000.5 of the Business
and Professions Code is amended to read:
7000.5. (a) There is in the Department of Consumer Affairs a
Contractors' Contractors State License
Board, which consists of 15 members. As used in this chapter,
the term "board" means the Contractors State License Board.
(b) The repeal of this section renders the board subject to the
review required by Division 1.2 (commencing with Section 473).
However, the review of this board by the department shall be limited
to only those unresolved issues identified by the Joint Committee on
Boards, Commissions, and Consumer Protection.
(c) This section shall remain in effect only until January 1,
2011, and , as of that date , is repealed,
unless a later enacted statute, that is enacted before January 1,
2011, deletes or extends that date.
The repeal of this section renders the board subject to the review
required by Division 1.2 (commencing with Section 473).
SEC. 8. Section 7000.6 of the Business
and Professions Code , as added by Section 3 of Chapter
744 of the Statutes of 2002, is amended to read:
7000.6. Protection of the public shall be the highest priority
for the Contractors' Contractors State
License Board in exercising its licensing, regulatory, and
disciplinary functions. Whenever the protection of the public is
inconsistent with other interests sought to be promoted, the
protection of the public shall be paramount.
SEC. 9. Section 7000.6 of the Business
and Professions Code , as added by Section 27 of Chapter
107 of the Statutes of 2002, is repealed.
7000.6. Protection of the public shall be the highest priority
for the Contractors' State License Board in exercising its licensing,
regulatory, and disciplinary functions. Whenever the protection of
the public is inconsistent with other interests sought to be
promoted, the protection of the public shall be paramount.
SEC. 10. Section 7001 of the Business
and Professions Code is amended to read:
7001. All members of the board, except the public members, shall
be contractors actively engaged in the contracting business, have
been so engaged for a period of not less than five years preceding
the date of their appointment , and shall so continue in
the contracting business during the term of their office. No one,
except a public member, shall be eligible for appointment who does
not at the time hold an unexpired license to operate as a contractor.
The public members shall not be licentiates of the board.
SEC. 11. Section 7002 of the Business
and Professions Code is amended to read:
7002. (a) One member of the board shall be a general
engineering General Engineering ("A")
contractor, two members shall be general building
General Building ("B") contractors, two members shall be
specialty Specialty ("C") contractors,
one member shall be a member of a labor organization representing the
building trades, one member shall be an active local building
official, and eight members shall be public members, one of whom
shall be from a statewide senior citizen organization.
(b) No public member shall be a current or former licensee of the
board or a close family member of a licensee or be currently or
formerly connected with the construction industry or have any
financial interest in the business of a licensee of the board. Each
public member shall meet all of the requirements for public
membership on a board as set forth in Chapter 6 (commencing with
Section 450) of Division 1. Notwithstanding the provisions of this
subdivision and those of Section 450, a representative of a labor
organization shall be eligible for appointment to serve as a public
member of the board.
(c) Each contractor member of the board shall be of recognized
standing in his or her branch of the contracting business and hold an
unexpired license to operate as a contractor. In addition, each
contractor member shall, as of the date of his or her appointment, be
actively engaged in the contracting business and have been so
engaged for a period of not less than five years. Each contractor
member shall remain actively engaged in the contracting business
during the entire term of his or her membership on the board.
(d) Each member of the board shall be at least 30 years of age and
of good character. In addition, each member shall have been a
citizen and resident of the State of California for at least five
years next preceding his or her appointment.
(e) For the purposes of construing this article, the terms
"general engineering " General
Engineering (" A") contractor," "general
building " General Building (" B"
) contractor," and "specialty "
Specialty (" C") contractor" shall have the
meanings given in Article 4 (commencing with Section 7055) of this
chapter.
SEC. 12. Section 7007 of the Business
and Professions Code is amended to read:
7007. Eight members constitute a quorum at a board meeting.
Due notice of each meeting and the time and place thereof shall be
given to each member in the manner
, as provided by in the
bylaws.
SEC. 13. Section 7011 of the Business
and Professions Code is amended to read:
7011. The board, by and with the approval of the director, shall
appoint a registrar Registrar of
contractors Contractors and fix his or
her compensation.
The registrar shall be the executive officer and secretary of the
board and shall carry out all of the administrative duties as
provided in this chapter and as delegated to him or her by the board.
For the purpose of administration of this chapter, there may be
appointed a deputy registrar, a chief reviewing and hearing officer,
and, subject to Section 159.5, other assistants and subordinates as
may be necessary.
Appointments shall be made in accordance with the provisions of
civil service laws.
This section shall remain in effect only until January 1, 2011,
and , as of that date , is repealed, unless a
later enacted statute, that is enacted before January 1, 2011,
deletes or extends that date.
SEC. 14. Section 7011.4 of the Business
and Professions Code is amended to read:
7011.4. (a) Notwithstanding Section 7011, there is in the
Contractors' Contractors State License
Board, a separate enforcement unit which that
shall rigorously enforce this chapter prohibiting all forms of
unlicensed activity.
(b) Persons employed as enforcement representatives in this unit
and designated by the Director of Consumer Affairs
director are not peace officers and are not entitled to
safety member retirement benefits. They do not have the power of
arrest. However, they may issue a written notice to appear in court
pursuant to Chapter 5c (commencing with Section 853.5) of Title 3 of
Part 2 of the Penal Code.
SEC. 15. Section 7011.5 of the Business
and Professions Code is amended to read:
7011.5. Persons employed as investigators of the Special
Investigations Unit of the Contractors'
Contractors State License Board and designated by the
Director of Consumer Affairs director have the
authority of peace officers while engaged in exercising the powers
granted or performing the duties imposed upon them in investigating
the laws administered by the Contractors' State License
Board board or commencing directly or indirectly
any criminal prosecution arising from any investigation conducted
under these laws. All persons herein referred to shall be deemed to
be acting within the scope of employment with respect to all acts and
matters in this section set forth.
SEC. 16. Section 7011.8 of the Business
and Professions Code is amended to read:
7011.8. (a) Any person who reports to, or causes a complaint to
be filed with, the Contractors' Contractors
State License Board that a person licensed by that entity has
engaged in professional misconduct, knowing the report or complaint
to be false, is guilty of an infraction punishable by a fine not to
exceed one thousand dollars ($1,000).
(b) The board may notify the appropriate district attorney or city
attorney that a person has made or filed what the entity believes to
be a false report or complaint against a licensee.
SEC. 17. Section 7013 of the Business
and Professions Code is amended to read:
7013. The board may , in its discretion ,
review and sustain or reverse by a majority vote any action or
decision of the registrar.
This section shall apply to any action, decision, order, or
proceeding of the registrar conducted in accordance with the
provisions of Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code.
SEC. 18. Section 7015 of the Business
and Professions Code is amended to read:
7015. The board shall adopt a seal for its own use. The seal
shall have the words "Contractors' "
Contractors State License Board, State of California,
Department of Consumer Affairs," and the care and custody thereof
shall be in the hands of the registrar.
SEC. 19. Section 7017.3 of the Business
and Professions Code is amended to read:
7017.3. The Contractors' Contractors
State License Board shall report annually to the Legislature,
not later than October 1 of each year, the following statistical
information for the prior fiscal year. The following data shall be
reported on complaints filed with the board against licensed
contractors, registered home improvement salespersons, and unlicensed
persons acting as licensees or registrants:
(a) The number of complaints received by the board categorized by
source, such as public, trade, profession, government agency, or
board-initiated, and by type of complaint, such as licensee or
nonlicensee.
(b) The number of complaints closed prior to referral for field
investigation, categorized by the reason for the closure, such as
settled, referred for mandatory arbitration, or referred for
voluntary arbitration.
(c) The number of complaints referred for field investigation
categorized by the type of complaint, such as licensee or
nonlicensee.
(d) The number of complaints closed after referral for field
investigation categorized by the reason for the closure, such as
settled, referred for mandatory arbitration, or referred for
voluntary arbitration.
(e) For the board's Intake/Mediation Center and the board's
Investigation Center closures, respectively, the total number of
complaints closed prior to a field investigation per consumer
services representative, and the total number of complaints closed
after referral for a field investigation per enforcement
representative. Additionally, the board shall report the total number
of complaints closed by other board staff during the year.
(f) The number of complaints pending at the end of the fiscal year
grouped in 90-day increments, and the percentage of total complaints
pending, represented by the number of complaints in each grouping.
(g) The number of citations issued to licensees ,
categorized by the type of citation , such as order of
correction only or order of correction and fine, and the number of
citations issued to licensees that were vacated or withdrawn.
(h) The number of citations issued to nonlicensees and the number
of these citations that were vacated or withdrawn.
(i) The number of complaints referred to a local prosecutor for
criminal investigation or prosecution, the number of complaints
referred to the Attorney General for the filing of an accusation, and
the number of complaints referred to both a local prosecutor and the
Attorney General, categorized by type of complaint, such as licensee
and nonlicensee.
(j) Actions taken by the board, including, but not limited to, the
following:
(1) The number of disciplinary actions categorized by type, such
as revocations or suspensions, categorized by whether the
disciplinary action resulted from an accusation, failure to comply
with a citation, or failure to comply with an arbitration award.
(2) The number of accusations dismissed or withdrawn.
(k) For subdivisions (g) and (j), the number of cases containing
violations of Sections 7121 and 7121.5, and paragraph (5) of
subdivision (a) of Section 7159.5, categorized by section.
(l) The number of interim suspension orders sought, the number of
interim suspension orders granted, the number of temporary
restraining orders sought, and the number of temporary restraining
orders granted.
(m) The amount of cost recovery ordered and the amount collected.
(n) Case aging data, including data for each major stage of the
enforcement process, including the following:
(1) The average number of days from the filing of a complaint to
its closure by the board's Intake/Mediation Center prior to the
referral for an investigation categorized by the type of complaint,
such as licensee or nonlicensee.
(2) The average number of days from the referral of a complaint
for an investigation to its closure by the Investigation Center
categorized by the type of complaint, such as licensee or
nonlicensee.
(3) The average number of days from the filing of a complaint to
the referral of the completed investigation to the Attorney General.
(4) The average number of days from the referral of a completed
investigation to the Attorney General to the filing of an accusation
by the Attorney General.
(5) The average number of days from the filing of an accusation to
the first hearing date or date of a stipulated settlement.
(6) The average number of days from the receipt of the
Administrative Law Judge's proposed decision to the registrar's final
decision.
SEC. 20. Section 7026.2 of the
Business and Professions Code is amended to read:
7026.2. (a) For the purposes of this chapter, "contractor"
includes any person engaged in the business of the construction,
installation, alteration, repair, or preparation for moving of a
mobilehome or mobilehome accessory buildings and structures upon a
site for the purpose of occupancy as a dwelling.
(b) "Contractor" does not include the manufacturer of the
mobilehome or mobilehome accessory building or structure if it is
constructed at a place other than the site upon which it is installed
for the purpose of occupancy as a dwelling, and does not include the
manufacturer when the manufacturer is solely performing work in
compliance with the manufacturer's warranty. "Contractor" includes
the manufacturer , if the manufacturer is engaged in
onsite construction, alteration, or repair of a mobilehome or
mobilehome accessory buildings and structures pursuant to specialized
plans, specifications, or models, or any work other than in
compliance with the manufacturer's warranty.
(c) "Contractor" does not include a seller of a manufactured home
or mobilehome who holds a retail manufactured home or mobilehome
dealer's license under Chapter 7 (commencing with Section 18045) of
Part 2 of Division 13 of the Health and Safety Code, if the
installation of the manufactured home or mobilehome is to be
performed by a licensed contractor and the seller certifies that fact
in writing to the buyer prior to the performance of the
installation. The certification shall include the name, business
address, and contractor's contractor
license number of the licensed contractor by whom the installation
will be performed.
(d) For the purposes of this chapter, the following terms have the
following meanings:
(1) "Mobilehome" means a vehicle defined in Section 18008 of the
Health and Safety Code.
(2) "Mobilehome accessory building or structure" means a building
or structure defined in Section 18008.5 of the Health and Safety
Code.
(3) "Manufactured home" means a structure defined in Section 18007
of the Health and Safety Code.
SEC. 21. Section 7026.3 of the
Business and Professions Code is amended to read:
7026.3. For the purpose of this chapter, "contractor" includes
any person who installs or contracts for the installation of carpet
wherein the carpet is attached to the structure by any conventional
method as determined by custom and usage in the trade; except that a
seller of installed carpet who holds a retail furniture dealer's
license under Chapter 3 (commencing with Section 19000) of Division 8
shall not be required to have a contractor's
contractor license if the installation of the carpet is
performed by a licensed contractor and the seller so certifies in
writing to the buyer prior to the performance of the installation,
which certification shall include the name, business address, and
contractor's contractor license number
of the licensed contractor by whom the installation will be
performed.
SEC. 22. Section 7026.11 of the
Business and Professions Code is amended to read:
7026.11. Notwithstanding any other provision of law, the
permissible scope of work for the General Manufactured Housing
Contractor (C-47) license classification set forth
in Section 832.47 of Division 8 of Title 16 of the California Code
of Regulations shall include manufactured homes, as defined in
Section 18007 of the Health and Safety Code, mobilehomes, as defined
in Section 18008 of the Health and Safety Code, and multifamily
manufactured homes, as defined in Section 18008.7 of the Health and
Safety Code.
SEC. 23. Section 7026.12 of the
Business and Professions Code is amended to read:
7026.12. The installation of a fire protection system, excluding
an electrical alarm system, shall be performed only by a contractor
holding a fire protection contractor Fire
Protection (C-16) classification as defined in the regulations
of the board or by an owner-builder of an owner-occupied,
single-family dwelling, if not more than two single-family dwellings
on the same parcel are constructed within one year, plans are
submitted to and approved by the city, county, or city and county
authority, and the city, county, or city and county authority
inspects and approves the installation.
SEC. 24. Section 7027.1 of the Business
and Professions Code is amended to read:
7027.1. (a) It is a misdemeanor for any person to advertise for
construction or work of improvement covered by this chapter unless
that person holds a valid license under this chapter in the
classification so advertised, except that a licensed
building or engineering General Engineering ("A") or
General Building (" B") contractor may advertise as
a general contractor.
(b) "Advertise," as used in this section, includes, but not by way
of limitation, the issuance of any card, sign, or device to any
person, the causing, permitting, or allowing of any sign or marking
on or in any building or structure, or in any newspaper, magazine, or
by airwave or any electronic transmission, or in any directory under
a listing for construction or work of improvement covered by this
chapter, with or without any limiting qualifications.
(c) A violation of this section is punishable by a fine of not
less than seven hundred dollars ($700) and not more than one thousand
dollars ($1,000), which fine shall be in addition to any other
punishment imposed for a violation of this section.
(d) If , upon investigation, the registrar has probable
cause to believe that an unlicensed individual is in violation of
this section, the registrar may issue a citation pursuant to Section
7028.7 or 7099.10.
SEC. 25. Section 7027. 3 of the
Business and Professions Code is amended to read:
7027.3. Any person, licensed or unlicensed, who willfully and
intentionally uses, with intent to defraud, a contractor's
contractor license number that does not
correspond to the number on a currently valid contractor's
contractor license held by that person, is
punishable by a fine not exceeding ten thousand dollars ($10,000), or
by imprisonment in state prison, or in county jail for not more than
one year, or by both that fine and imprisonment. The penalty
provided by this section is cumulative to the penalties available
under all other laws of this state. If, upon investigation, the
registrar has probable cause to believe that an unlicensed individual
is in violation of this section, the registrar may issue a citation
pursuant to Section 7028.7.
SEC. 26. Section 7027.5 of the Business
and Professions Code is amended to read:
7027.5. (a) A landscape contractor working within the
classification for which the license is issued may design systems or
facilities for work to be performed and supervised by that
contractor.
(b) Notwithstanding any other provision of this chapter, a
landscape contractor working within the classification for which the
license is issued may enter into a prime contract for the
construction of any of the following:
(1) A swimming pool, spa, or hot tub, provided that the
improvements are included within the landscape project that the
landscape contractor is supervising and the construction of any
swimming pool, spa, or hot tub is subcontracted to a single licensed
contractor holding a Swimming Pool (C-53) classification, as set
forth in Section 832.53 of Title 16 of the California Code of
Regulations, or performed by the landscape contractor if the
landscape contractor also holds a Swimming Pool (C-53)
classification. The contractor constructing the swimming pool, spa,
or hot tub may subcontract with other appropriately licensed
contractors for the completion of individual components of the
construction.
(2) An outdoor cooking center, provided that the improvements are
included within a residential landscape project that the contractor
is supervising. For purposes of this subdivision, "outdoor cooking
center" means an unenclosed area within a landscape that is used for
the cooking or preparation of food or beverages.
(3) An outdoor fireplace, provided that it is included within a
residential landscape project that the contractor is supervising and
is not attached to a dwelling.
(c) Work performed in connection with a residential landscape
project specified in paragraph (2) or (3) of subdivision (b) that is
outside of the field and scope of activities authorized to be
performed under the Landscape Contractor classification
(C-27) classification , as set forth in Section
832.27 of Title 16 of the California Code of Regulations, may only be
performed by a landscape contractor if the landscape contractor also
either holds an appropriate specialty license classification to
perform the work or is licensed as a general building
General Building contractor. If the landscape
contractor neither holds an appropriate specialty license
classification to perform the work nor is licensed as a
general building General Building contractor,
the work shall be performed by a specialty
Specialty contractor holding the appropriate license
classification or by a general building
General Building contractor performing work in accordance with
the requirements of subdivision (b) of Section 7057.
(d) A violation of this section shall be cause for disciplinary
action.
SEC. 27. Section 7028.1 of the Business
and Professions Code is amended to read:
7028.1. It is a misdemeanor for any contractor, whether licensed
or unlicensed, to perform or engage in asbestos-related work, as
defined in Section 6501.8 of the Labor Code, without certification
pursuant to Section 7058.5 of this code, or to perform or engage in a
removal or remedial action, as defined in subdivision (d) of Section
7058.7, or, unless otherwise exempted by this chapter, to bid for
the installation or removal of, or to install or remove, an
underground storage tank, without certification pursuant to Section
7058.7. A contractor in violation of this section is subject to one
of the following penalties:
(a) Conviction of a first offense is punishable by a fine of not
less than one thousand dollars ($1,000) or more than three thousand
dollars ($3,000), and by possible revocation or suspension of any
contractor's contractor license.
(b) Conviction of a subsequent offense requires a fine of not less
than three thousand dollars ($3,000) or more than five thousand
dollars ($5,000), or imprisonment in the county jail not exceeding
one year, or both the fine and imprisonment, and a mandatory action
to suspend or revoke any contractor's
contractor license.
SEC. 28. Section 7028.3 of the Business
and Professions Code is amended to read:
7028.3. In addition to all other remedies, when it appears to the
registrar, either upon complaint or otherwise, that a licensee has
engaged in, or is engaging in, any act, practice, or transaction
which that constitutes a violation of
this chapter whereby another person may be substantially injured, or
that any person, who does not hold a state contractor's
contractor license in any classification, has
engaged in, or is engaging in, any act, practice, or transaction
which that constitutes a violation of
this chapter, whether or not there is substantial injury, the
registrar may, either through the Attorney General or through the
district attorney of the county in which the act, practice, or
transaction is alleged to have been committed, apply to the superior
court of that county or any other county in which such person
maintains a place of business or resides, for an injunction
restraining such person from acting in the capacity of a contractor
without a license in violation of this chapter, or from acting in
violation of this chapter when another person may be substantially
injured, and, upon a proper showing, a temporary restraining order, a
preliminary injunction, or a permanent injunction shall be granted.
SEC. 29. Section 7028.4 of the Business
and Professions Code is amended to read:
7028.4. In addition to the remedies set forth in Section 7028.3,
on proper showing by (1) a licensed contractor, or an association of
contractors, (2) a consumer affected by the violation, (3) a district
attorney, or (4) the Attorney General, of a continuing violation of
this chapter by a person who does not hold a state
contractor's contractor license in any
classification, an injunction shall issue by a court specified in
Section 7028.3 at the request of any such party, prohibiting such
violation. The plaintiff in any such action shall not be required to
prove irreparable injury.
SEC. 30. Section 7028.11 of the
Business and Professions Code is amended to read:
7028.11. If , within 15 working days after service of
the citation, the person cited fails to notify the registrar that he
or she intends to appeal the citation, the citation shall be deemed a
final order of the registrar and shall not subject to
review by any court or agency. The 15-day period may be extended by
the registrar for good cause.
SEC. 31. Section 7028.14 of the
Business and Professions Code is amended to read:
7028.14. Notwithstanding any other provision of the law, the
registrar may waive part of the civil penalty if the person against
whom the civil penalty is assessed satisfactorily completes all the
requirements for, and is issued, a contractor's
contractor license. Any outstanding injury to the public
shall be satisfactorily settled prior to issuance of the license.
SEC. 32. Section 7029.5 of the Business
and Professions Code is amended to read:
7029.5. Every plumbing Plumbing (C-36)
contractor, electrical sign Electrical
Sign (C-45) contractor, and well-drilling
Well-Drilling (C-57) contractor licensed under this
chapter shall have displayed on each side of each motor vehicle used
in his or her business, for which a commercial vehicle registration
fee has been paid pursuant to Article 3 (commencing with Section
9400) of Chapter 6 of Division 3 of the Vehicle Code, his or her
name, permanent business address, and contractor's
contractor license number, all in letters and numerals
not less than 11/2 inches high.
The identification requirements of this section shall also apply
to any drill rig used for the drilling of water wells.
Failure to comply with this section constitutes a cause for
disciplinary action.
SEC. 33. Section 7029.6 of the Business
and Professions Code is amended to read:
7029.6. Except for contractors identified in Section 7029.5,
every contractor licensed under this chapter shall have displayed, in
or on each motor vehicle used in his or her construction business,
for which a commercial vehicle registration fee has been paid
pursuant to Article 3 (commencing with Section 9400) of Chapter 6 of
Division 3 of the Vehicle Code, his or her business name and
contractors' contractor license number in a
clearly visible location in print type of at least 72-point font or
three-quarters of an inch in height and width.
SEC. 34. Section 7030 of the Business
and Professions Code is amended to read:
7030. (a) Except for contractors writing home improvement
contracts pursuant to Section 7151.2 and contractors writing service
and repair contracts pursuant to Section 7159.10, every person
licensed pursuant to this chapter shall include the following
statement in at least 10-point type on all written contracts with
respect to which the person is a prime contractor:
"Contractors are required by law to be licensed and regulated by
the Contractors' Contractors State
License Board , which has jurisdiction to investigate
complaints against contractors if a complaint regarding a patent act
or omission is filed within four years of the date of the alleged
violation. A complaint regarding a latent act or omission pertaining
to structural defects must be filed within 10 years of the date of
the alleged violation. Any questions concerning a contractor may be
referred to the Registrar, Contractors'
Contractors State License Board, P.O. Box 26000, Sacramento, CA
95826."
(b) Every person licensed pursuant to this chapter shall include
the following statement in at least 12-point type in all home
improvement contracts written pursuant to Section 7151.2 and service
and repair contracts written pursuant to Section 7159.10:
"Information about the Contractors'
Contractors State License Board (CSLB): CSLB is the state
consumer protection agency that licenses and regulates construction
contractors.
Contact CSLB for information about the licensed contractor you are
considering, including information about disclosable complaints,
disciplinary actions , and civil judgments that are
reported to CSLB.
Use only licensed contractors. If you file a complaint against a
licensed contractor within the legal deadline (usually four years),
CSLB has authority to investigate the complaint. If you use an
unlicensed contractor, CSLB may not be able to help you resolve your
complaint. Your only remedy may be in civil court, and you may be
liable for damages arising out of any injuries to the unlicensed
contractor or the unlicensed contractor's employees.
For more information:
Visit CSLB's Web site at www.cslb.ca.gov
Call CSLB at 800-321-CSLB (2752)
Write CSLB at P.O. Box 26000, Sacramento, CA 95826."
(c) Failure to comply with the notice requirements set forth in
subdivision (a) or (b) of this section is cause for disciplinary
action.
(d) This section shall become operative on January 1, 2006.
SEC. 35. Section 7030.1 of the Business
and Professions Code is amended to read:
7030.1. (a) A contractor , who has his or her
license suspended or revoked two or more times within an eight-year
period , shall disclose either in capital letters
in 10-point roman boldface type or in contrasting red print in at
least 8-point roman boldface type, in a document provided prior to
entering into a contract to perform work on residential property with
four or fewer units, any disciplinary license suspension ,
or license revocation during the last eight years resulting
from any violation of this chapter by the contractor, whether or not
the suspension or revocation was stayed.
(b) The disclosure notice required by this section may be provided
in a bid, estimate, or other document prior to entering into a
contract.
(c) A violation of this section is subject to the following
penalties:
(1) A penalty of one thousand dollars ($1,000) shall be assessed
for the first violation.
(2) A penalty of two thousand five hundred dollars ($2,500) shall
be assessed for the second violation.
(3) A penalty of five thousand dollars ($5,000) shall be assessed
for a third violation in addition to a one-year suspension of license
by operation of law.
(4) A fourth violation shall result in the revocation of license
in accordance with this chapter.
SEC. 36. Section 7031 of the Business
and Professions Code is amended to read:
7031. (a) Except as provided in subdivision (e), no person
engaged in the business or acting in the capacity of a contractor
, may bring or maintain any action, or recover in
law or equity in any action, in any court of this state for the
collection of compensation for the performance of any act or contract
where a license is required by this chapter without alleging that he
or she was a duly licensed contractor at all times during the
performance of that act or contract, regardless of the merits of the
cause of action brought by the person, except that this prohibition
shall not apply to contractors who are each individually licensed
under this chapter but who fail to comply with Section 7029.
(b) Except as provided in subdivision (e), a person who utilizes
the services of an unlicensed contractor may bring an action in any
court of competent jurisdiction in this state to recover all
compensation paid to the unlicensed contractor for performance of any
act or contract.
(c) A security interest taken to secure any payment for the
performance of any act or contract for which a license is required by
this chapter is unenforceable if the person performing the act or
contract was not a duly licensed contractor at all times during the
performance of the act or contract.
(d) If licensure or proper licensure is controverted, then proof
of licensure pursuant to this section shall be made by production of
a verified certificate of licensure from the Contractors'
Contractors State License Board ,
which establishes that the individual or entity bringing the action
was duly licensed in the proper classification of contractors at all
times during the performance of any act or contract covered by the
action. Nothing in this subdivision shall require any person or
entity controverting licensure or proper licensure to produce a
verified certificate. When licensure or proper licensure is
controverted, the burden of proof to establish licensure or proper
licensure shall be on the licensee.
(e) The judicial doctrine of substantial compliance shall not
apply under this section where the person who engaged in the business
or acted in the capacity of a contractor has never been a duly
licensed contractor in this state. However, notwithstanding
subdivision (b) of Section 143, the court may determine that there
has been substantial compliance with licensure requirements under
this section if it is shown at an evidentiary hearing that the person
who engaged in the business or acted in the capacity of a contractor
(1) had been duly licensed as a contractor in this state prior to
the performance of the act or contract, (2) acted reasonably and in
good faith to maintain proper licensure, (3) did not know or
reasonably should not have known that he or she was not duly licensed
when performance of the act or contract commenced, and (4) acted
promptly and in good faith to reinstate his or her license upon
learning it was invalid.
(f) The exceptions to the prohibition against the application of
the judicial doctrine of substantial compliance found in subdivision
(e) shall apply to all contracts entered into on or after January 1,
1992, and to all actions or arbitrations arising therefrom, except
that the amendments to subdivisions (e) and (f) enacted during the
1994 portion of the 1993-94 Regular Session of the Legislature shall
not apply to either of the following:
(1) Any legal action or arbitration commenced prior to January 1,
1995, regardless of the date on which the parties entered into the
contract.
(2) Any legal action or arbitration commenced on or after January
1, 1995, if the legal action or arbitration was commenced prior to
January 1, 1995, and was subsequently dismissed.
SEC. 37. Section 7034 of the Business
and Professions Code is amended to read:
7034. (a) No contractor who is required to be licensed under this
chapter shall insert in any contract, or be a party ,
with a subcontractor who is licensed under this chapter to
any contract which that contains, a
provision, clause, covenant, or agreement which
that is void or unenforceable under Section 2782 of the
Civil Code.
(b) No contractor who is required to be licensed under this
chapter shall require a waiver of lien rights from any subcontractor,
employee, or supplier in violation of Section 3262 of the Civil
Code.
SEC. 38. Section 7042.1 of the Business
and Professions Code is amended to read:
7042.1. (a) Notwithstanding any other provisions of this chapter,
gas, heat, or electrical corporations and their subsidiaries that
are regulated as public utilities by the Public Utilities Commission
shall not conduct work for which a contractor's
contractor license is required, except under any one or
more of the following conditions:
(1) The work is performed upon the gas, heat, or electrical
corporation's properties.
(2) The work is performed through a contract with a contractor or
contractors licensed pursuant to this chapter or the work is
performed for low-income citizens pursuant to a program authorized by
order of the Public Utilities Commission.
(3) The work is undertaken by the gas, heat, or electrical
corporation in furtherance of the generation, transmission, or
distribution of electricity, gas, or steam, whether within or without
the service area of the corporation, if any work performed within a
structure and beyond a customer's utility meter is necessary to
protect the public safety or to avoid interruption of service.
(4) The work is otherwise exempt from the provisions of this
chapter.
(5) The work is performed to comply with programs or procedures
ordered or authorized by the Public Utilities Commission not
inconsistent with the objectives expressed in Chapter 984 of the
Statutes of 1983.
(b) For the purposes of this section, the following terms have the
following meanings:
(1) "Gas, heat, or electrical corporation properties" means
properties which a gas, heat, or electrical corporation owns or
leases, or over which it has been granted an easement for utility
purposes, or facilities which a gas, heat, or electrical corporation
owns or operates for utility purposes.
(2) "Subsidiaries" means subsidiaries of a gas, heat, or
electrical corporation regulated as public utilities by the Public
Utilities Commission which carry out activities solely for utility
purposes.
(c) It is the intention of the Legislature in enacting this
section that public utility regulations be clearly based on the
principle that the energy conservation industry should be allowed to
develop in a competitive manner, as declared in Chapter 984 of the
Statutes of 1983.
SEC. 39. Section 7055 of the Business
and Professions Code is amended to read:
7055. For the purpose of classification, the contracting business
includes any or all of the following branches:
(a) General engineering Engineering
contracting.
(b) General building Building
contracting.
(c) Specialty contracting.
SEC. 40. Section 7056 of the Business
and Professions Code is amended to read:
7056. A general engineering General
Engineering contractor is a contractor whose principal
contracting business is in connection with
fixed works requiring specialized engineering
knowledge and skill, including the following divisions or subjects:
irrigation, drainage, water power, water supply, flood control,
inland waterways, harbors, docks and wharves, shipyards and ports,
dams and hydroelectric projects, levees, river control and
reclamation works, railroads, highways, streets and roads, tunnels,
airports and airways, sewers and sewage disposal plants and systems,
waste reduction plants, bridges, overpasses, underpasses and other
similar works, pipelines and other systems for the transmission of
petroleum and other liquid or gaseous substances, parks, playgrounds
and other recreational works, refineries, chemical plants and similar
industrial plants requiring specialized engineering knowledge and
skill, powerhouses, power plants and other utility plants and
installations, mines and metallurgical plants, land leveling and
earthmoving projects, excavating, grading, trenching, paving and
surfacing work and cement and concrete works in connection with the
above mentioned fixed works.
SEC. 41. Section 7057 of the Business
and Professions Code is amended to read:
7057. (a) Except as provided in this section, a general
building General Building contractor is a
contractor whose principal contracting business is in connection with
any structure built, being built, or to be built, for the support,
shelter, and enclosure of persons, animals, chattels, or movable
property of any kind, requiring in its construction the use of at
least two unrelated building trades or crafts, or to do or
superintend the whole or any part thereof.
This does not include anyone who merely furnishes materials or
supplies under Section 7045 without fabricating them into, or
consuming them in the performance of , the work of the
general building General Building
contractor.
(b) A general building General Building
contractor may take a prime contract or a subcontract for a
framing or carpentry project. However, a general building
General Building contractor shall not take a
prime contract for any project involving trades other than framing or
carpentry unless the prime contract requires at least two unrelated
building trades or crafts other than framing or carpentry, or unless
the general building General Building
contractor holds the appropriate license classification or
subcontracts with an appropriately licensed contractor to perform the
work. A general building General Building
contractor shall not take a subcontract involving trades other
than framing or carpentry, unless the subcontract requires at least
two unrelated trades or crafts other than framing or carpentry, or
unless the general building General Building
contractor holds the appropriate license classification. The
general building General Building
contractor may not count framing or carpentry in calculating the two
unrelated trades necessary in order for the general building
General Building contractor to be able to take
a prime contract or subcontract for a project involving other trades.
(c) No general building General Building
contractor shall contract for any project that includes the
"C-16" Fire Protection (C-16)
classification as provided for in Section 7026.12 or the
"C-57" Well Drilling (C-57) classification as
provided for in Section 13750.5 of the Water Code, unless the
general building General Building
contractor holds the appropriate license classification, or
subcontracts with the appropriately licensed contractor.
SEC. 42. Section 7058 of the Business
and Professions Code is amended to read:
7058. (a) A specialty Specialty
contractor is a contractor whose operations involve the performance
of construction work requiring special skill and whose principal
contracting business involves the use of specialized building trades
or crafts.
(b) A specialty Specialty contractor
includes a contractor whose operations include the business of
servicing or testing fire extinguishing systems.
(c) A specialty Specialty contractor
includes a contractor whose operations are concerned with the
installation and laying of carpets, linoleum, and resilient floor
covering.
(d) A specialty Specialty contractor
includes a contractor whose operations are concerned with preparing
or removing roadway construction zones, lane closures, flagging, or
traffic diversions on roadways, including, but not limited to, public
streets, highways, or any public conveyance.
SEC. 43. Section 7058.5 of the Business
and Professions Code is amended to read:
7058.5. (a) No contractor shall engage in asbestos-related work,
as defined in Section 6501.8 of the Labor Code, which involves 100
square feet or more of surface area of asbestos containing materials,
unless the qualifier for the license passes an asbestos
certification examination. Additional updated asbestos certification
examinations may be required based on new health and safety
information. The decision on whether to require an updated
certification examination shall be made by the Contractors'
Contractors State License Board, in consultation
with the Division of Occupational Safety and Health in the
Department of Industrial Relations and the State Department of
Public Health Services.
No asbestos certification examination shall be required for
contractors involved with the installation, maintenance, and repair
of asbestos cement pipe or sheets, vinyl asbestos floor materials, or
asbestos bituminous or resinous materials.
"Asbestos" as used in this section, has the same meaning as
defined in Section 6501.7 of the Labor Code.
(b) The Contractors' Contractors
State License Board shall develop, and deliver to all applicants with
the request for bond and fee, a booklet containing information
relative to handling and disposal of asbestos, together with an open
book examination concerning asbestos-related work. All applicants for
an initial contractor's contractor
license and all applicants filing a delinquent renewal application
who have not previously completed the open book examination shall
complete and sign the open book examination and submit it to the
Contractors' Contractors State License
Board with the required renewal or bond and fee.
SEC. 44. Section 7058.6 of the Business
and Professions Code is amended to read:
7058.6. (a) The board shall not issue an asbestos certification,
as required by Section 7058.5, unless the contractor is registered
with the Division of Occupational Safety and Health of the Department
of Industrial Relations pursuant to Section 6501.5 of the Labor
Code. The board may issue an asbestos certification to a contractor
who is not registered, provided the contractor in a written statement
acknowledges that he or she does not perform asbestos-related work.
The board shall notify both the division and the contractor, in
writing, of the contractor's passage of the certification
examination, for the purpose of allowing the contractor to satisfy
the requirement of paragraph (1) of subdivision (a) of Section 6501.5
of the Labor Code. The contractor shall register with the division
within 90 days from the date the contractor is notified of the
passage of the certification examination. The board may require a
reexamination if the contractor fails to register within 90 days
following issuance of the notification. Applicable test fees shall be
paid for any reexamination required under this section.
(b) Any contractor who is certified to engage in asbestos-related
work shall present proof of current registration with the division
pursuant to Section 6501.5 of the Labor Code upon application for
renewal of his or her license, if the contractor engages in
asbestos-related work, as defined in Section 6501.8 of the Labor
Code.
(c) A contractor who is not certified pursuant to this section may
bid on and contract to perform a project involving asbestos-related
work as long as the asbestos-related work is performed by a
contractor who is certified and registered pursuant to this section
and Section 6501.5 of the Labor Code.
(d) The board shall obtain and periodically update the list of
contractors certified to engage in asbestos-related work who are
registered pursuant to Section 6501.5 of the Labor Code.
This section shall become operative on July 1, 1989.
SEC. 45. Section 7058.7 of the Business
and Professions Code is amended to read:
7058.7. (a) No contractor may engage in a removal or remedial
action, as defined in subdivision (d), unless the qualifier for the
license has passed an approved hazardous substance certification
examination.
(b) (1) The Contractors' Contractors
State License Board, the Division of Occupational Safety and Health
of the Department of Industrial Relations, and the Department of
Toxic Substances Control shall jointly select an advisory committee,
which shall be composed of two representatives of hazardous substance
removal workers in California, two general engineering contractors
in California, and two representatives of insurance companies in
California who shall be selected by the Insurance Commissioner.
(2) The Contractors' Contractors
State License Board shall develop a written test for the
certification of contractors engaged in hazardous substance removal
or remedial action, in consultation with the Division of Occupational
Safety and Health, the State Water Resources Control Board, the
Department of Toxic Substances Control, and the advisory committee.
(c) The Contractors' Contractors
State License Board may require additional updated approved hazardous
substance certification examinations of licensees currently
certified based on new public or occupational health and safety
information. The Contractors' Contractors
State License Board, in consultation with the Department of
Toxic Substances Control and the State Water Resources Control Board,
shall approve other initial and updated hazardous substance
certification examinations and determine whether to require an
updated certification examination of all current certificate holders.
(d) For purposes of this section "removal or remedial action" has
the same meaning as found in Chapter 6.8 (commencing with Section
25300) of Division 20 of the Health and Safety Code, if the action
requires the contractor to dig into the surface of the earth and
remove the dug material and the action is at a site listed pursuant
to Section 25356 of the Health and Safety Code or any other site
listed as a hazardous substance release site by the Department of
Toxic Substances Control or a site listed on the National Priorities
List compiled pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. Sec. 9601 et
seq.). "Removal or remedial action" does not include asbestos-related
work, as defined in Section 6501.8 of the Labor Code, or work
related to a hazardous substance spill on a highway.
(e) (1) A contractor may not install or remove an underground
storage tank, unless the contractor has passed the hazardous
substance certification examination developed pursuant to this
section.
(2) A contractor who is not certified may bid on or contract for
the installation or removal of an underground tank, if the work is
performed by a contractor who is certified pursuant to this section.
(3) For purposes of this subdivision, "underground storage tank"
has the same meaning as defined in subdivision (y) of Section 25281
of the Health and Safety Code.
SEC. 46. Section 7058.8 of the Business
and Professions Code is amended to read:
7058.8. The board shall make available to the public ,
upon request , information about contracting for the
removal or encapsulation of asbestos-containing materials in a
building including all of the following:
(a) Steps to take when contracting with a company to remove
asbestos.
(b) Existing laws and regulations pertaining to asbestos-related
work in California.
(c) Basic health information as contained in the United States
Environmental Protection Agency publication, "Guidance for
Controlling Asbestos-Containing Materials in Buildings."
(d) A current list of contractors who are certified pursuant to
Section 7058.5 to engage in asbestos-related work and who are
registered pursuant to Section 6501.5 of the Labor Code.
This section shall become operative on July 1, 1989.
SEC. 47. Section 7059 of the Business
and Professions Code is amended to read:
7059. (a) The board may adopt reasonably necessary rules and
regulations to effect the classification of contractors in a manner
consistent with established usage and procedure as found in the
construction business, and may limit the field and scope of the
operations of a licensed contractor to those in which he or she is
classified and qualified to engage, as defined by Sections 7055,
7056, 7057, and 7058. A licensee may make application for
classification and be classified in more than one classification if
the licensee meets the qualifications prescribed by the board for
such additional classification or classifications. The application
shall be in a form as prescribed by the registrar and shall be
accompanied by the application fee fixed by this chapter. No license
fee shall be charged for an additional classification or
classifications.
Nothing contained in this section shall prohibit a
specialty Specialty contractor from taking and
executing a contract involving the use of two or more crafts or
trades, if the performance of the work in the crafts or trades, other
than in which he or she is licensed, is incidental and supplemental
to the performance of the work in the craft for which the
specialty Specialty contractor is licensed.
(b) In public works contracts, as defined in Section 1101 of the
Public Contract Code, the awarding authority shall determine the
license classification necessary to bid and perform the project. In
no case shall the awarding authority award a prime contract to a
specialty Specialty contractor whose
classification constitutes less than a majority of the project. When
a specialty Specialty contractor is
authorized to bid a project, all work to be performed outside of his
or her license specialty, except work authorized by subdivision (a),
shall be performed by a licensed subcontractor in compliance with the
Subletting and Subcontracting Fair Practices Act (Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code).
SEC. 48. Section 7065.2 of the Business
and Professions Code is amended to read:
7065.2. Notwithstanding Section 7065, the registrar may waive the
examination for a contractor's contractor
license if the applicant has previously held a valid
contractor's contractor license in this state
and has been acting in the capacity of a contractor for the United
States government in a position exempt from licensure under this
chapter.
SEC. 49. Section 7065.3 of the Business
and Professions Code is amended to read:
7065.3. Notwithstanding Section 7065, upon a conclusive showing
by a licensee that he or she possesses experience satisfactory to the
registrar in the classification applied for, an additional
classification may be added, without further examination, under all
of the following conditions:
(a) For five of the seven years immediately preceding the
application, the qualifying individual of the licensee has been
listed as a member of the personnel of any licensee whose license was
active and in good standing, and who during the period listed on a
license was actively engaged in the licensee's construction
activities.
(b) The qualifying individual for the applicant has had within the
last 10 years immediately preceding the filing of the application,
not less than four years experience as a journeyman, foreman,
supervising employee or contractor in the classification within which
the licensee intends to engage in the additional classification as a
contractor.
(c) The application is, as determined by the registrar, for a
classification which that is closely
related to the classification or classifications in which the
licensee is licensed, or the qualifying individual is associated with
a licensed general engineering General
Engineering contractor or licensed general building
General Building contractor and is applying for
a classification which that is a
significant component of the licensed contractor's construction
business as determined by the registrar. This section shall not apply
to an applicant who is licensed solely within the
limited-specialty Limited-Specialty
classifications.
Pursuant to Section 7065, the registrar shall conduct a
comprehensive field investigation of no less than 3 percent of
applications filed under this section to ensure that the applicants
met the experience requirements of this section and shall make
public, at quarterly meetings of the Contractors'
Contractors State License Board, a listing of all
applications approved under this section during the previous 12
months, including, but not limited to, the name of the applicant,
license number, classification applied for, and existing
classifications.
SEC. 50. Section 7068.5 of the Business
and Professions Code is amended to read:
7068.5. It is a misdemeanor for any person other than the
examinee named in the application to take the qualifying examination
on behalf of an applicant for a contractor's
contractor license.
SEC. 51. Section 7071.5 of the Business
and Professions Code is amended to read:
7071.5. The contractor's contractor
bond required by this article shall be executed by an admitted
surety in favor of the State of California, in a form acceptable to
the registrar and filed with the registrar by the licensee or
applicant. The contractor's contractor
bond shall be for the benefit of the following:
(a) A homeowner contracting for home improvement upon the
homeowner's personal family residence damaged as a result of a
violation of this chapter by the licensee.
(b) A property owner contracting for the construction of a
single-family dwelling who is damaged as a result of a violation of
this chapter by the licensee. That property owner shall only recover
under this subdivision if the single-family dwelling is not intended
for sale or offered for sale at the time the damages were incurred.
(c) A person damaged as a result of a willful and deliberate
violation of this chapter by the licensee, or by the fraud of the
licensee in the execution or performance of a construction contract.
(d) An employee of the licensee damaged by the licensee's failure
to pay wages.
(e) A person or entity, including an express trust fund described
in Section 3111 of the Civil Code, to whom a portion of the
compensation of an employee of a licensee is paid by agreement with
that employee or the collective bargaining agent of that employee,
damaged as the result of the licensee's failure to pay fringe
benefits for its employees, including, but not limited to, employer
payments described in Section 1773.1 of the Labor Code and
regulations thereunder (without regard to whether the work was
performed on a private or public work). Damage to an express trust
fund is limited to actual employer payments required to be made on
behalf of employees of the licensee, as part of the overall
compensation of those employees, which the licensee fails to pay.
SEC. 52. Section 7071.6 of the Business
and Professions Code is amended to read:
7071.6. (a) The board shall require as a condition precedent to
the issuance, reinstatement, reactivation, renewal, or continued
maintenance of a license, that the applicant or licensee file or have
on file a contractor's contractor bond
in the sum of twelve thousand five hundred dollars ($12,500).
(b) Excluding the claims brought by the beneficiaries specified in
subdivision (a) of Section 7071.5, the aggregate liability of a
surety on claims brought against a bond required by this section
shall not exceed the sum of seven thousand five hundred dollars
($7,500). The bond proceeds in excess of seven thousand five hundred
dollars ($7,500) shall be reserved exclusively for the claims of the
beneficiaries specified in subdivision (a) of Section 7071.5.
However, nothing in this section shall be construed so as
to prevent any beneficiary specified in subdivision (a) of
Section 7071.5 from claiming or recovering the full measure of the
bond required by this section.
(c) No bond shall be required of a holder of a license that has
been inactivated on the official records of the board during the
period the license is inactive.
(d) Notwithstanding any other provision of law, as a condition
precedent to licensure, the board may require an applicant to post a
contractor's contractor bond in twice
the amount required pursuant to subdivision (a) until the time that
the license is renewed, under the following conditions:
(1) The applicant has either been convicted of a violation of
Section 7028 or has been cited pursuant to Section 7028.7.
(2) If the applicant has been cited pursuant to Section 7028.7,
the citation has been reduced to a final order of the registrar.
(3) The violation of Section 7028, or the basis for the citation
issued pursuant to Section 7028.7, constituted a substantial injury
to the public.
SEC. 53. Section 7071.10 of the
Business and Professions Code is amended to read:
7071.10. The qualifying individual's bond required by this
article shall be executed by an admitted surety insurer in favor of
the State of California, in a form acceptable to the registrar and
filed with the registrar by the qualifying individual. The qualifying
individual's bond shall not be required in addition to the
contractor's contractor bond when, as set forth
under paragraph (1) of subdivision (b) of Section 7068, the
individual proprietor has qualified for the license by his or her
personal appearance, or the qualifier is a general partner as set
forth under paragraph (2) of subdivision (b) of Section 7068. The
qualifying individual's bond shall be for the benefit of the
following persons:
(a) A homeowner contracting for home improvement upon the
homeowner's personal family residence damaged as a result of a
violation of this chapter by the licensee.
(b) A property owner contracting for the construction of a
single-family dwelling who is damaged as a result of a violation of
this chapter by the licensee. That property owner shall only recover
under this subdivision if the single-family dwelling is not intended
for sale or offered for sale at the time the damages were incurred.
(c) A person damaged as a result of a willful and deliberate
violation of this chapter by the licensee, or by the fraud of the
licensee in the execution or performance of a construction contract.
(d) An employee of the licensee damaged by the licensee's failure
to pay wages.
(e) A person or entity, including an express trust fund described
in Section 3111 of the Civil Code, to whom a portion of the
compensation of an employee of a licensee is paid by agreement with
that employee or the collective bargaining agent of that employee,
that is damaged as the result of the licensee's failure to pay fringe
benefits for its employees including, but not limited to, employer
payments described in Section 1773.1 of the Labor Code and
regulations adopted thereunder (without regard to whether the work
was performed on a public or private work). Damage to an express
trust fund is limited to employer payments required to be made on
behalf of employees of the licensee, as part of the overall
compensation of those employees, which the licensee fails to pay.
SEC. 54. Section 7071.12 of the
Business and Professions Code is amended to read:
7071.12. (a) Instead of the bond provided by this article ,
a deposit may be given pursuant to Article 7 (commencing with
Section 995.710) of Chapter 2 of Title 14 of Part 2 of the Code of
Civil Procedure.
(b) If the board is notified, in writing, of a civil action
against the deposit authorized under this section, the deposit or any
portion thereof shall not be released for any purpose, except as
determined by the court.
(c) If any deposit authorized under this section is insufficient
to pay, in full, all claims that have been adjudicated under any
action filed in accordance with this section, the sum of the deposit
shall be distributed to all claimants in proportion to the amount of
their respective claims.
(d) The following limitations periods apply to deposits in lieu of
the bond required by this article:
(1) Any action, other than an action to recover wages or fringe
benefits, against a deposit given in lieu of a contractor's
contractor bond or bond of a qualifying
individual filed by an active licensee shall be brought within three
years after the expiration of the license period during which the act
or omission occurred, or within three years of the date the license
of the active licensee was inactivated, canceled, or revoked by the
board, whichever occurs first.
(2) Any action, other than an action to recover wages or fringe
benefits, against a deposit given in lieu of a disciplinary bond
filed by an active licensee pursuant to Section 7071.8 shall be
brought within three years after the expiration of the license period
during which the act or omission occurred, or within three years of
the date the license of the active licensee was inactivated,
canceled, or revoked by the board, or within three years after the
last date for which a deposit given in lieu of a disciplinary bond
filed pursuant to Section 7071.8 was required, whichever date is
first.
(3) A claim to recover wages or fringe benefits shall be brought
within six months from the date that the wage or fringe benefit
delinquencies were discovered, but in no event shall a civil action
thereon be brought later than two years from the date the wage or
fringe benefit contributions were due.
(e) In any case in which a claim is filed against a deposit given
in lieu of a bond by any employee or by an employee organization on
behalf of an employee, concerning wages or fringe benefits based upon
the employee's employment, claims for the nonpayment shall be
filed with the Labor
Commissioner. The Labor Commissioner shall, pursuant to the authority
vested by Section 96.5 of the Labor Code, conduct hearings to
determine whether or not the wages or fringe benefits should be paid
to the complainant. Upon a finding by the commissioner that the wages
or fringe benefits should be paid to the complainant, the
commissioner shall notify the register
registrar of the findings. The registrar shall not make payment
from the deposit on the basis of findings by the commissioner for a
period of 10 days following determination of the findings. If, within
the period, the complainant or the contractor files written notice
with the registrar and the commissioner of an intention to seek
judicial review of the findings pursuant to Section 11523 of the
Government Code, the registrar shall not make payment if an action is
actually filed, except as determined by the court. If, thereafter,
no action is filed within 60 days following determination of findings
by the commissioner, the registrar shall make payment from the
deposit to the complainant.
(f) Legal fees may not be charged by the board against any deposit
posted pursuant to this section.
SEC. 55. Section 7071.14 of the
Business and Professions Code is amended to read:
7071.14. No licensee or applicant for a license under this
chapter shall be denied a contractor's
contractor license bond solely because of his race, religious
creed, color, national origin, ancestry, or sex. Whoever denies a
contractor's contractor license bond
solely on the grounds specified herein is liable for each and every
such offense for the actual damages, and two hundred fifty dollars
($250) in addition thereto, suffered by the licensee or applicant for
a license.
SEC. 56. Section 7080.5 of the Business
and Professions Code is amended to read:
7080.5. When an application has been accepted by the registrar,
the name and address of the applicant, every classification for which
the applicant has applied, and the names and titles of all personnel
who have signed the application shall be publicly posted by the
registrar, on the day following acceptance, in the office of the
Contractors' Contractors State License
Board in Sacramento.
SEC. 57. Section 7085.5 of the Business
and Professions Code is amended to read:
7085.5. Arbitrations of disputes arising out of cases filed with
or by the board shall be conducted in accordance with the following
rules:
(a) All "agreements to arbitrate" shall include the names,
addresses, and telephone numbers of the parties to the dispute, the
issue in dispute, and the amount in dollars or any other remedy
sought. The appropriate fee shall be paid by the board from the
Contractors' Contractors License Fund.
(b) (1) The board or appointed arbitration association shall
appoint an arbitrator in the following manner: immediately after the
filing of the agreement to arbitrate, the board or appointed
arbitration association shall submit simultaneously to each party to
the dispute, an identical list of names of persons chosen from the
panel. Each party to the dispute shall have seven days from the
mailing date in which to cross off any names to which it objects,
number the remaining names to indicate the order of preference, and
return the list to the board or appointed arbitration association. If
a party does not return the list within the time specified, all
persons named in the list are acceptable. From among the persons who
have been approved on both lists, and in accordance with the
designated order of mutual preference, the board or appointed
arbitration association shall appoint an arbitrator to serve. If the
parties fail to agree on any of the parties named, if acceptable
arbitrators are unable to act, or if, for any other reason, the
appointment cannot be made from the submitted lists, the board or
appointed arbitration association shall have the power to make the
appointment from among other members of the panel without the
submission of any additional lists. Each dispute shall be heard and
determined by one arbitrator unless the board or appointed
arbitration association, in its discretion, directs that a greater
number of arbitrators be appointed.
(2) In all cases in which a complaint has been referred to
arbitration pursuant to subdivision (b) of Section 7085, the board or
the appointed arbitration association shall have the power to
appoint an arbitrator to hear the matter.
(3) The board shall adopt regulations setting minimum
qualification standards for listed arbitrators based upon relevant
training, experience, and performance.
(c) No person shall serve as an arbitrator in any arbitration in
which that person has any financial or personal interest in the
result of the arbitration. Prior to accepting an appointment, the
prospective arbitrator shall disclose any circumstances likely to
prevent a prompt hearing or to create a presumption of bias. Upon
receipt of that information, the board or appointed arbitration
association shall immediately replace the arbitrator or communicate
the information to the parties for their comments. Thereafter, the
board or appointed arbitration association shall determine whether
the arbitrator should be disqualified and shall inform the parties of
its decision, which shall be conclusive.
(d) The board or appointed arbitration association may appoint
another arbitrator if a vacancy occurs, or if an appointed arbitrator
is unable to serve in a timely manner.
(e) (1) The board or appointed arbitration association shall
provide the parties with a list of the times and dates, and locations
of the hearing to be held. The parties shall notify the arbitrator,
within seven calendar days of the mailing of the list, of the times
and dates convenient to each party. If the parties fail to respond to
the arbitrator within the seven-day period, the arbitrator shall fix
the time, place, and location of the hearing. An arbitrator may, at
the arbitrator's sole discretion, make an inspection of the
construction site which is the subject of the arbitration. The
arbitrator shall notify the parties of the time and date set for the
inspection. Any party who so desires may be present at the
inspection.
(2) The board or appointed arbitration association shall fix the
time, place, and location of the hearing for all cases referred to
arbitration pursuant to subdivision (b) of Section 7085. An
arbitrator may, at the arbitrator's sole discretion, make an
inspection of the construction site which is the subject of the
arbitration. The arbitrator shall notify the parties of the time and
date set for the inspection. Any party who desires may be present at
the inspection.
(f) Any person having a direct interest in the arbitration is
entitled to attend the hearing. The arbitrator shall otherwise have
the power to require the exclusion of any witness, other than a party
or other essential person, during the testimony of any other
witness. It shall be discretionary with the arbitrator to determine
the propriety of the attendance of any other person.
(g) Hearings shall be adjourned by the arbitrator only for good
cause.
(h) A record is not required to be taken of the proceedings.
However, any party to the proceeding may have a record made at its
own expense. The parties may make appropriate notes of the
proceedings.
(i) The hearing shall be conducted by the arbitrator in any manner
which will permit full and expeditious presentation of the case by
both parties. Consistent with the expedited nature of arbitration,
the arbitrator shall establish the extent of, and schedule for, the
production of relevant documents and other information, the
identification of any witnesses to be called, and a schedule for any
hearings to elicit facts solely within the knowledge of one party.
The complaining party shall present its claims, proofs, and
witnesses, who shall submit to questions or other examination. The
defending party shall then present its defenses, proofs, and
witnesses, who shall submit to questions or other examination. The
arbitrator has discretion to vary this procedure but shall afford
full and equal opportunity to the parties for the presentation of any
material or relevant proofs.
(j) The arbitration may proceed in the absence of any party who,
after due notice, fails to be present. The arbitrator shall require
the attending party to submit supporting evidence in order to make an
award. An award for the attending party shall not be based solely on
the fact that the other party has failed to appear at the
arbitration hearing.
(k) The arbitrator shall be the sole judge of the relevancy and
materiality of the evidence offered and conformity to legal rules of
evidence shall not be required.
( l ) The arbitrator may receive and consider
documentary evidence. Documents to be considered by the arbitrator
may be submitted prior to the hearing. However, a copy shall be
simultaneously transmitted to all other parties and to the board or
appointed arbitration association for transmittal to the arbitrator
or board appointed arbitrator.
(m) The arbitrator shall specifically inquire of the parties
whether they have any further proofs to offer or witnesses to be
heard. Upon receiving negative replies, the arbitrator shall declare
the hearing closed and minutes thereof shall be recorded. If briefs
are to be filed, the hearing shall be declared closed as of the final
date set by the arbitrator for the receipt of briefs. If documents
are to be filed as requested by the arbitrator and the date set for
their receipt is later than that set for the receipt of briefs, the
later date shall be the date of closing the hearings. The time limit
within which the arbitrator is required to make the award shall
commence to run, in the absence of other agreements by the parties,
upon the closing of the hearings.
(n) The hearing may be reopened on the arbitrator's own motion.
(o) Any party who proceeds with the arbitration after knowledge
that any provision or requirement of these rules has not been
complied with, and who fails to state his or her objections to the
arbitrator in writing, within 10 calendar days of close of hearing,
shall be deemed to have waived his or her right to object.
(p) (1) Except as provided in paragraph (2), any papers or process
necessary or proper for the initiation or continuation of an
arbitration under these rules and for any court action in connection
therewith, or for the entry of judgment on an award made thereunder,
may be served upon any party (A) by regular mail addressed to that
party or his or her attorney at the party's last known address, or
(B) by personal service.
(2) Notwithstanding paragraph (1), in all cases referred to
arbitration pursuant to subdivision (b) of Section 7085 in which the
contractor fails or refuses to return an executed copy of the notice
to arbitrate within the time specified, any papers or process
specified in paragraph (1) to be sent to the contractor, including
the notice of hearing, shall be mailed by certified mail to the
contractor's address of record.
(q) The award shall be made promptly by the arbitrator, and unless
otherwise agreed by the parties, no later than 30 calendar days from
the date of closing the hearing, closing a reopened hearing, or if
oral hearing has been waived, from the date of transmitting the final
statements and proofs to the arbitrator.
The arbitrator may , for good cause , extend
any period of time established by these rules, except the time for
making the award. The arbitrator shall notify the parties of any
extension and the reason therefor.
(r) (1) The arbitrator may grant any remedy or relief that the
arbitrator deems just and equitable and within the scope of the board'
s referral and the requirements of the board. The arbitrator, in his
or her sole discretion, may award costs or expenses.
(2) The amendments made in paragraph (1) during the 2003-04
Regular Session shall not be interpreted to prevent an arbitrator
from awarding a complainant all direct costs and expenses for the
completion or repair of the project.
(s) The award shall become final 30 calendar days from the date
the arbitration award is issued. The arbitrator, upon written
application of a party to the arbitration, may correct the award upon
the following grounds:
(1) There was an evident miscalculation of figures or an evident
mistake in the description of any person, things, or property
referred to in the award.
(2) There is any other clerical error in the award, not affecting
the merits of the controversy.
An application for correction of the award shall be made within 10
calendar days of the date of service of the award by serving a copy
of the application on the arbitrator, and all other parties to the
arbitration. Any party to the arbitration may make a written
objection to the application for correction by serving a copy of the
written objection on the arbitrator, the board, and all other parties
to the arbitration, within 10 calendar days of the date of service
of the application for correction.
The arbitrator shall either deny the application or correct the
award within 30 calendar days of the date of service of the original
award by mailing a copy of the denial or correction to all parties to
the arbitration. Any appeal from the denial or correction shall be
filed with a court of competent jurisdiction and a true copy thereof
shall be filed with the arbitrator or appointed arbitration
association within 30 calendar days after the award has become final.
The award shall be in writing, and shall be signed by the arbitrator
or a majority of them. If no appeal is filed within the 30-calendar
day period, it shall become a final order of the registrar.
(t) Service of the award by certified mail shall be effective if a
certified letter containing the award, or a true copy thereof, is
mailed by the arbitrator or arbitration association to each party or
to a party's attorney of record at their last known address, address
of record, or by personally serving any party. Service may be proved
in the manner authorized in civil actions.
(u) The board shall pay the expenses of one expert witness
appointed by the board when the services of an expert witness are
requested by either party involved in arbitration pursuant to this
article and the case involves workmanship issues that are itemized in
the complaint and have not been repaired or replaced. Parties who
choose to present the findings of another expert witness as evidence
shall pay for those services. Payment for expert witnesses appointed
by the board shall be limited to the expert witness costs for
inspection of the problem at the construction site, preparation of
the expert witness' report, and expert witness fees for appearing or
testifying at a hearing. All requests for payment to an expert
witness shall be submitted on a form that has been approved by the
registrar. All requests for payment to an expert witness shall be
reviewed and approved by the board prior to payment. The registrar
shall advise the parties that names of industry experts may be
obtained by requesting this information from the registrar.
(v) The arbitrator shall interpret and apply these rules insofar
as they relate to his or her powers and duties.
(w) The following shall apply as to court procedure and exclusion
of liability:
(1) The board, the appointed arbitration association, or any
arbitrator in a proceeding under these rules is not a necessary party
in judicial proceedings relating to the arbitration.
(2) Parties to these rules shall be deemed to have consented that
judgment upon the arbitration award may be entered in any federal or
state court having jurisdiction thereof.
(3) The board, the appointed arbitration association, or any
arbitrator is not liable to any party for any act or omission in
connection with any arbitration conducted under these rules.
SEC. 58. Section 7090.5 of the Business
and Professions Code is amended to read:
7090.5. In the event If a licensee
commits a fraudulent act which that is
a ground for disciplinary action under Section 7116 of this
article , the correction of any condition resulting from
such that act shall not , in
and of itself , preclude the registrar from taking
disciplinary action under this article.
If the registrar finds a licensee has engaged in repeated acts
which that would be grounds for
disciplinary action under this article, and if by correction of
conditions resulting from those acts the licensee avoided
disciplinary action as to each individual act, the correction of
those conditions shall not , in and of itself ,
preclude the registrar from taking disciplinary action under this
article.
SEC. 59. Section 7095 of the Business
and Professions Code is amended to read:
7095. The decision may do any or all of the following
:
(a) Provide for the immediate complete suspension by the licensee
of all operations as a contractor during the period fixed by the
decision.
(b) Permit the licensee to complete any or all contracts shown by
competent evidence taken at the hearing to be then uncompleted.
(c) Impose upon the licensee compliance with such specific
conditions as may be just in connection with his or her
operations as a contractor disclosed at the hearing and may further
provide that until such conditions are complied with no application
for restoration of the suspended or revoked license shall be accepted
by the registrar.
SEC. 60. Section 7099.4 of the Business
and Professions Code is amended to read:
7099.4. If , within 15 working days from service of
the citation issued by the registrar, the licensee or applicant for
licensure fails to notify the registrar that he or she intends to
contest the citation, the citation shall be deemed a final order of
the registrar and not be subject to review by any court or agency.
The 15-day period may be extended by the registrar for cause.
SEC. 61. Section 7099.10 of the
Business and Professions Code is amended to read:
7099.10. (a) If, upon investigation, the registrar has probable
cause to believe that a licensee, an applicant for a license, or an
unlicensed individual acting in the capacity of a contractor who is
not otherwise exempted from the provisions of this chapter, has
violated Section 7027.1 by advertising for construction or work of
improvement covered by this chapter in an alphabetical or classified
directory, without being properly licensed, the registrar may issue a
citation under Section 7099 containing an order of correction
which that requires the violator to
cease the unlawful advertising and to notify the telephone company
furnishing services to the violator to disconnect the telephone
service furnished to any telephone number contained in the unlawful
advertising, and that subsequent calls to that number shall not be
referred by the telephone company to any new telephone number
obtained by that person.
(b) If the person to whom a citation is issued under subdivision
(a) notifies the registrar that he or she intends to contest the
citation, the registrar shall afford an opportunity for a hearing, as
specified in Section 7099.5, within 90 days after receiving the
notification.
(c) If the person to whom a citation and order of correction is
issued under subdivision (a) fails to comply with the order of
correction after the order is final, the registrar shall inform the
Public Utilities Commission of the violation, and the Public
Utilities Commission shall require the telephone corporation
furnishing services to that person to disconnect the telephone
service furnished to any telephone number contained in the unlawful
advertising.
(d) The good faith compliance by a telephone corporation with an
order of the Public Utilities Commission to terminate service issued
pursuant to this section shall constitute a complete defense to any
civil or criminal action brought against the telephone corporation
arising from the termination of service.
SEC. 62. Section 7104 of the Business
and Professions Code is amended to read:
7104. When the board resolves a complaint, the board
complainant shall notify the
complainant in writing be provided written
notification of its the board's
action and the reasons for taking that action. The board shall
provide the same notice in writing to the contractor provided that
the contractor is licensed and the notification would not jeopardize
an action or investigation that involves the contractor.
SEC. 63. Section 7116 of the
Business and Professions Code is amended to read:
7116. The doing of any wilful willful
or fraudulent act by the licensee as a contractor in
consequence of which another is substantially injured constitutes a
cause for disciplinary action.
SEC. 64. Section 7118.4 of the Business
and Professions Code is amended to read:
7118.4. (a) If a contractor has made an inspection for the
purpose of determining the presence of asbestos or the need for
related remedial action with knowledge that the report has been
required by a person as a condition of making a loan of money secured
by the property, or is required by a public entity as a condition of
issuing a permit concerning the property, the contractor shall
disclose orally and in writing if it is owned or has any common
ownership, or any financial relationship whatsoever, including, but
not limited to, commissions or referral fees, with an entity in the
business of performing the corrective work.
(b) This section does not prohibit a contractor that has
contracted to perform corrective work after the report of another
company has indicated the presence of asbestos or the need for
related remedial action from making its own inspection prior to
performing that corrective work or from making an inspection to
determine whether the corrective measures were successful and, if
not, thereafter peforming performing
additional corrective work.
(c) A violation of this section is grounds for disciplinary
action.
(d) A violation of this section is a misdemeanor punishable by a
fine of not less than three thousand dollars ($3,000) and not more
than five thousand dollars ($5,000), or by imprisonment in the county
jail for not more than one year, or both.
(e) For the purpose of this section, "asbestos" has the meaning
set forth in Section 6501.7 of the Labor Code.
SEC. 65. Section 7118.5 of the Business
and Professions Code is amended to read:
7118.5. Any contractor, applicant for licensure, or person
required to be licensed , who, either knowingly or
negligently, or by reason of a failure to inquire, enters into a
contract with another person who is required to be, and is not,
certified pursuant to Section 7058.5 to engage in asbestos-related
work, as defined in Section 6501.8 of the Labor Code, is subject to
the following penalties:
(a) Conviction of a first offense is an infraction punishable by a
fine of not less than one thousand dollars ($1,000) or more than
three thousand dollars ($3,000), and by possible revocation or
suspension of any contractor's contractor
license.
(b) Conviction of a subsequent offense is a misdemeanor requiring
revocation or suspension of any contractor's
contractor license, and a fine of not less than three thousand
dollars ($3,000) or more than five thousand dollars ($5,000), or
imprisonment in the county jail for not more than one year, or both
the fine and imprisonment.
SEC. 66. Section 7118.6 of the Business
and Professions Code is amended to read:
7118.6. Any contractor who, either knowingly or negligently, or
by reason of a failure to inquire, enters into a contract with
another person who is required to be, and is not certified pursuant
to Section 7058.7 to engage in a removal or remedial action, as
defined in Section 7058.7, is subject to the following penalties:
(a) Conviction of a first offense is an infraction punishable by a
fine of not less than one thousand dollars ($1,000) or more than
three thousand dollars ($3,000), and by possible revocation or
suspension of any contractor's contractor
license.
(b) Conviction of a subsequent offense is a misdemeanor requiring
revocation or suspension of any contractor's
contractor license, and a fine of not less than three thousand
dollars ($3,000) or more than five thousand dollars ($5,000), or
imprisonment in the county jail for not more than one year, or both
the fine and imprisonment.
SEC. 67. Section 7119 of the Business
and Professions Code is amended to read:
7119. Wilful Willful failure or
refusal without legal excuse on the part of a licensee as a
contractor to prosecute a construction project or operation with
reasonable diligence causing material injury to another constitutes a
cause for disciplinary action.
SEC. 68. Section 7120 of the Business
and Professions Code is amended to read:
7120. Wilful Willful or deliberate
failure by any licensee or agent or officer thereof ,
to pay any moneys , when due for any
materials or services rendered in connection with his or her
operations as a contractor, when he or she has the
capacity to pay or when he or she has received sufficient
funds therefor as payment for the particular construction work,
project, or operation for which the services or materials were
rendered or purchased constitutes a cause for disciplinary action, as
does the false denial of any such amount due or the validity of the
claim thereof with intent to secure for himself or herself
, his or her employer, or other person, any discount upon
such indebtedness or with intent to hinder, delay, or defraud the
person to whom such indebtedness is due.
SEC. 69. Section 7123.5 of the Business
and Professions Code is amended to read:
7123.5. If a contractor is convicted of violating Section 396 of
the Penal Code or any substantially similar local ordinance in
connection with the sale, or offer for sale, of repair or
reconstruction services, as defined in Section 396 of the Penal Code,
the Contractors' Contractors State
License Board shall take disciplinary action against the contractor,
which shall include a suspension of at least six months or the
permanent revocation of the contractor's license.
SEC. 70. Section 7124.6 of
the Business and Professions Code is amended to
read:
7124.6. (a) The registrar shall make available to members of the
public the date, nature, and status of all complaints on file against
a licensee that do either of the following:
(1) Have been referred for accusation.
(2) Have been referred for investigation after a determination by
board enforcement staff that a probable violation has occurred, and
have been reviewed by a supervisor, and regard allegations that
, if proven , would present a risk of harm to the
public and would be appropriate for suspension or revocation of the
contractor's license or criminal prosecution.
(b) The board shall create a disclaimer that shall accompany the
disclosure of a complaint that shall state that the complaint is an
allegation. The disclaimer may also contain any other information the
board determines would be relevant to a person evaluating the
complaint.
(c) A complaint resolved in favor of the contractor shall not be
subject to disclosure.
(d) Except as described in subdivision (e), the registrar shall
make available to members of the public the date, nature, and
disposition of all legal actions.
(e) Disclosure of legal actions shall be limited as follows:
(1) Citations shall be disclosed from the date of issuance and for
five years after the date of compliance if no additional
disciplinary actions have been filed against the licensee during the
five-year period. If additional disciplinary actions were filed
against the licensee during the five-year period, all disciplinary
actions shall be disclosed for as long as the most recent
disciplinary action is subject to disclosure under this section. At
the end of the specified time period, those citations shall no longer
be disclosed.
(2) Accusations that result in suspension, stayed suspension, or
stayed revocation of the contractor's
contractor license shall be disclosed from the date the
accusation is filed and for seven years after the accusation has been
settled, including the terms and conditions of probation if no
additional disciplinary actions have been filed against the licensee
during the seven-year period. If additional disciplinary actions were
filed against the licensee during the seven-year period, all
disciplinary actions shall be posted for as long as the most recent
disciplinary action is subject to disclosure under this section. At
the end of the specified time period, those accusations shall no
longer be disclosed.
(3) All revocations that are not stayed shall be disclosed
indefinitely from the effective date of the revocation.
SEC. 71. Section 7125 of the Business
and Professions Code , as added by Section 2 of Chapter 38
of the Statutes of 2006, is amended to read:
7125. (a) The board shall require , as a condition
precedent to the issuance, reinstatement, reactivation, renewal, or
continued maintenance of a license, that the applicant or licensee
have on file at all times a current and valid Certificate of Workers'
Compensation Insurance or Certification of Self-Insurance. A
Certificate of Workers' Compensation Insurance shall be issued and
filed, electronically or otherwise, by one or more insurers duly
licensed to write workers' compensation insurance in this state. A
Certification of Self-Insurance shall be issued and filed by the
Director of Industrial Relations. If reciprocity conditions exist, as
defined in Section 3600.5 of the Labor Code, the registrar shall
require the information deemed necessary to assure compliance with
this section.
(b) This section does not apply to an applicant or licensee who
has no employees provided that he or she files a statement with the
board on a form prescribed by the registrar prior to the issuance,
reinstatement, reactivation, or continued maintenance of a license,
certifying that he or she does not employ any person in any manner so
as to become subject to the workers' compensation laws of California
or is not otherwise required to provide for workers' compensation
insurance coverage under California law.
(c) No Certificate of Workers' Compensation Insurance,
Certification of Self-Insurance, or exemption-certificate is required
of a holder of a license that has been inactivated on the official
records of the board during the period the license is inactive.
(d) The insurer, including the State Compensation Insurance Fund,
shall report to the registrar the following information for any
policy required under this section: name, license number, policy
number, dates that coverage is scheduled to commence and lapse, and
cancellation date, if applicable.
(e) This section shall become operative on January 1, 2011.
SEC. 72. Section 7126 of the Business
and Professions Code is amended to read:
7126. Any licensee or agent or officer thereof, who violates, or
omits to does not comply with, any of
the provisions of this article is guilty of a misdemeanor.
SEC. 73. Section 7135 of the Business
and Professions Code is amended to read:
7135. (a) The fees and civil penalties received under this
chapter shall be deposited in the Contractors'
Contractors License Fund. All moneys in the fund are
hereby appropriated for the purposes of this chapter.
(b) It is the intent of the Legislature that the board shall use
moneys appropriated from the fund to improve its administrative and
investigative oversight activities and capacity.
SEC. 74. Section 7136 of the Business
and Professions Code is amended to read:
7136. The director shall designate a sum not to exceed 10 percent
of the total income of the Contractors'
Contractors State License Board for each fiscal year to be
transferred to the Consumer Affairs Fund as the board's share of the
cost of administration of the department.
SEC. 75. Section 7137.5 of the Business
and Professions Code is amended to read:
7137.5. The sum of ten thousand dollars ($10,000) shall be
transferred from the Contractors' Contr
actors License Fund to the Controller for the exclusive
use of the California Uniform Construction Cost Accounting
Commission.
The commission shall prepare a recommendation to the Legislature
for a local public agency source to fund the commission beginning
July 1, 1991, which will provide revenue supported by the contract
activities represented by the commission's authority.
Upon adoption of this funding program, the commission shall
reimburse the Contractors' Contractors
License Fund in the amount of ten thousand dollars ($10,000).
SEC. 76. Section 7138 of the Business
and Professions Code is amended to read:
7138. Notwithstanding any other provision of law, any fee paid in
connection with any service or application covered by Section 7137
shall accrete to the Contractors' Contractors
License Fund as an earned fee and shall not be refunded.
SEC. 77. Section 7139.1 of the Business
and Professions Code is amended to read:
7139.1. The Legislature hereby finds and declares all of the
following:
(a) There is a demand and increasing need for construction
management education programs and resources within the postsecondary
education system that prepare graduates for the management of
construction operations and companies regulated by the
Contractors' Contractors State License Law and
enforced by the Contractors' Contractors
State License Board.
(b) Although construction management programs do exist within the
state university system, these programs are woefully underfunded and
insufficiently funded to provide training on state-of-the-art
management information systems for either graduates or extension
programs for continuing education of licensed contractors.
Construction industry associations have provided some assistance
through direct grants and scholarships, but the industrywide service
of these programs and the need for additional assistance mandates
broad based industrywide support.
(c) It is the intent of the Legislature that by enabling
contractors to designate a portion of their licensure fee and
providing a format for contractors to contribute funds to
construction management education, this article will receive broad
based industry support. In addition, this article allows the
contractor to demonstrate the importance of construction management
education. This assistance will enable greater development of
construction management curricula and will improve the overall
quality of construction by providing construction management training
to California licensed contractors and their current and future
management personnel.
SEC. 78. Section 7139.2 of the Business
and Professions Code is amended to read:
7139.2. (a) There is hereby created the Construction Management
Education Account (CMEA) as a separate account in the
Contractors' Contractors License Fund for the
purposes of construction management education. Funds in the account
shall be available for the purposes of this article upon
appropriation by the Legislature.
(b) The Contractors' Contractors
State License Board shall allow a contractor to make a contribution
to the Construction Management Education Account at the time of the
contractor license fee payment. The license fee form shall clearly
display this alternative on its face and shall clearly inform the
licensee that this provision is a contribution to the Construction
Management Education Account and is in addition to the fees.
(c) The board may accept grants from federal, state, or local
public agencies, or from private foundations or individuals, in order
to assist it in carrying out its duties, functions, and powers under
this article. Grant moneys shall be deposited into the Construction
Management Education Account.
SEC. 79. Section 7139.5 of the Business
and Professions Code is amended to read:
7139.5. Grants shall be made pursuant to this article to public
postsecondary educational institutions that meet the qualifications
specified in Section 7139. 4 7139.4 in
the following amounts:
(a) Three thousand dollars ($3,000) per graduate during the past
academic year for institutions qualifying under subdivision (a) of
Section 7139.4.
(b) Three thousand dollars ($3,000) per graduate during the past
academic year for institutions qualifying under subdivision (b) of
Section 7139.4.
(c) Three thousand dollars ($3,000) per graduate placed with
California licensed contractors during the past academic year for
institutions qualifying under subdivision (c) of Section 7139.4.
These funds shall be used for the purpose of becoming accredited by
the American Council for Construction Education and shall be
available for up to three years. The board may continue to provide
this grant to an institution that in its judgment is meeting the
intent of this act and is continuing its development towards
accreditation.
(d) Institutions qualifying under subdivision (d) of Section
7139.4 may receive a grant in an amount up to twenty-five thousand
dollars ($25,000) per year for up to two years. Thereafter, these
institutions may receive grants based upon the criteria described in
subdivisions (a) to (c), inclusive. The board may continue to award a
grant to an institution that in its judgment is meeting the intent
of this article and is continuing its development towards
accreditation.
SEC. 80. Section 7139.8 of the Business
and Professions Code is amended to read:
7139.8. The president of each public postsecondary educational
institution receiving a grant under this article shall submit, with
its respective request for a grant each year following the initial
year for which grants are issued, a report to the board delineating
the amount of the past grant awarded from the Construction Management
Education Account to that institution and the utilization of those
funds. The report shall include, but not be limited to, the
following:
(a) The number of graduates placed with the
California licensed contractors during the previous academic year.
(b) The expected enrollment in construction management courses in
the upcoming academic year.
(c) Continuing education and extension courses offered during the
previous academic year , and their enrollments.
SEC. 81. Section 7139.10 of the
Business and Professions Code is amended to read:
7139.10. It is the intent of the Legislature that state funding
for the grants authorized to be awarded under this section be
provided only from the Contractors'
Contractors License Fund to the extent that funds are available
in that fund and that no other state funding be provided for those
grants.
SEC. 82. Section 7145 of the Business
and Professions Code is amended to read:
7145. The registrar may refuse to renew a license for the failure
or refusal by the licensee to complete the renewal application
prescribed by the registrar. If a licensee fails to return an
application for renewal which that was
rejected for insufficiency or incompleteness within 90 days from the
original date of rejection, the application and fee shall be deemed
abandoned. Any application abandoned may not be reinstated. However,
the applicant may file another application accompanied by the
required fee.
The registrar may review and accept the petition of a licensee who
disputes the invalidation of his or her application for renewal upon
a showing of good cause. This petition shall be received within 90
days from the date the renewal application is deemed abandoned.
SEC. 83. Section 7145.5 of the Business
and Professions Code is amended to read:
7145.5. (a) The registrar may refuse to issue, reinstate,
reactivate, or renew a license or may suspend a license for the
failure of a licensee to resolve all outstanding final liabilities,
which include taxes, additions to tax, penalties, interest, and any
fees that may be assessed by the board, the Department of Industrial
Relations, the Employment Development Department, or the Franchise
Tax Board.
(1) Until the debts covered by this section are satisfied, the
qualifying person and any other personnel of record named on a
license that has been suspended under this section shall be
prohibited from serving in any capacity that is subject to licensure
under this chapter, but shall be permitted to act in the capacity of
a nonsupervising bona fide employee.
(2) The license of any other renewable licensed entity with any of
the same personnel of record that have been assessed an outstanding
liability covered by this section shall be suspended until the debt
has been satisfied or until the same personnel of record disassociate
themselves from the renewable licensed entity.
(b) The refusal to issue a license or the suspension of a license
as provided by this section shall be applicable only if the registrar
has mailed a notice preliminary to the refusal or suspension that
indicates that the license will be refused or suspended by a date
certain. This preliminary notice shall be mailed to the licensee at
least 60 days before the date certain.
(c) In the case of outstanding final liabilities assessed by the
Franchise Tax Board, this section shall be operative within 60 days
after the Contractors' Contractors
State License Board has provided the Franchise Tax Board with the
information required under Section 30, relating to licensing
information that includes the federal employee identification number
or social security number.
(d) All versions of the application for contractors' licenses
shall include, as part of the application, an authorization by the
applicant, in the form and manner mutually agreeable to the Franchise
Tax Board and the board, for the Franchise Tax Board to disclose the
tax information that is required for the registrar to administer
this section. The Franchise Tax Board may from time to time audit
these authorizations.
SEC. 84. Section 7151 of the Business
and Professions Code is amended to read:
7151. "Home improvement" means the repairing, remodeling,
altering, converting, or modernizing of, or adding to, residential
property and shall include, but not be limited to, the construction,
erection, replacement, or improvement of driveways, swimming pools,
including spas and hot tubs, terraces, patios, awnings, storm
windows, landscaping, fences, porches, garages, fallout shelters,
basements, and other improvements of the structures or land
which that is adjacent to a dwelling house.
"Home improvement" shall also mean the installation of home
improvement goods or the furnishing of home improvement services.
For purposes of this chapter, "home improvement goods or services"
means goods and services, as defined in Section 1689.5 of the Civil
Code, which are bought in connection with the improvement of real
property. Such home improvement goods and services include, but are
not limited to, carpeting, texture coating, fencing, air conditioning
or heating equipment, and termite extermination. Home improvement
goods include goods which that are to
be so affixed to real property as to become a part of real property
whether or not severable therefrom.
SEC. 85. Section 7155 of the Business
and Professions Code is amended to read:
7155. Violation of any provision of this chapter by a home
improvement salesman constitutes cause for disciplinary action. The
registrar may suspend or revoke the registration of the home
improvement salesman if he or she is found to be in
violation. The disciplinary proceedings shall be conducted in
accordance with the provisions of Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code.
SEC. 86. Section 7159 of the Business
and Professions Code is amended to read:
7159. (a) (1) This section identifies the projects for which a
home improvement contract is required, outlines the contract
requirements, and lists the items that shall be included in the
contract, or may be provided as an attachment.
(2) This section does not apply to service and repair contracts
that are subject to Section 7159.10, if the contract for the
applicable services complies with Sections 7159.10 to 7159.14,
inclusive.
(3) This section does not apply to the sale, installation, and
servicing of a fire alarm sold in conjunction with an alarm system,
as defined in subdivision (n) of Section 7590.1, if all costs
attributable to making the fire alarm system operable, including sale
and installation costs, do not exceed five hundred dollars ($500),
and the licensee complies with the requirements set forth in Section
7159.9.
(4) This section does not apply to any costs associated with
monitoring a burglar or fire alarm system.
(5) Failure by the licensee, his or her agent or salesperson, or
by a person subject to be licensed under this chapter, to provide the
specified information, notices, and disclosures in the contract, or
to otherwise fail to comply with any provision of this section, is
cause for discipline.
(b) For purposes of this section, "home improvement contract"
means an agreement, whether oral or written, or contained in one or
more documents, between a contractor and an owner or between a
contractor and a tenant, regardless of the number of residence or
dwelling units contained in the building in which the tenant resides,
if the work is to be performed in, to, or upon the residence or
dwelling unit of the tenant, for the performance of a home
improvement, as defined in Section 7151, and includes all labor,
services, and materials to be furnished and performed thereunder, if
the aggregate contract price specified in one or more improvement
contracts, including all labor, services, and materials to be
furnished by the contractor, exceeds five hundred dollars ($500).
"Home improvement contract" also means an agreement, whether oral or
written, or contained in one or more documents, between a
salesperson, whether or not he or she is a home improvement
salesperson, and an owner or a tenant, regardless of the number of
residence or dwelling units contained in the building in which the
tenant resides, which provides for the sale, installation, or
furnishing of home improvement goods or services.
(c) In addition to the specific requirements listed under this
section, every home improvement contract and any person subject to
licensure under this chapter or his or her agent or salesperson shall
comply with all of the following:
(1) The writing shall be legible.
(2) Any printed form shall be readable. Unless a larger typeface
is specified in this article, text in any printed form shall be in at
least 10-point typeface and the headings shall be in at least
10-point boldface type.
(3) (A) Before any work is started, the contractor shall give the
buyer a copy of the contract signed and dated by both the contractor
and the buyer. The buyer's receipt of the copy of the contract
initiates the buyer's rights to cancel the contract pursuant to
Sections 1689.5 to 1689.14, inclusive, of the Civil Code.
(B) The contract shall contain on the first page, in a typeface no
smaller than that generally used in the body of the document, both
of the following:
(i) The date the buyer signed the contract.
(ii) The name and address of the contractor to which the
applicable "Notice of Cancellation" is to be mailed, immediately
preceded by a statement advising the buyer that the "Notice of
Cancellation" may be sent to the contractor at the address noted on
the contract.
(4) The contract shall include a statement that, upon satisfactory
payment being made for any portion of the work performed, the
contractor, prior to any further payment being made, shall furnish to
the person contracting for the home improvement or swimming pool
work a full and unconditional release from any potential lien
claimant claim or mechanic's lien authorized pursuant to Section 3110
of the Civil Code for that portion of the work for which payment has
been made.
(5) A change-order form for changes or extra work shall be
incorporated into the contract and shall become part of the contract
only if it is in writing and signed by the parties prior to the
commencement of any work covered by a change order.
(6) The contract shall contain, in close proximity to the
signatures of the owner and contractor, a notice stating that the
owner or tenant has the right to require the contractor to have a
performance and payment bond.
(7) If the contract provides for a contractor to furnish joint
control, the contractor shall not have any financial or other
interest in the joint control.
(8) The provisions of this section are not exclusive and do not
relieve the contractor from compliance with any other applicable
provision of law.
(d) A home improvement contract and any changes to the contract
shall be in writing and signed by the parties to the contract prior
to the commencement of work covered by the contract or an applicable
change order and, except as provided in paragraph (8) of subdivision
(a) of Section 7159.5, shall include or comply with all of the
following:
(1) The name, business address, and license number of the
contractor.
(2) If applicable, the name and registration number of the home
improvement salesperson that solicited or negotiated the contract.
(3) The following heading on the contract form that identifies the
type of contract in at least 10-point boldface type: "Home
Improvement."
(4) The following statement in at least 12-point boldface type:
"You are entitled to a completely filled in copy of this agreement,
signed by both you and the contractor, before any work may be
started."
(5) The heading: "Contract Price," followed by the amount of the
contract in dollars and cents.
(6) If a finance charge will be charged, the heading: "Finance
Charge," followed by the amount in dollars and cents. The finance
charge is to be set out separately from the contract amount.
(7) The heading: "Description of the Project and Description of
the Significant Materials to be Used and Equipment to be Installed,"
followed by a description of the project and a description of the
significant materials to be used and equipment to be installed. For
swimming pools, the project description required under this paragraph
also shall include a plan and scale drawing showing the shape, size,
dimensions, and the construction and equipment specifications.
(8) If a downpayment will be charged, the details of the
downpayment shall be expressed in substantially the following form,
and shall include the text of the notice as specified in subparagraph
(C):
(A) The heading: "Downpayment."
(B) A space where the actual downpayment appears.
(C) The following statement in at least 12-point boldface type:
"THE DOWNPAYMENT MAY NOT EXCEED $1,000 OR 10 PERCENT OF THE
CONTRACT PRICE, WHICHEVER IS LESS."
(9) If payments, other than the downpayment, are to be made before
the project is completed, the details of these payments, known as
progress payments, shall be expressed in substantially the following
form, and shall include the text of the statement as specified in
subparagraph (C):
(A) A schedule of progress payments shall be preceded by the
heading: "Schedule of Progress Payments."
(B) Each progress payment shall be stated in dollars and cents and
specifically reference the amount of work or services to be
performed and materials and equipment to be supplied.
(C) The section of the contract reserved for the progress payments
shall include the following statement in at least 12-point boldface
type:
"The schedule of progress payments must specifically describe each
phase of work, including the type and amount of work or services
scheduled to be supplied in each phase, along with the amount of each
proposed progress payment. IT IS AGAINST THE LAW FOR A CONTRACTOR TO
COLLECT PAYMENT FOR WORK NOT YET COMPLETED, OR FOR MATERIALS NOT YET
DELIVERED. HOWEVER, A CONTRACTOR MAY REQUIRE A DOWNPAYMENT."
(10) The contract shall address the commencement of work to be
performed in substantially the following form:
(A) A statement that describes what constitutes substantial
commencement of work under the contract.
(B) The heading: "Approximate Start Date."
(C) The approximate date on which work will be commenced.
(11) The estimated
completion date of the work shall be referenced in the contract in
substantially the following form:
(A) The heading: "Approximate Completion Date."
(B) The approximate date of completion.
(12) If applicable, the heading: "List of Documents to be
Incorporated into the Contract," followed by the list of documents
incorporated into the contract.
(13) The heading: "Note about Extra Work and Change Orders,"
followed by the following statement:
"Extra Work and Change Orders become part of the contract once the
order is prepared in writing and signed by the parties prior to the
commencement of work covered by the new change order. The order must
describe the scope of the extra work or change, the cost to be added
or subtracted from the contract, and the effect the order will have
on the schedule of progress payments."
(e) Except as provided in paragraph (8) of subdivision (a) of
Section 7159.5, all of the following notices shall be provided to the
owner as part of the contract form as specified or, if otherwise
authorized under this subdivision, may be provided as an attachment
to the contract:
(1) A notice concerning commercial general liability insurance.
This notice may be provided as an attachment to the contract if the
contract includes the following statement: "A notice concerning
commercial general liability insurance is attached to this contract."
The notice shall include the heading "Commercial General Liability
Insurance (CGL)," followed by whichever of the following statements
is both relevant and correct:
(A) "(The name on the license or "This contractor') does not carry
commercial general liability insurance."
(B) "(The name on the license or "This contractor') carries
commercial general liability insurance written by (the insurance
company). You may call (the insurance company) at __________ to check
the contractor's insurance coverage."
(C) "(The name on the license or "This contractor') is
self-insured."
(2) A notice concerning workers' compensation insurance. This
notice may be provided as an attachment to the contract if the
contract includes the statement: "A notice concerning workers'
compensation insurance is attached to this contract." The notice
shall include the heading "Workers' Compensation Insurance" followed
by whichever of the following statements is correct:
(A) "(The name on the license or "This contractor') has no
employees and is exempt from workers' compensation requirements."
(B) "(The name on the license or "This contractor') carries
workers' compensation insurance for all employees."
(3) A notice that provides the buyer with the following
information about the performance of extra or change-order work:
(A) A statement that the buyer may not require a contractor to
perform extra or change-order work without providing written
authorization prior to the commencement of work covered by the new
change order.
(B) A statement informing the buyer that extra work or a change
order is not enforceable against a buyer unless the change order also
identifies all of the following in writing prior to the commencement
of work covered by the new change order:
(i) The scope of work encompassed by the order.
(ii) The amount to be added or subtracted from the contract.
(iii) The effect the order will make in the progress payments or
the completion date.
(C) A statement informing the buyer that the contractor's failure
to comply with the requirements of this paragraph does not preclude
the recovery of compensation for work performed based upon legal or
equitable remedies designed to prevent unjust enrichment.
(4) A notice with the heading "Mechanics' Lien Warning" written as
follows:
"MECHANICS' LIEN WARNING:
Anyone who helps improve your property, but who is not paid, may
record what is called a mechanics' lien on your property. A mechanics'
lien is a claim, like a mortgage or home equity loan, made against
your property and recorded with the county recorder.
Even if you pay your contractor in full, unpaid subcontractors,
suppliers, and laborers who helped to improve your property may
record mechanics' liens and sue you in court to foreclose the lien.
If a court finds the lien is valid, you could be forced to pay twice
or have a court officer sell your home to pay the lien. Liens can
also affect your credit.
To preserve their right to record a lien, each subcontractor and
material supplier must provide you with a document called a "20-day
Preliminary Notice.' This notice is not a lien. The purpose of the
notice is to let you know that the person who sends you the notice
has the right to record a lien on your property if he or she is not
paid.
BE CAREFUL. The Preliminary Notice can be sent up to 20 days
after the subcontractor starts work or the supplier provides
material. This can be a big problem if you pay your contractor before
you have received the Preliminary Notices.
You will not get Preliminary Notices from your prime contractor or
from laborers who work on your project. The law assumes that you
already know they are improving your property.
PROTECT YOURSELF FROM LIENS. You can protect yourself from liens
by getting a list from your contractor of all the subcontractors and
material suppliers that work on your project. Find out from your
contractor when these subcontractors started work and when these
suppliers delivered goods or materials. Then wait 20 days, paying
attention to the Preliminary Notices you receive.
PAY WITH JOINT CHECKS. One way to protect yourself is to pay with
a joint check. When your contractor tells you it is time to pay for
the work of a subcontractor or supplier who has provided you with a
Preliminary Notice, write a joint check payable to both the
contractor and the subcontractor or material supplier.
For other ways to prevent liens, visit CSLB's Internet Web site at
www.cslb.ca.gov or call CSLB at 800-321-CSLB (2752).
REMEMBER, IF YOU DO NOTHING, YOU RISK HAVING A LIEN PLACED ON YOUR
HOME. This can mean that you may have to pay twice, or face the
forced sale of your home to pay what you owe."
(5) The following notice shall be provided in at least 12-point
typeface:
"Information about the Contractors'
Contractors State License Board (CSLB): CSLB is the state
consumer protection agency that licenses and regulates construction
contractors.
Contact CSLB for information about the licensed contractor you are
considering, including information about disclosable complaints,
disciplinary actions, and civil judgments that are reported to CSLB.
Use only licensed contractors. If you file a complaint against a
licensed contractor within the legal deadline (usually four years),
CSLB has authority to investigate the complaint. If you use an
unlicensed contractor, CSLB may not be able to help you resolve your
complaint. Your only remedy may be in civil court, and you may be
liable for damages arising out of any injuries to the unlicensed
contractor or the unlicensed contractor's employees.
For more information:
Visit CSLB's Internet Web site at www.cslb.ca.gov
Call CSLB at 800-321-CSLB (2752)
Write CSLB at P.O. Box 26000, Sacramento, CA 95826."
(6) (A) The notice set forth in subparagraph (B) and entitled
"Three-Day Right to Cancel," shall be provided to the buyer unless
the contract is:
(i) Negotiated at the contractor's place of business.
(ii) Subject to the "Seven-Day Right to Cancel," as set forth in
paragraph (7).
(iii) Subject to licensure under the Alarm Company Act (Chapter
11.6 (commencing with Section 7590)), provided the alarm company
licensee complies with Sections 1689.5, 1689.6, and 1689.7 of the
Civil Code, as applicable.
(B) "Three-Day Right to Cancel
You, the buyer, have the right to cancel this contract within
three business days. You may cancel by e-mailing, mailing, faxing, or
delivering a written notice to the contractor at the contractor's
place of business by midnight of the third business day after you
received a signed and dated copy of the contract that includes this
notice. Include your name, your address, and the date you received
the signed copy of the contract and this notice.
If you cancel, the contractor must return to you anything you paid
within 10 days of receiving the notice of cancellation. For your
part, you must make available to the contractor at your residence, in
substantially as good condition as you received them, goods
delivered to you under this contract or sale. Or, you may, if you
wish, comply with the contractor's instructions on how to return the
goods at the contractor's expense and risk. If you do make the goods
available to the contractor and the contractor does not pick them up
within 20 days of the date of your notice of cancellation, you may
keep them without any further obligation. If you fail to make the
goods available to the contractor, or if you agree to return the
goods to the contractor and fail to do so, then you remain liable for
performance of all obligations under the contract."
(C) The "Three-Day Right to Cancel" notice required by this
paragraph shall comply with all of the following:
(i) The text of the notice is at least 12-point boldface type.
(ii) The notice is in immediate proximity to a space reserved for
the owner's signature.
(iii) The owner acknowledges receipt of the notice by signing and
dating the notice form in the signature space.
(iv) The notice is written in the same language, e.g., Spanish, as
that principally used in any oral sales presentation.
(v) The notice may be attached to the contract if the contract
includes, in at least 12-point boldface type, a checkbox with the
following statement: "The law requires that the contractor give you a
notice explaining your right to cancel. Initial the checkbox if the
contractor has given you a "Notice of the Three-Day Right to Cancel.'
"
(vi) The notice shall be accompanied by a completed form in
duplicate, captioned "Notice of Cancellation," which also shall be
attached to the agreement or offer to purchase and be easily
detachable, and which shall contain the following statement written
in the same language, e.g., Spanish, as used in the contract:
""Notice of Cancellation''
/enter date of transaction/
______________________________
(Date)
"You may cancel this transaction, without any penalty or
obligation, within three business days from the above date.
If you cancel, any property traded in, any payments made by you
under the contract or sale, and any negotiable instrument executed by
you will be returned within 10 days following receipt by the seller
of your cancellation notice, and any security interest arising out of
the transaction will be canceled.
If you cancel, you must make available to the seller at your
residence, in substantially as good condition as when received, any
goods delivered to you under this contract or sale, or you may, if
you wish, comply with the instructions of the seller regarding the
return shipment of the goods at the seller's expense and risk.
If you do make the goods available to the seller and the seller
does not pick them up within 20 days of the date of your notice of
cancellation, you may retain or dispose of the goods without any
further obligation. If you fail to make the goods available to the
seller, or if you agree to return the goods to the seller and fail to
do so, then you remain liable for performance of all obligations
under the contract."
To cancel this transaction, mail or deliver a
signed and dated copy of this cancellation
notice, or any other written notice, or
send a telegram
to_____________________________________________,
/name of seller/
at______________________________________________
/address of seller's place of
business/
not later than midnight of_____________________.
(Date)
I hereby cancel this transaction. _____________
(Date)
____________________________________
(Buyer's signature)
(7) (A) The following notice entitled "Seven-Day Right to Cancel"
shall be provided to the buyer for any contract that is written for
the repair or restoration of residential premises damaged by any
sudden or catastrophic event for which a state of emergency has been
declared by the President of the United States or the Governor, or
for which a local emergency has been declared by the executive
officer or governing body of any city, county, or city and county:
"Seven-Day Right to Cancel
You, the buyer, have the right to cancel this contract within
seven business days. You may cancel by e-mailing, mailing, faxing, or
delivering a written notice to the contractor at the contractor's
place of business by midnight of the seventh business day after you
received a signed and dated copy of the contract that includes this
notice. Include your name, your address, and the date you received
the signed copy of the contract and this notice.
If you cancel, the contractor must return to you anything you paid
within 10 days of receiving the notice of cancellation. For your
part, you must make available to the contractor at your residence, in
substantially as good condition as you received them, goods
delivered to you under this contract or sale. Or, you may, if you
wish, comply with the contractor's instructions on how to return the
goods at the contractor's expense and risk. If you do make the goods
available to the contractor and the contractor does not pick them up
within 20 days of the date of your notice of cancellation, you may
keep them without any further obligation. If you fail to make the
goods available to the contractor, or if you agree to return the
goods to the contractor and fail to do so, then you remain liable for
performance of all obligations under the contract."
(B) The "Seven-Day Right to Cancel" notice required by this
subdivision shall comply with all of the following:
(i) The text of the notice is at least 12-point boldface type.
(ii) The notice is in immediate proximity to a space reserved for
the owner's signature.
(iii) The owner acknowledges receipt of the notice by signing and
dating the notice form in the signature space.
(iv) The notice is written in the same language, e.g., Spanish, as
that principally used in any oral sales presentation.
(v) The notice may be attached to the contract if the contract
includes, in at least 12-point boldface type, a checkbox with the
following statement: "The law requires that the contractor give you a
notice explaining your right to cancel. Initial the checkbox if the
contractor has given you a "Notice of the Seven-Day Right to Cancel.'
"
(vi) The notice shall be accompanied by a completed form in
duplicate, captioned "Notice of Cancellation," which shall also be
attached to the agreement or offer to purchase and be easily
detachable, and which shall contain the following statement written
in the same language, e.g., Spanish, as used in the contract:
""Notice of Cancellation''
/enter date of transaction/
______________________________
(Date)
"You may cancel this transaction, without any penalty or
obligation, within seven business days from the above date.
If you cancel, any property traded in, any payments made by you
under the contract or sale, and any negotiable instrument executed by
you will be returned within 10 days following receipt by the seller
of your cancellation notice, and any security interest arising out of
the transaction will be canceled.
If you cancel, you must make available to the seller at your
residence, in substantially as good condition as when received, any
goods delivered to you under this contract or sale, or you may, if
you wish, comply with the instructions of the seller regarding the
return shipment of the goods at the seller's expense and risk.
If you do make the goods available to the seller and the seller
does not pick them up within 20 days of the date of your notice of
cancellation, you may retain or dispose of the goods without any
further obligation. If you fail to make the goods available to the
seller, or if you agree to return the goods to the seller and fail to
do so, then you remain liable for performance of all obligations
under the contract."
To cancel this transaction, mail or deliver a
signed and dated copy of this cancellation
notice, or any other written notice, or send a
telegram
to_____________________________________________,
/name of seller/
at______________________________________________
/address of seller's place of
business/
not later than midnight of_____________________.
(Date)
I hereby cancel this transaction. _____________
(Date)
____________________________________
(Buyer's signature)
SEC. 87. Section 8516 of the Business
and Professions Code is amended to read:
8516. (a) This section, and Section 8519, apply only to wood
destroying pests or organisms.
(b) No registered company or licensee shall commence work on a
contract, or sign, issue, or deliver any documents expressing an
opinion or statement relating to the absence or presence of wood
destroying pests or organisms until an inspection has been made by a
licensed Branch 3 field representative or operator. The address of
each property inspected or upon which work is completed shall be
reported on a form prescribed by the board and shall be filed with
the board no later than 10 business days after the commencement of an
inspection or upon completed work.
Every property inspected pursuant to this subdivision or Section
8518 shall be assessed a filing fee pursuant to Section 8674.
Failure of a registered company to report and file with the board
the address of any property inspected or work completed pursuant to
Section 8518 or this section is grounds for disciplinary action and
shall subject the registered company to a fine of not more than two
thousand five hundred dollars ($2,500).
A written inspection report conforming to this section and a form
approved by the board shall be prepared and delivered to the person
requesting the inspection or to the person's designated agent within
10 business days of the inspection, except that an inspection report
prepared for use by an attorney for litigation purposes is not
required to be reported to the board. The report shall be delivered
before work is commenced on any property. The registered company
shall retain for three years all original inspection reports, field
notes, and activity forms.
Reports shall be made available for inspection and reproduction to
the executive officer of the board or his or her duly authorized
representative during business hours. Original inspection reports or
copies thereof shall be submitted to the board upon request within
two business days. The following shall be set forth in the report:
(1) The date of the inspection and the name of the licensed field
representative or operator making the inspection.
(2) The name and address of the person or firm ordering the
report.
(3) The name and address of any person who is a party in interest.
(4) The address or location of the property.
(5) A general description of the building or premises inspected.
(6) A foundation diagram or sketch of the structure or structures
or portions of the structure or structures inspected, indicating
thereon the approximate location of any infested or infected areas
evident, and the parts of the structure where conditions that would
ordinarily subject those parts to attack by wood destroying pests or
organisms exist.
(7) Information regarding the substructure, foundation walls and
footings, porches, patios and steps, air vents, abutments, attic
spaces, roof framing that includes the eaves, rafters, fascias,
exposed timbers, exposed sheathing, ceiling joists, and attic walls,
or other parts subject to attack by wood destroying pests or
organisms. Conditions usually deemed likely to lead to infestation or
infection, such as earth-wood contacts, excessive cellulose debris,
faulty grade levels, excessive moisture conditions, evidence of roof
leaks, and insufficient ventilation are to be reported.
(8) One of the following statements, as appropriate, printed in
bold type:
(A) The exterior surface of the roof was not inspected. If you
want the water tightness of the roof determined, you should contact a
roofing contractor who is licensed by the Contractors'
Contractors State License Board.
(B) The exterior surface of the roof was inspected to determine
whether or not wood destroying pests or organisms are present.
(9) Indication or description of any areas that are inaccessible
or not inspected with recommendation for further inspection if
practicable. If, after the report has been made in compliance with
this section, authority is given later to open inaccessible areas, a
supplemental report on conditions in these areas shall be made.
(10) Recommendations for corrective measures.
(11) Information regarding the pesticide or pesticides to be used
for their control as set forth in subdivision (a) of Section 8538.
(12) The inspection report shall clearly disclose that if
requested by the person ordering the original report, a reinspection
of the structure will be performed if an estimate or bid for making
repairs was given with the original inspection report, or thereafter.
(13) The inspection report shall contain the following statement,
printed in boldface type:
"NOTICE: Reports on this structure prepared by various registered
companies should list the same findings (i.e. termite infestations,
termite damage, fungus damage, etc.). However, recommendations to
correct these findings may vary from company to company. You have a
right to seek a second opinion from another company."
An estimate or bid for repairs shall be given separately
allocating the costs to perform each and every recommendation for
corrective measures as specified in subdivision (c) with the original
inspection report if the person who ordered the original inspection
report so requests, and if the registered company is regularly in the
business of performing corrective measures.
If no estimate or bid was given with the original inspection
report, or thereafter, then the registered company shall not be
required to perform a reinspection.
A reinspection shall be an inspection of those items previously
listed on an original report to determine if the recommendations have
been completed. Each reinspection shall be reported on an original
inspection report form and shall be labeled "Reinspection" in capital
letters by rubber stamp or typewritten. Each reinspection shall also
identify the original report by date.
After four months from an original inspection, all inspections
shall be original inspections and not reinspections.
Any reinspection shall be performed for not more than the price of
the registered company's original inspection price and shall be
completed within 10 working days after a reinspection has been
ordered.
(c) At the time a report is ordered, the registered company or
licensee shall inform the person or entity ordering the report, that
a separated report is available pursuant to this subdivision. If a
separated report is requested at the time the inspection report is
ordered, the registered company or licensee shall separately identify
on the report each recommendation for corrective measures as
follows:
(1) The infestation or infection that is evident.
(2) The conditions that are present that are deemed likely to lead
to infestation or infection.
If a registered company or licensee fails to inform as required by
this subdivision and a dispute arises, or if any other dispute
arises as to whether this subdivision has been complied with, a
separated report shall be provided within 24 hours of the request
but, in no event, later than the next business day, and at no
additional cost.
(d) When a corrective condition is identified, either as paragraph
(1) or (2) of subdivision (c), and the responsible party, as
negotiated between the buyer and the seller, chooses not to correct
those conditions, the registered company or licensee shall not be
liable for damages resulting from a failure to correct those
conditions or subject to any disciplinary action by the board.
Nothing in this subdivision, however, shall relieve a registered
company or a licensee of any liability resulting from negligence,
fraud, dishonest dealing, other violations pursuant to this chapter,
or contractual obligations between the registered company or licensee
and the responsible parties.
(e) The inspection report form prescribed by the board shall
separately identify the infestation or infection that is evident and
the conditions that are present that are deemed likely to lead to
infestation or infection. If a separated form is requested, the form
shall explain the infestation or infection that is evident and the
conditions that are present that are deemed likely to lead to
infestation or infection and the difference between those conditions.
In no event, however, shall conditions deemed likely to lead to
infestation or infection be characterized as actual "defects" or as
actual "active" infestations or infections or in need of correction
as a precondition to issuing a certification pursuant to Section
8519.
(f) The report and any contract entered into shall also state
specifically when any guarantee for the work is made, and if so, the
specific terms of the guarantee and the period of time for which the
guarantee shall be in effect.
(g) Control service is defined as the regular reinspection of a
property after a report has been made in compliance with this section
and any corrections as have been agreed upon have been completed.
Under a control service agreement a registered company shall refer to
the original report and contract in a manner as to identify them
clearly, and the report shall be assumed to be a true report of
conditions as originally issued, except it may be modified after a
control service inspection. A registered company is not required to
issue a report as outlined in paragraphs (1) to (11), inclusive, of
subdivision (b) after each control service inspection. If after
control service inspection, no modification of the original report is
made in writing, then it will be assumed
that conditions are as originally reported. A control
service contract shall state specifically the particular wood
destroying pests or organisms and the portions of the buildings or
structures covered by the contract.
(h) A registered company or licensee may enter into and maintain a
control service agreement provided the following requirements are
met:
(1) The control service agreement shall be in writing, signed by
both parties, and shall specifically include the following:
(A) The wood destroying pests and organisms that could infest and
infect the structure.
(B) The wood destroying pests and organisms covered by the control
service agreement. Any wood destroying pest or organism that is not
covered must be specifically listed.
(C) The type and manner of treatment to be used to correct the
infestations or infections.
(D) The structures or buildings, or portions thereof, covered by
the agreement, including a statement specifying whether the coverage
for purposes of periodic inspections is limited or full. Any
exclusions from those described in the original report must be
specifically listed.
(E) A reference to the original inspection report and agreement.
(F) The frequency of the inspections to be provided, the fee to be
charged for each renewal, and the duration of the agreement.
(G) Whether the fee includes structural repairs.
(H) If the services provided are guaranteed, and, if so, the terms
of the guarantee.
(I) A statement that all corrections of infestations or infections
covered by the control service agreement shall be completed within
six months of discovery, unless otherwise agreed to in writing by
both parties.
(2) Inspections made pursuant to a control service agreement shall
be conducted by a Branch 3 licensee. Section 8506.1 does not modify
this provision.
(3) A full inspection of the property covered by the control
service agreement shall be conducted and a report filed pursuant to
subdivision (b) at least once every three years from the date that
the agreement was entered into, unless the consumer cancels the
contract within three years from the date the agreement was entered
into.
(4) A written report shall be required for the correction of any
infestation or infection unless all of the following conditions are
met:
(A) The infestation or infection has been previously reported.
(B) The infestation or infection is covered by the control service
agreement.
(C) There is no additional charge for correcting the infestation
or infection.
(D) Correction of the infestation or infection takes place within
45 days of its discovery.
(E) Correction of the infestation or infection does not include
fumigation.
(5) All notice requirements pursuant to Section 8538 shall apply
to all pesticide treatments conducted under control service
agreements.
(6) For purposes of this section, "control service agreement"
means any agreement, including extended warranties, to have a
licensee conduct over a period of time regular inspections and other
activities related to the control or eradication of wood destroying
pests and organisms.
(i) All work recommended by a registered company, where an
estimate or bid for making repairs was given with the original
inspection report, or thereafter, shall be recorded on this report or
a separate work agreement and shall specify a price for each
recommendation. This information shall be provided to the person
requesting the inspection, and shall be retained by the registered
company with the inspection report copy for three years.
SEC. 88. Section 16000 of the Business
and Professions Code is amended to read:
16000. (a) The legislative body of an incorporated city may, in
the exercise of its police power, and for the purpose of regulation,
as herein provided, and not otherwise, license any kind of business
not prohibited by law transacted and carried on within the limits of
its jurisdiction, including all shows, exhibitions and lawful games,
and may fix the rates of the license fee and provide for its
collection by suit or otherwise. Any legislative body, including the
legislative body of a charter city, that fixes the rate of license
fees pursuant to this subdivision upon a business operating both
within and outside the legislative body's taxing jurisdiction, shall
levy the license fee so that the measure of the fee fairly reflects
that proportion of the activity actually carried on within the taxing
jurisdiction.
(b) No license fee levied pursuant to subdivision (a) that is
measured by the licensee's income or gross receipts, whether levied
by a charter or general law city, shall apply to any nonprofit
organization that is exempted from taxes by Chapter 4 (commencing
with Section 23701) of Part 11 of Division 2 of the Revenue and
Taxation Code or Subchapter F (commencing with Section 501) of
Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, or the
successor of either, or to any minister, clergyman, Christian Science
practitioner, rabbi, or priest of any religious organization that
has been granted an exemption from federal income tax by the United
States Commissioner of Internal Revenue as an organization described
in Section 501(c)(3) of the Internal Revenue Code or a successor to
that section.
(c) Before a city, including a charter city, issues a business
license to a person to conduct business as a contractor, as defined
in Section 7026, the city shall verify that the person is licensed by
the Contractors' Contractors State
License Board.
SEC. 89. Section 16100 of the Business
and Professions Code is amended to read:
16100. (a) The board of supervisors may in the exercise of its
police powers, and for the purpose of regulation, as herein provided,
and not otherwise, license any kind of business not prohibited by
law, transacted and carried on within the limits of its jurisdiction,
including all shows, exhibitions, and lawful games, and may fix the
rate of the license fee and provide for its collection by suit or
otherwise.
(b) No license fee levied pursuant to subdivision (a) that is
measured by the licensee's income or gross receipts, whether levied
by a charter or general law county, shall apply to any nonprofit
organization that is exempted from taxes by Chapter 4 (commencing
with Section 23701) of Part 11 of Division 2 of the Revenue and
Taxation Code or Subchapter F (commencing with Section 501) of
Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, or the
successor of either, or to any minister, clergyman, Christian Science
practitioner, rabbi, or priest of any religious organization that
has been granted an exemption from federal income tax by the United
States Commissioner of Internal Revenue as an organization described
in Section 501(c)(3) of the Internal Revenue Code or a successor to
that section.
(c) Before a county issues a business license to a person to
conduct business as a contractor, as defined by Section 7026, the
county shall verify that the person is licensed by the
Contractors' Contractors State License Board.
SEC. 90. Section 19164 of the Business
and Professions Code is amended to read:
19164. The bureau may, by regulation, establish insulation
material standards governing the quality of all insulation material
sold or installed within this state, including those properties that
affect the safety and thermal performance of insulation material
during application and in the use intended. The standards shall
specify the initial performance of the insulation material and the
performance expected during the design life of the insulation
material. Until the bureau has adopted these requlations
regulations , the regulations of the Energy
Resources Conservation and Development Commission in effect on the
effective date of this section relating to those standards shall
remain in full force and effect. However, wherever those regulations
specify that the commission shall perform an act, the bureau instead
shall perform the act.
Prior to establishing the standards and procedures required by
this chapter, the bureau shall conduct at least two public hearings,
and shall invite the Energy Resources Conservation and Development
Commission, the State Fire Marshal, manufacturers, distributors, and
licensed installers of insulation materials, and appropriate members
of the public to participate in the hearings. Immediately upon
adoption of the standards and procedures, the bureau shall provide a
copy of the standards to the Energy Resources Conservation and
Development Commission, and the Contractors'
Contractors State License Board. Within 30 days after receipt
of the bureau's standards, the Contractors'
Contractors State License Board shall notify all state licensed
contractors who install insulation of the standards.
Insulation standards adopted by the bureau, pursuant to this
section, and by the Energy Resources Conservation and Development
Commission, pursuant to Section 25402 of the Public Resources Code,
which are building standards as defined in Section 25488.5 shall be
submitted to the State Building Standards Commission for approval
pursuant to, and are governed by, the State Building Standards Law,
Part 2.5 (commencing with Section 18901) of Division 13 of the Health
and Safety Code. The building standards adopted by the bureau and
published in the State Building Standards Code shall comply with, and
be enforced as provided in, this section.
SEC. 91. Section 3084 of the Civil Code
, as amended by Section 1 of Chapter 109 of the
Statutes of 2009, is amended to read:
3084. (a) "Claim of lien" or "mechanic's lien" means a written
statement, signed and verified by the claimant or by the claimant's
agent, containing all of the following:
(1) A statement of the claimant's demand after deducting all just
credits and offsets.
(2) The name of the owner or reputed owner, if known.
(3) A general statement of the kind of labor, services, equipment,
or materials furnished by the claimant.
(4) The name of the person by whom the claimant was employed or to
whom the claimant furnished the labor, services, equipment, or
materials.
(5) A description of the site sufficient for identification.
(6) A proof of service affidavit completed and signed by the
person serving the Notice of Mechanic's Lien pursuant to subdivision
(c). A "proof of service affidavit" is an affidavit of the person
making the service, showing the date, place, and manner of service
and facts showing that the service was made in accordance with this
section. The affidavit shall show the name and address of the person
or persons upon whom a copy of the mechanic's lien and the Notice of
Mechanic's Lien was served, and, if appropriate, the title or
capacity in which he or she was served.
(7) The following statement, printed in at least 10-point boldface
type. The letters of the last sentence shall be printed in uppercase
type, excepting the Internet Web site address of the Contractors'
State License Board, which shall be printed in lowercase type:
NOTICE OF MECHANIC'S LIEN
ATTENTION!
Upon the recording of the enclosed MECHANIC'S LIEN with the county
recorder's office of the county where the property is located, your
property is subject to the filing of a legal action seeking a
court-ordered foreclosure sale of the real property on which the lien
has been recorded. That legal action must be filed with the court no
later than 90 days after the date the mechanic's lien is recorded.
The party identified in the mechanic's lien may have provided
labor or materials for improvements to your property and may not have
been paid for these items. You are receiving this notice because it
is a required step in filing a mechanic's lien foreclosure action
against your property. The foreclosure action will seek a sale of
your property in order to pay for unpaid labor, materials, or
improvements provided to your property. This may affect your ability
to borrow against, refinance, or sell the property until the mechanic'
s lien is released.
BECAUSE THE LIEN AFFECTS YOUR PROPERTY, YOU MAY WISH TO SPEAK WITH
YOUR CONTRACTOR IMMEDIATELY, OR CONTACT AN ATTORNEY, OR FOR MORE
INFORMATION ON MECHANIC'S LIENS GO TO THE CONTRACTORS'
CONTRACTORS STATE LICENSE BOARD INTERNET
WEB SITE AT www.cslb.ca.gov.
(b) A mechanic's lien or claim of lien in otherwise proper form,
verified and containing the information required by this section
shall be accepted by the recorder for recording and shall be deemed
duly recorded without acknowledgment.
(c) (1) The mechanic's lien and the Notice of Mechanic's Lien
described in this section shall be served on the owner or reputed
owner. Service shall be made as follows:
(A) For an owner or reputed owner to be notified who resides in or
outside this state, by registered mail, certified mail, or
first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to the owner or reputed owner at the owner's or
reputed owner's residence or place of business address or at the
address shown by the building permit on file with the authority
issuing a building permit for the work, or as otherwise provided in
subdivision (j) of Section 3097.
(B) If the owner or reputed owner cannot be served by this method,
then the notice may be given by registered mail, certified mail, or
first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to the construction lender or to the original
contractor.
(2) Service by registered mail, certified mail, or first-class
mail, evidenced by a certificate of mailing, postage prepaid, is
complete at the time of the deposit of that first-class certified or
registered mail.
(d) Failure to serve the mechanic's lien, including the Notice of
Mechanic's Lien, as prescribed by this section, shall cause the
mechanic's lien to be unenforceable as a matter of law.
SEC. 92. Section 116.220 of the Code of
Civil Procedure is amended to read:
116.220. (a) The small claims court has jurisdiction in the
following actions:
(1) Except as provided in subdivisions (c), (e), and (f), for
recovery of money, if the amount of the demand does not exceed five
thousand dollars ($5,000).
(2) Except as provided in subdivisions (c), (e), and (f), to
enforce payment of delinquent unsecured personal property taxes in an
amount not to exceed five thousand dollars ($5,000), if the legality
of the tax is not contested by the defendant.
(3) To issue the writ of possession authorized by Sections 1861.5
and 1861.10 of the Civil Code if the amount of the demand does not
exceed five thousand dollars ($5,000).
(4) To confirm, correct, or vacate a fee arbitration award not
exceeding five thousand dollars ($5,000) between an attorney and
client that is binding or has become binding, or to conduct a hearing
de novo between an attorney and client after nonbinding arbitration
of a fee dispute involving no more than five thousand dollars
($5,000) in controversy, pursuant to Article 13 (commencing with
Section 6200) of Chapter 4 of Division 3 of the Business and
Professions Code.
(5) For an injunction or other equitable relief only when a
statute expressly authorizes a small claims court to award that
relief.
(b) In any action seeking relief authorized by paragraphs (1) to
(4), inclusive, of subdivision (a), the court may grant equitable
relief in the form of rescission, restitution, reformation, and
specific performance, in lieu of, or in addition to, money damages.
The court may issue a conditional judgment. The court shall retain
jurisdiction until full payment and performance of any judgment or
order.
(c) Notwithstanding subdivision (a), the small claims court has
jurisdiction over a defendant guarantor as follows:
(1) For any action brought by a natural person against the
Registrar of the Contractors' Contractors
State License Board as the defendant guarantor, the small
claims jurisdictional limit stated in Section 116.221 shall apply.
(2) For any action against a defendant guarantor that does not
charge a fee for its guarantor or surety services, if the amount of
the demand does not exceed two thousand five hundred dollars
($2,500).
(3) For any action brought by a natural person against a defendant
guarantor that charges a fee for its guarantor or surety services,
if the amount of the demand does not exceed six thousand five hundred
dollars ($6,500).
(4) For any action brought by an entity other than a natural
person against a defendant guarantor that charges a fee for its
guarantor or surety services or against the Registrar of the
Contractors' Contractors State License Board as
the defendant guarantor, if the amount of the demand does not exceed
four thousand dollars ($4,000).
(d) In any case in which the lack of jurisdiction is due solely to
an excess in the amount of the demand, the excess may be waived, but
any waiver is not operative until judgment.
(e) Notwithstanding subdivision (a), in any action filed by a
plaintiff incarcerated in a Department of Corrections and
Rehabilitation facility, the small claims court has jurisdiction over
a defendant only if the plaintiff has alleged in the complaint that
he or she has exhausted his or her administrative remedies against
that department, including compliance with Sections 905.2 and 905.4
of the Government Code. The final administrative adjudication or
determination of the plaintiff's administrative claim by the
department may be attached to the complaint at the time of filing in
lieu of that allegation.
(f) In any action governed by subdivision (e), if the plaintiff
fails to provide proof of compliance with the requirements of
subdivision (e) at the time of trial, the judicial officer shall, at
his or her discretion, either dismiss the action or continue the
action to give the plaintiff an opportunity to provide that proof.
(g) For purposes of this section, "department" includes an
employee of a department against whom a claim has been filed under
this chapter arising out of his or her duties as an employee of that
department.
SEC. 93. Section 17250.25 of the
Education Code is amended to read:
17250.25. Design-build projects shall progress as follows:
(a) (1) The school district governing board shall prepare a
request for proposal setting forth the scope of the project that may
include, but is not limited to, the size, type and desired design
character of the buildings and site, performance specifications
covering the quality of materials, equipment, and workmanship,
preliminary plans or building layouts, or any other information
deemed necessary to describe adequately the school district's needs.
The performance specifications and any plans shall be prepared by a
design professional duly licensed or registered in this state.
(2) Each request for proposal shall do all of the following:
(A) Identify the basic scope and needs of the project or contract,
the expected cost range, and other information deemed necessary by
the school district to inform interested parties of the contracting
opportunity.
(B) Invite interested parties to submit competitive sealed
proposals in the manner prescribed by the school district.
(C) Include a section identifying and describing the following:
(i) All significant factors and subfactors that the school
district reasonably expects to consider in evaluating proposals,
including cost or price and all nonprice related factors and
subfactors.
(ii) The methodology and rating or weighting scheme that will be
used by the school district governing board in evaluating competitive
proposals and specifically whether proposals will be rated according
to numeric or qualitative values.
(iii) The relative importance or weight assigned to each of the
factors identified in the request for proposal.
(iv) As an alternative to clause (iii), the governing board of a
school district shall specifically disclose whether all evaluation
factors other than cost or price, when combined, are any of the
following:
(I) Significantly more important than cost or price.
(II) Approximately equal in importance to cost or price.
(III) Significantly less important than cost or price.
(v) If the school district governing board wishes to reserve the
right to hold discussions or negotiations with responsive bidders, it
shall so specify in the request for proposal and shall publish
separately or incorporate into the request for proposal applicable
rules and procedures to be observed by the school district to ensure
that any discussions or negotiations are conducted in a fair and
impartial manner.
(3) Notwithstanding Section 4-315 of Title 24 of the California
Code of Regulations, an architect or structural engineer who is party
to a design-build entity may perform the services set forth in
Section 17302.
(b) (1) The school district shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of the Department of Industrial Relations.
In preparing the questionnaire, the director shall consult with the
construction industry, including representatives of the building
trades, surety industry, school districts, and other affected
parties. This questionnaire shall require information including, but
not limited to, all of the following:
(A) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members who will participate as
subcontractors in the design-build contract, including, but not
limited to, electrical and mechanical subcontractors.
(B) Evidence that the members of the design-build entity have
completed, or demonstrated, the experience, competency, capability,
and capacity to complete projects of similar size, scope or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project.
(C) The licenses, registration, and credentials required to design
and construct the project, including information on the revocation
or suspension of any license, credential, or registration.
(D) Evidence that establishes that the design-build entity has the
capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance, as well as a
financial statement that assures the school district that the
design-build entity has the capacity to complete the project.
(E) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973 (Part 1 (commencing with
Section 6300) of Division 5 of the Labor Code) or the Federal
Occupational Safety and Health Act of 1970 (P.L. 91-596), settled
against any member of the design-build entity, and information
concerning a contractor member's workers' compensation experience
history and worker safety program.
(F) Information concerning any debarment, disqualification, or
removal from a federal, state or local government public works
project.
(G) Any instance where an entity, its owners, officers, or
managing employees, submitted a bid on a public works project and
were found by an awarding body not to be a responsible bidder.
(H) Any instance where the entity, its owner, officers, or
managing employees defaulted on a construction contract.
(I) Any prior violations of the Contractors'
Contractors State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
excluding alleged violations of federal or state law including the
payment of wages, benefits, apprenticeship requirements, or personal
income tax withholding, or of Federal Insurance Contribution Act
(FICA) withholding requirements, settled against any member of the
design-build entity.
(J) Information concerning the bankruptcy or receivership of any
member of the entity, including information concerning any work
completed by a surety.
(K) 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 during the five-year period
preceding submission of the bid pursuant to this section, in which
the claim, settlement, or judgment exceeds fifty thousand dollars
($50,000). Information shall also be provided concerning any work
completed by a surety during this period.
(L) In the case of a partnership or other association that is not
a legal entity, a copy of the agreement creating the partnership or
association.
(2) The information required pursuant to this subdivision shall be
verified under oath by the design-build 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 I of the Government Code) shall not be open to
public inspection.
(c) The school district shall establish a procedure for final
selection of the design-build entity. Selection shall be based on
either of the following criteria:
(1) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Award shall be made on the
basis of the lowest responsible bid.
(2) Notwithstanding any other provision of this code or of Section
20110 of the Public Contract Code, a school district may use a
design-build competition based upon performance and other criteria
set forth by the governing board in the solicitation of proposals.
Criteria used in this evaluation of proposals may include, but need
not be limited to, the proposed design approach, life cycle costs,
project features, and project functions. However, competitive
proposals shall be evaluated by using the criteria and source
selection procedures specifically identified in the request for
proposal. Once the evaluation is complete, all responsive bidders
shall be ranked from the most advantageous to least advantageous to
the school district.
(A) Any architectural or engineering firm or individual retained
by the governing body of the school district to assist in the
development criteria or preparation of the request for proposal shall
not be eligible to participate in the competition with the
design-build entity.
(B) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing by the school
district, to be the best value to the school district.
(C) Proposals shall be evaluated and scored solely on the basis of
the factors and source selection procedures identified in the request
for proposal. However, the following minimum factors shall
collectively represent at least 50 percent of the total weight or
consideration given to all criteria factors: price, technical
expertise, life cycle costs over 15 years or more, skilled labor
force availability, and acceptable safety record.
(D) The school district governing board shall issue a written
decision supporting its contract award and stating in detail the
basis of the award. The decision and the contract file must be
sufficient to satisfy an external audit.
(E) Notwithstanding any provision of the Public Contract Code,
upon issuance of a contract award, the school district governing
board shall publicly announce its awards identifying the contractor
to whom the award is made, the winning contractor's price proposal
and its overall combined rating on the request for proposal
evaluation factors. The notice of award shall also include the agency'
s ranking in relation to all other responsive bidders and their
respective price proposals and a summary of the school district's
rationale for the contract award.
(F) For the purposes of this chapter, "skilled labor force
availability" means that an agreement exists with a registered
apprenticeship program, approved by the California Apprenticeship
Council, which has graduated apprentices in the preceding five years.
This graduation requirement shall not apply to programs providing
apprenticeship training for any craft that has not been deemed by the
Department of Labor and the Department of Industrial Relations to be
an apprenticable craft in the two years prior to enactment of this
act.
(G) For the purposes of this chapter, a bidder's "safety record"
shall be deemed "acceptable" if its experience modification rate for
the most recent three-year period is an average of 1.00 or less, and
its average total recordable injury or illness rate and average lost
work rate for the most recent three-year period does not exceed the
applicable statistical standards for its business category, or if the
bidder is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
SEC. 94. Section 14137 of the Government
Code is amended to read:
14137. (a) The department, in consultation with the Office of
Small Business Advocate, may establish a Small and Emerging
Contractor Technical Assistance Program. The purpose of the program
is to provide training and technical assistance to small contractors
to improve their ability to secure surety bond guarantees, offered by
the federal Small Business Administration. Surety bond guarantees
can assist small contractors in obtaining surety bonds that are
necessary to qualify for public works construction projects awarded
by state and local governments.
(b) For purposes of this article:
(1) "Program" means the Small and Emerging Contractor Technical
Assistance Program.
(2) "Small contractor" means a small business, as defined in
paragraph (1) of subdivision (d) of Section 14837 of the Government
Code, that is a contractor doing business in this state and is
licensed by the Contractors' Contractors
State License Board pursuant to Article 5 (commencing with
Section 7065) of Chapter 9 of Division 3 of the Business and
Professions Code.
SEC. 95. Section 14661 of the
Government Code is amended to read:
14661. (a) For the purposes of this section, the definitions in
subdivision (a) of Section 13332.19 shall apply.
(b) Notwithstanding any provision of the Public Contract Code or
any other provision of law, when the Legislature authorizes the use
of the design-build construction procurement process for a specific
project, the Director of General Services may contract and procure
state office facilities and other buildings, structures, and related
facilities pursuant to this section.
(c) Prior to contracting with a design-build entity for the
procurement of state office facilities and other state buildings and
structures, the director shall:
(1) Prepare a program setting forth the performance criteria for
the design-build project. The performance criteria shall be prepared
by a design professional duly licensed and registered in the State of
California.
(2) (A) Establish a competitive prequalification and selection
process for design-build entities, including any subcontractors
listed at the time of bid, that clearly specifies the
prequalification criteria, and states the manner in which the winning
design-build entity will be selected.
(B) Prequalification shall be limited to consideration of all of
the following criteria:
(i) Possession of all required licenses, registration, and
credentials in good standing that are required to design and
construct the project.
(ii) Submission of evidence that establishes that the design-build
entity members have completed, or demonstrated the capability to
complete, projects of similar size, scope, or complexity, and that
proposed key personnel have sufficient experience and training to
competently manage and complete the design and construction of the
project.
(iii) Submission of a proposed project management plan that
establishes that the design-build entity has the experience,
competence, and capacity needed to effectively complete the project.
(iv) Submission of evidence that establishes that the design-build
entity has the capacity to obtain all required payment and
performance bonding, liability insurance, and errors and omissions
insurance, as well as a financial statement that assures the
department that the design-build entity has the capacity to complete
the project.
(v) Provision of a declaration certifying that applying members of
the design-build entity have not had a surety company finish work on
any project within the last five years.
(vi) Provision of information and a declaration providing detail
concerning all of the following:
(I) Any construction or design claim or litigation totaling more
than five hundred thousand dollars ($500,000) or 5 percent of the
annual value of work performed, whichever is less, settled against
any member of the design-build entity over the last five years.
(II) Serious violations of the Occupational Safety and Health Act,
as provided in Part 1 (commencing with Section 6300) of Division 5
of the Labor Code, settled against any member of the design-build
entity.
(III) Violations of federal or state law, including, but not
limited to, those laws governing the payment of wages, benefits, or
personal income tax withholding, or of Federal Insurance
Contributions Act (FICA) withholding requirements, state disability
insurance withholding, or unemployment insurance payment
requirements, settled against any member of the design-build entity
over the last five years. For the purposes of this subclause, only
violations by a design-build 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 his or her
subcontractor's violations or failed to comply with the conditions
set forth in subdivision (b) of Section 1775 of the Labor Code.
(IV) Information required by Section 10162 of the Public Contract
Code.
(V) Violations of the Contractors'
Contractors State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
excluding alleged violations or complaints.
(VI) Any conviction of any member of the design-build entity of
submitting a false or fraudulent claim to a public agency over the
last five years.
(vii) Provision of a declaration that the design-build entity will
comply with all other provisions of law applicable to the project,
including, but not limited to, the requirements of Chapter 1
(commencing with Section 1720) of Part 7 of Division 2 of the Labor
Code.
(C) The director, when requested by the design-build entity, shall
hold in confidence any information required by clauses (i) to (vi),
inclusive.
(D) Any declaration required under subparagraph (B) shall state
that reasonable diligence has been used in its preparation and that
it is true and complete to the best of the signer's knowledge. A
person who certifies as true any material matter that he or she knows
to be false is guilty of a misdemeanor and shall be punished by not
more than one year in a county jail, by a fine of not more than five
thousand dollars ($5,000), or by both the fine and imprisonment.
(3) (A) Determine, as he or she deems in the best interests of the
state, which of the following methods listed in subparagraph (B)
will be used as the process for the winning design-build entity. The
director shall provide a notification to the State Public Works
Board, regarding the method selected for determining the winning
design-build entity, at least 30 days prior to publicizing the
design-build solicitation package.
(B) The director shall make his or her determination by choosing
one of the following methods:
(i) A design-build competition based upon performance, price, and
other criteria set forth by the department in the design-build
solicitation package. The department shall establish technical
criteria and methodology, including price, to evaluate proposals and
shall describe the criteria and methodology in the design-build
solicitation package. Award shall be made to the design-build entity
whose proposal is judged as providing the best value in meeting the
interest of the department and meeting the objectives of the project.
A project with an approved budget of ten million dollars
($10,000,000) or more may be awarded pursuant to this clause.
(ii) A design-build competition based upon performance and other
criteria set forth by the department in the design-build solicitation
package. Criteria used in this evaluation of proposals may include,
but need not be limited to, items such as proposed design approach,
life-cycle costs, project features, and functions. However, any
criteria and methods used to evaluate proposals shall be limited to
those contained in the design-build solicitation package. Award shall
be made to the design-build entity whose proposal is judged as
providing the best value, for the lowest price, meeting the interests
of the department and meeting the objectives of the project. A
project with an approved budget of ten million dollars ($10,000,000)
or more may be awarded pursuant to this clause.
(iii) A design-build competition based upon program requirements
and a detailed scope of work, including any performance criteria and
concept drawings set forth by the department in the design-build
solicitation package. Award shall be made on the basis of the lowest
responsible bid. A project with an approved budget of two hundred
fifty thousand dollars ($250,000) or more may be awarded pursuant to
this clause.
(4) For the purposes of this subdivision, the following
definitions shall apply:
(A) "Best interest of the state" means a design-build process that
is projected by the director to reduce the project delivery schedule
and total cost of a project while maintaining a high level of
quality workmanship and materials, when compared to the traditional
design-bid-build process.
(B) "Best value" means a value determined by objective criteria
that may include, but is not limited to, price, features, functions,
life cycle costs, experience, and other criteria deemed appropriate
by the department.
(d) The Legislature 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
design, it is often impracticable for the design-build entity to list
all subcontractors at the time of the award. As a result, the
subcontractor listing requirements contained in Chapter 4 (commencing
with Section 4100) of Part 1 of Division 2 of the Public Contract
Code can create a conflict with the implementation of the
design-build process by requiring all subcontractors to be listed at
a time when a sufficient set of plans may not be available. It is the
intent of the Legislature to establish a clear process for the
selection and award of subcontracts entered into pursuant to this
section in a manner that retains protection for subcontractors while
enabling design-build projects to be administered in an efficient
fashion. Therefore, all of the following requirements shall apply to
subcontractors, licensed pursuant to Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code,
that are employed on design-build projects undertaken pursuant to
this section:
(1) The department, in each design-build solicitation package, may
identify types of subcontractors, by subcontractor license
classification, that will be listed by the design-build entity at the
time of the bid. In selecting the subcontractors that will be listed
by the design-build entity, the department shall limit the
identification to only those license classifications deemed essential
for proper completion of the project. In no event, however, may the
department specify more than five licensed subcontractor
classifications. In addition, at its discretion, the design-build
entity may list an additional two subcontractors, identified by
subcontractor license classification, that will perform design or
construction work, or both, on the project. In no event shall the
design-build entity list at the time of bid a total amount of
subcontractors that will perform design or construction work, or
both, in a total of more than seven subcontractor license
classifications on a project. All subcontractors that are listed at
the time of bid shall be afforded all of the protection contained in
Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 of
the Public Contract Code. All subcontracts that were not listed by
the design-build entity at the time of bid shall be awarded in
accordance with paragraph (2).
(2) All subcontracts that were not to be performed by the
design-build entity in accordance with paragraph (1) shall be
competitively bid and awarded by the design-build entity, in
accordance with the design-build process set forth by the department
in the design-build solicitation package. The design-build entity
shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted in accordance with Section 10140 of the Public Contract
Code.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with Section 10141 of the Public
Contract Code.
(C) As authorized by the department, establish reasonable
prequalification criteria and standards, limited in scope to those
detailed in paragraph (2) of subdivision (c).
(D) Provide that the subcontracted work shall be awarded to the
lowest responsible bidder.
(e) This section shall not be construed and is not intended to
extend or limit the authority specified in Section 19130.
(f) Any design-build entity that is selected to design and
construct a project pursuant to this section shall possess or obtain
sufficient bonding consistent with applicable provisions of the
Public Contract Code. Nothing in this section shall prohibit a
general or engineering contractor from being designated the lead
entity on a design-build entity for the purposes of purchasing
necessary bonding to cover the activities of the design-build entity.
(g) Any payment or performance bond written for the purposes of
this section shall use a bond form developed by the department. In
developing the bond form, the department shall consult with the
surety industry to achieve a bond form that is consistent with surety
industry standards, while protecting the interests of the state.
SEC. 96. Section 14661.1 of the
Government Code is amended to read:
14661.1. (a) For purposes of this section, the definitions in
subdivision (a) of Section 13332.19 shall apply. For purposes of
subdivision (a) of Section 13332.19, references to the Department of
General Services shall be deemed to be references to the Department
of General Services or the Department of Corrections and
Rehabilitation, as applicable.
(b) Notwithstanding any provision of the Public Contract Code or
any other provision of law, when the Legislature appropriates funds
for a specific project, or for any project using funds appropriated
pursuant to Chapter 3.2.1 (commencing with Section 15819.40) or 3.2.2
(commencing with Section 15819.41) of Part 10b of this division, the
Director of General Services or the Secretary of the Department of
Corrections and Rehabilitation, as appropriate, may contract and
procure state office facilities and prison facilities pursuant to
this section.
(c) Prior to contracting with a design-build entity for the
procurement of a state office facility or prison facility under this
section, the Director of General Services or the Secretary of the
Department of Corrections and Rehabilitation shall:
(1) Prepare a program setting forth the performance criteria for
the design-build project. The performance criteria shall be prepared
by a design professional duly licensed and registered in the State of
California.
(2) (A) Establish a competitive prequalification and selection
process for design-build entities, including any subcontractors
listed at the time of bid, that clearly specifies the
prequalification criteria, and states the manner in which the winning
design-build entity will be selected.
(B) Prequalification shall be limited to consideration of all of
the following criteria:
(i) Possession of all required licenses, registration, and
credentials in good standing that are required to design and
construct the project.
(ii) Submission of evidence that establishes that the design-build
entity members have completed, or demonstrated the capability to
complete, projects of similar size, scope, or complexity, and that
proposed key personnel have sufficient experience and training to
competently manage and complete the design and construction of the
project.
(iii) Submission of a proposed project management plan that
establishes that the design-build entity has the experience,
competence, and capacity needed to effectively complete the project.
(iv) Submission of evidence that establishes that the design-build
entity has the capacity to obtain all required payment and
performance bonding, liability insurance, and errors and omissions
insurance, as well as a financial statement that assures the
Department of General Services or the Department of Corrections and
Rehabilitation that the design-build entity has the capacity to
complete the project.
(v) Provision of a declaration certifying that applying members of
the design-build entity have not had a surety company finish work on
any project within the last five years.
(vi) Provision of information and a declaration providing detail
concerning all of the following:
(I) Any construction or design claim or litigation totaling more
than five hundred thousand dollars ($500,000) or 5 percent of the
annual value of work performed, whichever is less, settled against
any member of the design-build entity over the last five years.
(II) Serious violations of the California Occupational Safety and
Health Act of 1973, as provided in Part 1 (commencing with Section
6300) of Division 5 of the Labor Code, settled against any member of
the design-build entity.
(III) Violations of federal or state law, including, but not
limited to, those laws governing the payment of wages, benefits, or
personal income tax withholding, of Federal Insurance Contributions
Act (FICA) withholding requirements, state disability insurance
withholding, or unemployment insurance payment requirements, settled
against any member of the design-build entity over the last five
years. For purposes of this subclause, only violations by a
design-build 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 his or her subcontractor's
violations or failed to comply with the conditions set forth in
subdivision (b) of Section 1775 of the Labor Code.
(IV) Information required by Section 10162 of the Public Contract
Code.
(V) Violations of the Contractors'
Contractors State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
excluding alleged violations or complaints.
(VI) Any conviction of any member of the design-build entity of
submitting a false or fraudulent claim to a public agency over the
last five years.
(vii) Provision of a declaration that the design-build entity will
comply with all other provisions of law applicable to the project,
including, but not limited to, the requirements of Chapter 1
(commencing with Section 1720) of Part 7 of Division 2 of the Labor
Code.
(C) The Director of General Services or the Secretary of the
Department of Corrections and Rehabilitation, when requested by the
design-build entity, shall hold in confidence any information
required by clauses (i) to (vi), inclusive, of subparagraph (B).
(D) Any declaration required under subparagraph (B) shall state
that reasonable diligence has been used in its preparation and that
it is true and complete to the best of the signer's knowledge. A
person who certifies as true any material matter that he or she knows
to be false is guilty of a misdemeanor and shall be punished by not
more than one year in a county jail, by a fine of not more than five
thousand dollars ($5,000), or by both the fine and imprisonment.
(3) (A) Determine, as he or she deems in the best interests of the
state, which of the following methods listed in subparagraph (B)
will be used as the process for the winning design-build entity. He
or she shall provide a notification to the State Public Works Board,
regarding the method selected for determining the winning
design-build entity, at least 30 days prior to publicizing the
design-build solicitation package.
(B) The Director of General Services or the Secretary of the
Department of Corrections and Rehabilitation shall make his or her
determination by choosing one of the following methods:
(i) A design-build competition based upon performance, price, and
other criteria set forth by the Department of General Services or the
Department of Corrections and Rehabilitation in the design-build
solicitation package. The Department of General Services or the
Department of Corrections and Rehabilitation shall establish
technical criteria and methodology, including price, to evaluate
proposals and shall describe the criteria and methodology in the
design-build solicitation package. Award shall be made to the
design-build entity whose proposal is judged as providing the best
value in meeting the interests of the Department of General Services
or the Department of Corrections and Rehabilitation and meeting the
objectives of the project. A project with an approved budget of ten
million dollars ($10,000,000) or more may be awarded pursuant to this
clause.
(ii) A design-build competition based upon performance and other
criteria set forth by the Department of General Services or the
Department of Corrections and Rehabilitation in the design-build
solicitation package. Criteria used in this evaluation of proposals
may include, but need not be limited to, items such as proposed
design approach, life-cycle costs, project features, and functions.
However, any criteria and methods used to evaluate proposals shall be
limited to those contained in the design-build solicitation package.
Award shall be made to the design-build entity whose proposal is
judged as providing the best value, for the lowest price, meeting the
interests of the Department of General Services or the Department of
Corrections and Rehabilitation and meeting the objectives of the
project. A project with an approved budget of ten million dollars
($10,000,000) or more may be awarded pursuant to this clause.
(iii) A design-build competition based upon program requirements
and a detailed scope of work, including any performance criteria and
concept drawings set forth by the Department of General Services or
the Department of Corrections and Rehabilitation in the design-build
solicitation package. Award shall be made on the basis of the lowest
responsible bid. A project with an approved budget of two hundred
fifty thousand dollars ($250,000) or more may be awarded pursuant to
this clause.
(4) For purposes of this subdivision, the following definitions
shall apply:
(A) "Best interest of the state" means a design-build process that
is projected by the Director of General Services or the Secretary of
the Department of Corrections and Rehabilitation to reduce the
project delivery schedule and total cost of a project while
maintaining a high level of quality workmanship and materials, when
compared to the traditional design-bid-build process.
(B) "Best value" means a value determined by objective criteria
that may include, but are not limited to, price, features, functions,
life-cycle costs, experience, and other criteria deemed appropriate
by the Department of General Services or the Department of
Corrections and Rehabilitation.
(d) The Legislature 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
design, it is often impracticable for the design-build entity to list
all subcontractors at the time of the award. As a result, the
subcontractor listing requirements contained in Chapter 4 (commencing
with Section 4100) of Part 1 of Division 2 of the Public Contract
Code can create a conflict with the implementation of the
design-build process by requiring all subcontractors to be listed at
a time when a sufficient set of plans shall not be available. It is
the intent of the Legislature to establish a clear process for the
selection and award of subcontracts entered into pursuant to this
section in a manner that retains protection for subcontractors while
enabling design-build projects to be administered in an efficient
fashion. Therefore, all of the following requirements shall apply to
subcontractors, licensed pursuant to Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code,
that are employed on design-build projects undertaken pursuant to
this section:
(1) The Department of General Services and the
Department of Corrections and Rehabilitation, in each design-build
solicitation package, may identify types of subcontractors, by
subcontractor license classification, that will be listed by the
design-build entity at the time of the bid. In selecting the
subcontractors that will be listed by the design-build entity, the
Department of General Services and the Department of Corrections and
Rehabilitation shall limit the identification to only those license
classifications deemed essential for proper completion of the
project. In no event, however, may the Department of General Services
or the Department of Corrections and Rehabilitation specify more
than five licensed subcontractor classifications. In addition, at its
discretion, the design-build entity may list an additional two
subcontractors, identified by subcontractor license classification,
that will perform design or construction work, or both, on the
project. In no event shall the design-build entity list at the time
of bid a total number of subcontractors that will perform design or
construction work, or both, in a total of more than seven
subcontractor license classifications on a project. All
subcontractors that are listed at the time of bid shall be afforded
all of the protection contained in Chapter 4 (commencing with Section
4100) of Part 1 of Division 2 of the Public Contract Code. All
subcontracts that were not listed by the design-build entity at the
time of bid shall be awarded in accordance with paragraph (2).
(2) All subcontracts that were not to be performed by the
design-build entity in accordance with paragraph (1) shall be
competitively bid and awarded by the design-build entity, in
accordance with the design-build process set forth by the Department
of General Services or the Department of Corrections and
Rehabilitation in the design-build solicitation package. The
design-build entity shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted in accordance with Section 10140 of the Public Contract
Code.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with Section 10141 of the Public
Contract Code.
(C) As authorized by the Department of General Services or the
Department of Corrections and Rehabilitation, establish reasonable
prequalification criteria and standards, limited in scope to those
detailed in paragraph (2) of subdivision (c).
(D) Provide that the subcontracted work shall be awarded to the
lowest responsible bidder.
(e) This section shall not be construed and is not intended to
extend or limit the authority specified in Section 19130.
(f) Any design-build entity that is selected to design and
construct a project pursuant to this section shall possess or obtain
sufficient bonding consistent with applicable provisions of the
Public Contract Code. Nothing in this section shall prohibit a
general or engineering contractor from being designated the lead
entity on a design-build entity for the purposes of purchasing
necessary bonding to cover the activities of the design-build entity.
(g) Any payment or performance bond written for the purposes of
this section shall use a bond form developed by the Department of
General Services or the Department of Corrections and Rehabilitation.
In developing the bond form, the Department of General Services or
the Department of Correction and Rehabilitation shall consult with
the surety industry to achieve a bond form that is consistent with
surety industry standards, while protecting the interests of the
state.
(h) The Department of General Services or the Department of
Corrections and Rehabilitation, as appropriate, shall each submit to
the Joint Legislative Budget Committee, before January 1, 2014, a
report containing a description of each public works project procured
by that department through the design-build process described in
this section that is completed after January 1, 2009, and before
December 1, 2013. The report shall include, but shall not be limited
to, all of the following information:
(1) The type of project.
(2) The gross square footage of the project.
(3) The design-build entity that was awarded the project.
(4) The estimated and actual project costs.
(5) An assessment of the prequalification process and criteria.
(6) An assessment of the effect of any retention on the project
made under the law.
(7) A description of the method used to award the contract. If the
best value method was used, the report shall describe the factors
used to evaluate the bid, including the weighting of each factor and
an assessment of the effectiveness of the methodology.
(i) The authority provided under this section shall be in addition
to the authority provided to the Department of General Services
pursuant to Section 4 of Chapter 252 of the Statutes of 1998, as
amended by Section 3 of Chapter 154 of the Statutes of 2007. The
authority under this section and Section 70391.7 shall apply to a
total of not more than five state office facilities, prison
facilities, or court facilities, which shall be determined pursuant
to this subdivision.
(1) In order to enter into a contract utilizing the procurement
method authorized under this section, the Director of General
Services or the Secretary of the Department of Corrections and
Rehabilitation shall submit a request to the Department of Finance.
(2) The Department of Finance shall make a determination whether
to approve or deny a request made pursuant to paragraph (1) if the
design-build project requested will not exceed the five facilities
maximum set forth in this section and Section 70391.7.
(3) After receiving notification that the Department of Finance
has approved the request and that the Legislature has appropriated
funds for a specific project, the director or secretary may enter
into a design-build contract under this section.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available under the law.
SEC. 97. Section 26509 of the
Government Code is amended to read:
26509. (a) Notwithstanding any other provision of law, including
any provision making records confidential, and including Title 1.8
(commencing with Section 1798) of Part 4 of Division 3 of the Civil
Code, the district attorney shall be given access to, and may make
copies of, any complaint against a person subject to regulation by a
consumer-oriented state agency and any investigation of the person
made by the agency, where that person is being investigated by the
district attorney regarding possible consumer fraud.
(b) Where the district attorney does not take action with respect
to the complaint or investigation, the material shall remain
confidential.
(c) Where the release of the material would jeopardize an
investigation or other duties of a consumer-oriented state agency,
the agency shall have discretion to delay the release of the
information.
(d) As used in this section, a consumer-oriented state agency is
any state agency that regulates the licensure, certification, or
qualification of persons to practice a profession or business within
the state, where the regulation is for the protection of consumers
who deal with the professionals or businesses. It includes, but is
not limited to, all of the following:
(1) The Dental Board of California.
(2) The Medical Board of California.
(3) The State Board of Optometry.
(4) The California State Board of Pharmacy.
(5) The Veterinary Medical Board.
(6) The California Board of Accountancy.
(7) The California Architects Board.
(8) The State Board of Barbering and Cosmetology.
(9) The Board for Professional Engineers and Land Surveyors.
(10) The Contractors' Contractors
State License Board.
(11) The Funeral Directors and Embalmers Program.
(12) The Structural Pest Control Board.
(13) The Bureau of Home Furnishings and Thermal Insulation.
(14) The Board of Registered Nursing.
(15) The State Board of Chiropractic Examiners.
(16) The Board of Behavioral Science Examiners
Sciences .
(17) The State Athletic Commission.
(18) The Cemetery Program.
(19) The State Board of Guide Dogs for the Blind.
(20) The Bureau of Security and Investigative Services.
(21) The Court Reporters Board of California.
(22) The Board of Vocational Nursing and Psychiatric Technicians
of the State of California.
(23) The Osteopathic Medical Board of California.
(24) The Division of Investigation.
(25) The Bureau of Automotive Repair.
(26) The State Board for Geologists and Geophysicists.
(27) The Department of Alcoholic Beverage Control.
(28) The Department of Insurance.
(29) The Public Utilities Commission.
(30) The State Department of Public Health
Services .
(31) The New Motor Vehicle Board.
SEC. 98. Section 63047 of the
Government Code is amended to read:
63047. (a) Any loan entered into pursuant to this article may
contain provisions for payment of a penalty if any recipient of funds
under this article leaves this state prior to the completion of the
full term of the loan.
(b) Projects that the board determines will produce long-term
employment creation or retention shall receive first priority for
financing.
(c) Any recipient of funds under this article that utilizes the
funds for construction purposes, shall certify that the contractors
are properly licensed by the Contractors'
Contractors State License Board.
(d) The bank shall require that the proposed economic development
facilities be consistent with any existing local or regional
comprehensive plan.
(e) The bank shall develop a policy regarding financing companies
that move within this state so as to minimize any displacement of
jobs.
(f) In addition to any other methods the bank may use to identify
economic development projects, the bank shall utilize existing local
economic development networks to identify these projects and prepare
a plan, in consultation with local economic development networks and
their organizations and representatives, to implement this policy.
SEC. 99. Section 70391.7 of the
Government Code is amended to read:
70391.7. (a) For purposes of this section, the definitions in
subdivision (a) of Section 13332.19 shall apply. For purposes of
subdivision (a) of Section 13332.19, references to the Department of
General Services shall be deemed to be references to the Judicial
Council.
(b) Notwithstanding any provision of the Public Contract Code or
any other law, when the Legislature appropriates funds for a specific
project, the Judicial Council may contract and procure court
facilities pursuant to this section.
(c) Prior to contracting with a design-build entity for the
procurement of a court facility under this section, the Judicial
Council shall:
(1) Prepare a program setting forth the performance criteria for
the design-build project. The performance criteria shall be prepared
by a design professional duly licensed and registered in the State of
California.
(2) (A) Establish a competitive prequalification and selection
process for design-build entities, including any subcontractors
listed at the time of bid, that clearly specifies the
prequalification criteria, and states the manner in which the winning
design-build entity will be selected.
(B) Prequalification shall be limited to consideration of all of
the following criteria:
(i) Possession of all required licenses, registration, and
credentials in good standing that are required to design and
construct the project.
(ii) Submission of evidence that establishes that the design-build
entity members have completed, or demonstrated the capability to
complete, projects of similar size, scope, or complexity, and that
proposed key personnel have sufficient experience and training to
competently manage and complete the design and construction of the
project.
(iii) Submission of a proposed project management plan that
establishes that the design-build entity has the experience,
competence, and capacity needed to effectively complete the project.
(iv) Submission of evidence that establishes that the design-build
entity has the capacity to obtain all required payment and
performance bonding, liability insurance, and errors and omissions
insurance, as well as a financial statement that assures the Judicial
Council that the design-build entity has the capacity to complete
the project.
(v) Provision of a declaration certifying that applying members of
the design-build entity have not had a surety company finish work on
any project within the last five years.
(vi) Provision of information and a declaration providing detail
concerning all of the following:
(I) Any construction or design claim or litigation totaling more
than five hundred thousand dollars ($500,000) or 5 percent of the
annual value of work performed, whichever is less, settled against
any member of the design-build entity over the last five years.
(II) Serious violations of the California Occupational Safety and
Health Act of 1973, as provided in Part 1 (commencing with Section
6300) of Division 5 of the Labor Code, settled against any member of
the design-build entity.
(III) Violations of federal or state law, including, but not
limited to, those laws governing the payment of wages, benefits, or
personal income tax withholding, or of Federal Insurance
Contributions Act (FICA) withholding requirements, state disability
insurance withholding, or unemployment insurance payment
requirements, settled against any member of the design-build entity
over the last five years. For purposes of this subclause, only
violations by a design-build 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 his or her
subcontractor's violations or failed to comply with the conditions
set forth in subdivision (b) of Section 1775 of the Labor Code.
(IV) Information required by Section 10162 of the Public Contract
Code.
(V) Violations of the Contractors'
Contractors State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
excluding alleged violations or complaints.
(VI) Any conviction of any member of the design-build entity of
submitting a false or fraudulent claim to a public agency over the
last five years.
(vii) Provision of a declaration that the design-build entity will
comply with all other provisions of law applicable to the project,
including, but not limited to, the requirements of Chapter 1
(commencing with Section 1720) of Part 7 of Division 2 of the Labor
Code.
(C) The Judicial Council, when requested by the design-build
entity, shall hold in confidence any information required by clauses
(i) to (vi), inclusive, of subparagraph (B).
(D) Any declaration required under subparagraph (B) shall state
that reasonable diligence has been used in its preparation and that
it is true and complete to the best of the signer's knowledge. A
person who certifies as true any material matter that he or she knows
to be false is guilty of a misdemeanor and shall be punished by not
more than one year in a county jail, by a fine of not more than five
thousand dollars ($5,000), or by both the fine and imprisonment.
(3) (A) Determine, as the Judicial Council deems in the best
interests of the state, which of the following methods listed in
subparagraph (B) will be used as the process for the winning
design-build entity. The Judicial Council shall provide a
notification to the State Public Works Board, regarding the method
selected for determining the winning design-build entity, at least 30
days prior to publicizing the design-build solicitation package.
(B) The Judicial Council shall make its determination by choosing
one of the following methods:
(i) A design-build competition based upon performance, price, and
other criteria set forth by the Judicial Council in the design-build
solicitation package. The Judicial Council shall establish technical
criteria and methodology, including price, to evaluate proposals and
shall describe the criteria and methodology in the design-build
solicitation package. Award shall be made to the design-build entity
whose proposal is judged as providing the best value in meeting the
interests of the Judicial Council and meeting the objectives of the
project. A project with an approved budget of ten million dollars
($10,000,000) or more may be awarded pursuant to this clause.
(ii) A design-build competition based upon performance and other
criteria set forth by the Judicial Council in the design-build
solicitation package. Criteria used in this evaluation of proposals
may include, but need not be limited to, items such as proposed
design approach, life-cycle costs, project features, and functions.
However, any criteria and methods used to evaluate proposals shall be
limited to those contained in the design-build solicitation package.
Award shall be made to the design-build entity whose proposal is
judged as providing the best value, for the lowest price, meeting the
interests of the Judicial Council and meeting the objectives of the
project. A project with an approved budget of ten million dollars
($10,000,000) or more may be awarded pursuant to this clause.
(iii) A design-build competition based upon program requirements
and a detailed scope of work, including any performance criteria and
concept drawings set forth by the Judicial Council in the
design-build solicitation package. Award shall be made on the basis
of the lowest responsible bid. A project with an approved budget of
two hundred fifty thousand dollars ($250,000) or more may be awarded
pursuant to this clause.
(4) For purposes of this subdivision, the following definitions
shall apply:
(A) "Best interest of the state" means a design-build process that
is projected by the Judicial Council to reduce the project delivery
schedule and total cost of a project while maintaining a high level
of quality workmanship and materials, when compared to the
traditional design-bid-build process.
(B) "Best value" means a value determined by objective criteria
that may include, but are not limited to, price, features, functions,
life-cycle costs, experience, and other criteria deemed appropriate
by the Judicial Council.
(d) The Legislature 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
design, it is often impracticable for the design-build entity to list
all subcontractors at the time of the award. As a result, the
subcontractor listing requirements contained in Chapter 4 (commencing
with Section 4100) of Part 1 of Division 2 of the Public Contract
Code can create a conflict with the implementation of the
design-build process by requiring all subcontractors to be listed at
a time when a sufficient set of plans may not be available. It is the
intent of the Legislature to establish a clear process for the
selection and award of subcontracts entered into pursuant to this
section in a manner that retains protection for subcontractors while
enabling design-build projects to be administered in an efficient
fashion. Therefore, all of the following requirements shall apply to
subcontractors, licensed pursuant to Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code,
that are employed on design-build projects undertaken pursuant to
this section:
(1) The Judicial Council, in each design-build solicitation
package, may identify types of subcontractors, by subcontractor
license classification, that will be listed by the design-build
entity at the time of the bid. In selecting the subcontractors that
will be listed by the design-build entity, the Judicial Council shall
limit the identification to only those license classifications
deemed essential for proper completion of the project. In no event,
however, may the Judicial Council specify more than five licensed
subcontractor classifications. In addition, at its discretion, the
design-build entity may list an additional two subcontractors,
identified by subcontractor license classification, that will perform
design or construction work, or both, on the project. In no event
shall the design-build entity list at the time of bid a total number
of subcontractors that will perform design or construction work, or
both, in a total of more than seven subcontractor license
classifications on a project. All subcontractors that are listed at
the time of bid shall be afforded all of the protection contained in
Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 of
the Public Contract Code. All subcontracts that were not listed by
the design-build entity at the time of bid shall be awarded in
accordance with paragraph (2).
(2) All subcontracts that were not to be performed by the
design-build entity in accordance with paragraph (1) shall be
competitively bid and awarded by the design-build entity, in
accordance with the design-build process set forth by the Judicial
Council in the design-build solicitation package. The design-build
entity shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted in accordance with Section 10140 of the Public Contract
Code.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with Section 10141 of the Public
Contract Code.
(C) As authorized by the Judicial Council, establish reasonable
prequalification criteria and standards, limited in scope to those
detailed in paragraph (2) of subdivision (c).
(D) Provide that the subcontracted work shall be awarded to the
lowest responsible bidder.
(e) This section shall not be construed and is not intended to
extend or limit the authority specified in Section 19130.
(f) Any design-build entity that is selected to design and
construct a project pursuant to this section shall possess or obtain
sufficient bonding consistent with applicable provisions of the
Public Contract Code. Nothing in this section shall prohibit a
general or engineering contractor from being designated the lead
entity on a design-build entity for the purposes of purchasing
necessary bonding to cover the activities of the design-build entity.
(g) Any payment or performance bond written for the purposes of
this section shall use a bond form developed by the Judicial Council.
In developing the bond form, the Judicial Council shall consult with
the surety industry to achieve a bond form that is consistent with
surety industry standards, while protecting the interests of the
state.
(h) The Judicial Council shall submit to the Joint Legislative
Budget Committee, before January 1, 2014, a report containing a
description of each public works project procured through the
design-build process described in this section that is completed
after January 1, 2009, and before December 1, 2013. The report shall
include, but shall not be limited to, all of the following
information:
(1) The type of project.
(2) The gross square footage of the project.
(3) The design-build entity that was awarded the project.
(4) The estimated and actual project costs.
(5) An assessment of the prequalification process and criteria.
(6) An assessment of the effect of any retention on the project
made under the law.
(7) A description of the method used to award the contract. If the
best value method was used, the report shall describe the factors
used to evaluate the bid, including the weighting of each factor and
an assessment of the effectiveness of the methodology.
(i) The authority under this section and Section 14661.1 shall
apply to a total of not more than five state office facilities,
prison facilities, or court facilities, which shall be determined
pursuant to this subdivision.
(1) In order to enter into a contract utilizing the procurement
method authorized under this section, the Judicial Council shall
submit a request to the Department of Finance.
(2) The Department of Finance shall make a determination whether
to approve or deny a request made pursuant to paragraph (1) if the
design-build project requested will not exceed the five facilities
maximum set forth in this section and Section 14661.1.
(3) After receiving notification that the Department of Finance
has approved the request and that the Legislature has appropriated
funds for a specific project, the Judicial Council may enter into a
design-build contract under this section.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available under the law.
SEC. 100. Section 19825 of the Health
and Safety Code is amended to read:
19825. (a) Every city, county, or city and county, whether
general law or chartered, that requires the issuance of a permit as a
condition precedent to the construction, alteration, improvement,
demolition, or repair of any building or structure, shall require the
execution of a permit application, in substantially the same form
set forth under this subdivision, and require any individual who
executes the Owner-Builder Declaration to present documentation
sufficient to identify the property owner and, as necessary, verify
the signature of the property owner. A city, county, or city and
county may require additional information on the permit application.
PERMIT
APPLICATION
BUILDING PROJECT IDENTIFICATION
Applicant's Mailing Address _____________________
_____________________
Property Location or Address _____________________
_____________________
Property Owner's Name _____________________
Property Owner's Telephone _____________________
No.
Licensed Design Professional
(Architect or Engineer) in _____________________
charge of the project
Mailing Address of Licensed _____________________
Design Professional
_____________________
License No.__________
LICENSED CONTRACTOR'S DECLARATION
I hereby affirm under penalty of perjury that I
am licensed under provisions of Chapter 9
(commencing with Section 7000) of Division 3 of
the Business and Professions Code, and my license
is in full force and effect.
License Class________________ License No.__________
Date_________________________ Contractor Signature_
OWNER-BUILDER DECLARATION
I hereby affirm under penalty of perjury that I
am exempt from the Contractors ' State
License
L icense L aw for the reason(s) indicated
below by the
the checkmark(s) I have placed next to the
applicable
applicable item(s) (Section 7031.5, Business and
Professions
Professions Code: Any city or county that
requires a permit to
a permit to construct, alter, improve,
demolish, or repair
any
or repair any structure, prior to its issuance,
also requires
also requires the applicant for the permit
to file a signed
a signed statement that he or she is
licensed pursuant
to
pursuant to the provisions of the Contractors
' State
License
State License Law (Chapter 9 (commencing with
Section
7000) of
Section 7000) of Division 3 of the Business and
Professions
Code)
Professions Code) or that he or she is exempt
from
licensure
licensure and the basis for the alleged
exemption. Any
Any violation of Section 7031.5 by any
applicant for a
for a permit subjects the applicant to a
civil penalty
penalty of not more than five hundred
dollars ($500).):
($500).):
(_) I, as owner of the property, or my employees
with wages as their sole compensation, will do (_)
all of or (_) portions of the work, and the
structure is not intended or offered for sale
(Section 7044, Business and Professions Code: The
Contractors ' State License Law does
not apply to
an owner of property who, through employees' or
personal effort, builds or improves the property,
provided that the improvements are not intended or
offered for sale. If, however, the building
or improvement is sold within one year of
completion, the Owner-Builder will have the burden
of proving that it was not built or improved for
the purpose of sale.).
(_) I, as owner of the property, am exclusively
contracting with licensed Contractors to
construct the project (Section 7044, Business
and Professions Code: The Contractors ' State
License Law does not apply to an owner of
property who builds or improves thereon, and who
contracts for the projects with a licensed
Contractor pursuant to the Contractors ' State
License Law.).
(_) I am exempt from licensure under the
Contractors ' State License Law for the following
reason:
_________________________________________________
By my signature below I acknowledge that, except
for my personal residence in which I must have
resided for at least one year prior to
completion of the improvements covered by this
permit, I cannot legally sell a structure that I
have built as an owner-builder if it has not
been constructed in its entirety by
licensed contractors. I understand that a copy
of the applicable law, Section 7044 of the
Business and Professions Code, is available upon
request when this application is submitted or at
the following Web site:
http://www.leginfo.ca.gov/calaw.html.
Date______________________
Signature of Property Owner or Authorized
Agent
_________________________________________________
WORKERS' COMPENSATION DECLARATION
WARNING: FAILURE TO SECURE WORKERS' COMPENSATION
COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN
EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP
TO ONE HUNDRED THOUSAND DOLLARS ($100,000), IN
ADDITION TO THE COST OF COMPENSATION, DAMAGES AS
PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE,
INTEREST, AND ATTORNEY'S FEES.
I hereby affirm under penalty of perjury one of
the following declarations:
____ I have and will maintain a certificate of
consent to self-insure for workers' compensation,
issued by the Director of Industrial Relations as
provided for by Section 3700 of the Labor Code,
for the performance of the work for which this
permit is issued.
Policy No._____________________
____ I have and will maintain workers'
compensation insurance, as required by Section
3700 of the Labor Code, for the performance of
the work for which this permit is issued. My
workers' compensation insurance carrier and
policy number are:
Carrier_____________Policy Number Expiration Date
Name of Agent__________________ Phone #___________
____ I certify that, in the performance of the
work for which this permit is issued, I shall not
employ any person in any manner so as to become
subject to the workers' compensation laws of
California, and agree that, if I should become
subject to the workers' compensation provisions
of Section 3700 of the Labor Code, I shall
forthwith comply with those provisions.
____________
Signature of ______
__________ Date
Applicant
DECLARATION REGARDING CONSTRUCTION LENDING AGENCY
I hereby affirm under penalty of perjury that
there is a construction lending agency for the
performance of the work for which this permit is
issued (Section 3097, Civil Code).
Lender's Name___________________________________
Lender's Address________________________________
By my signature below, I certify to each of the
following:
I am the property owner or authorized to act on
the property owner's behalf.
I have read this application and the information
I have provided is correct.
I agree to comply with all applicable city and
county ordinances and state laws relating to
building construction.
I authorize representatives of this city or
county to enter the above-identified property for
inspection purposes.
Signature of Property Owner or Authorized Agent___
Date ____________________________
(b) When the Permit Application and the Owner-Builder Declaration
have been executed by a person other than the property owner, prior
to issuing the permit, the following shall be completed by the
property owner and returned to the agency responsible for issuing the
permit:
AUTHORIZATION OF AGENT TO ACT ON PROPERTY
OWNER'S BEHALF
Excluding the Notice to Property Owner, the
execution of which I understand is my personal
responsibility, I hereby authorize the following
person(s) to act as my agent(s) to apply for,
sign, and file the documents necessary to obtain
an Owner-Builder Permit for my project.
Scope of Construction Project (or Description of
Work):
_________________________________________________
Project Location or Address:_____________________
Name of Authorized
Agent:___________________________________________
Address of Authorized
Agent:___________________________________________
Phone Number of Authorized
Agent:___________________________________________
I declare under penalty of perjury that I am the
property owner for the address listed above and I
personally filled out the above information and
certify its accuracy.
Property Owner's Signature:__________________Date:
Note: A copy of the owner's driver's license, form
notarization, or other verification acceptable to
the agency is required to be presented when the
permit is issued to verify the property owner's
signature.
(c) When the Owner-Builder Declaration required under subdivision
(a) is executed, a Notice to Property Owner also shall be executed by
the property owner in substantially the same form set forth under
this section. The Notice to Property Owner shall appear on the
official letterhead of the issuer and shall be provided to the
applicant by one of the following methods chosen by the permitting
authority: regular mail, electronic format, or given directly to the
applicant at the time the application for the permit is made. Except
as otherwise provided, the Notice to Property Owner pursuant to this
section shall be completed and signed by the property owner and
returned prior to issuance of the permit. An agent of the owner shall
not execute this notice unless the property owner obtains the prior
approval of the permitting authority. A permit shall not be issued
unless the property owner complies with this section.
NOTICE TO PROPERTY OWNER
Dear Property Owner:
An application for a building permit has been
submitted in your name listing yourself as the
builder of the property improvements specified at
_______________.
We are providing you with an Owner-Builder
Acknowledgment and Information Verification Form
to make you aware of your responsibilities and
possible risk you may incur by having this
permit issued in your name as the Owner-Builder.
We will not issue a building permit until you
have read, initialed your understanding of each
provision, signed, and returned this form to us
at our official address indicated. An agent of
the owner cannot execute this notice unless you,
the property owner, obtain the prior approval of
the permitting
authority.
OWNER'S ACKNOWLEDGMENT AND VERIFICATION OF
INFORMATION
DIRECTIONS: Read and initial each statement below
to signify you understand or verify this
information.
____1. I understand a frequent practice of
unlicensed persons is to have the property
owner obtain an ""Owner-Builder'' building permit
that erroneously implies that the property owner
is providing his or her own labor and material
personally. I, as an Owner-Builder, may be held
liable and subject to serious financial risk for
any injuries sustained by an unlicensed person
and his or her employees while working on my
property. My homeowner's insurance may not
provide coverage for those injuries. I am
willfully acting as an Owner-Builder and am aware
of the limits of my insurance coverage for
injuries to workers on my property.
____2. I understand building permits are not
required to be signed by property owners unless
they areresponsiblefor the construction and are
not hiring a licensed Contractor to assume this
responsibility.
____3. I understand as an ""Owner-Builder''
I am the responsible party of record on the
permit. I understand that I may protect myself
from potential financial risk by hiring a
licensed Contractor and having the permit filed
in his or her name instead of my own.
____4. I understand Contractors are required by
law to be licensed and bonded in California and
to list their license numbers on permits and
contracts.
____5. I understand if I employ or otherwise
engage any persons, other than California
licensed Contractors, and the total value of my
construction is at least five hundred dollars
($500), including labor and materials, I may be
considered an ""employer'' under state and
federal law.
____6. I understand if I am considered an
""employer'' under state and federal law, I must
register with the state and federal government,
withhold payroll taxes, provide workers'
compensation disability insurance, and contribute
to unemployment compensation for each
""employee.'' I also understand my failure to
abide by these laws may subject me to serious
financial risk.
____7. I understand under California Contractors '
State License Law, an Owner-Builder who builds
single-family residential structures cannot
legally build them with the intent to offer them
for sale, unlessallwork is performed by licensed
subcontractors and the number of structures does
not exceed four within any calendar year,
or all of the work is performed under contract
with a licensed general building Contractor.
____8. I understand as an Owner-Builder if I sell
the property for which this permit is issued, I
may be held liable for any financial or personal
injuries sustained by any subsequent owner(s)
that result from any latent construction defects
in the workmanship or materials.
____9. I understand I may obtain more information
regarding my obligations as an ""employer'' from
the Internal Revenue Service, the United States
Small Business Administration, the California
Department of Benefit Payments, and the
California Division of Industrial Accidents. I
also understand I may contact the California
Contractors ' State License Board
(CSLB) at 1-800-
321-CSLB (2752) or www.cslb.ca.gov for more
information about licensed contractors.
____10. I am aware of and consent to an Owner-
Builder building permit applied for in my name,
and understand that I am the party legally and
financially responsible for proposed construction
activity at the following address:
__________________________________________________
____11. I agree that, as the party legally and
financially responsible for this proposed
construction activity, I will abide by all
applicable laws and requirements that govern
Owner-Builders as well as employers.
____ 12. I agree to notify the issuer of this
form immediately of any additions, deletions, or
changes to any of the information I have provided
on this form.
Licensed contractors are regulated by laws
designed to protect the public. If you contract
with someone who does not have a license, the
Contractors ' State License Board may
be unable to
assist you with any financial loss you may
sustain as a result of a complaint. Your only
remedy against unlicensed Contractors may be in
civil court. It is also important for you to
understand that if an unlicensed Contractor or
employee of that individual or firm is injured
while working on your property, you may be
held liable for damages. If you obtain a permit
as Owner-Builder and wish to hire Contractors,
you will be responsible for verifying whether or
not those Contractors are properly licensed and
the status of their workers' compensation
insurance coverage.
Before a building permit can be issued, this form
must be completed and signed by the property
owner and returned to the agency responsible for
issuing the permit.
Note: A copy of the property owner's driver's
license, form notarization, or other verification
acceptable to the agency is required to be
presented when the permit is issued to verify the
property owner's signature.
Signature of property owner______ Date:___________
SEC. 101. Section 25284.1 of the Health
and Safety Code is amended to read:
25284.1. (a) The board shall take all of the following actions
with regard to the prevention of unauthorized releases from petroleum
underground storage tanks:
(1) On or before June 1, 2000, initiate a field-based research
program to quantify the probability and environmental significance of
releases from underground storage tank systems meeting the 1998
upgrade requirements specified in Section 25284, as that section read
on January 1, 2002. The research program shall do all of the
following:
(A) Seek to identify the source and causes of releases and any
deficiencies in leak detection systems.
(B) Include single-walled, double-walled, and hybrid tank systems,
and avoid bias towards known leaking underground storage tank
systems by including a statistically valid sample of all operating
underground storage tank systems.
(C) Include peer review.
(2) Complete the research program on or before June 1, 2002.
(3) Use the results of the research program to develop appropriate
changes in design, construction, monitoring, operation, and
maintenance requirements for tank systems.
(4) On or before January 1, 2001, adopt regulations to do all of
the following:
(A) (i) Require underground storage tank owners, operators,
service technicians, installers, and inspectors to meet minimum
industry-established training standards and require tank facilities
to be operated in a manner consistent with industry-established best
management practices.
(ii) The board shall implement an outreach effort to educate small
business owners or operators on the importance of the regulations
adopted pursuant to this subparagraph.
(B) (i) Except as provided in clauses (ii) and (iii), require
testing of the secondary containment components, including
under-dispenser and pump turbine containment components, upon initial
installation of a secondary containment component and periodically
thereafter, to ensure that the system is capable of containing
releases from the primary containment until a release is detected and
cleaned up. The board shall consult with the petroleum industry and
local government to assess the appropriate test or tests that would
comply with this subparagraph.
(ii) Secondary containment components that are part of an
emergency generator tank system may be tested using enhanced leak
detection, if the test is performed at the frequency specified by the
board for testing of secondary containment pursuant to Section
2644.1 of Title 23 of the California Code of Regulations. If the
results of the enhanced leak detection test indicate that any
component of the emergency generator tank system is leaking liquid or
vapor, the owner or operator shall take appropriate actions to
correct the leakage, and the owner or operator shall retest the
system using enhanced leak detection until the system is no longer
leaking liquid or vapor.
(iii) Any tank or piping that is part of an emergency generator
tank system and located within a structure as described in paragraph
(2) of subdivision (a) of Section 25283.5 is exempt from the
secondary containment testing required by clause (i) of subparagraph
(B) of paragraph (4), if the owner or operator conducts visual
inspections of tank or piping each time the tank system is operated,
but no less than monthly, and maintains a log of inspection results
for review by the local agency. The provisions of this clause are not
applicable if the board adopts regulations pursuant to Section
25299.3 that address the design, construction, upgrade, and
monitoring of unburied tanks that are part of an emergency generator
tank system.
(C) Require annual testing of release detection sensors and
alarms, including under-dispenser and pump turbine containment
sensors and alarms. The board shall consult with the petroleum
industry and local government to assess the appropriate test or tests
that would comply with this subparagraph.
(5) (A) Require an owner or operator of an underground storage
tank installed after July 1, 1987, if a tank is located within 1,000
feet of a public drinking water well, as identified pursuant to the
state GIS mapping database, to have the underground storage tank
system fitted, on or before July 1, 2001, with under-dispenser
containment or a spill containment or control system that is approved
by the board as capable of containing any accidental release.
(B) Require all underground storage tanks installed after January
1, 2000, to have the tank system fitted with under-dispenser
containment or a spill containment or control system to meet the
requirements of subparagraph (A).
(C) Require an owner or operator of an underground storage tank
that is not otherwise subject to subparagraph (A), and not subject to
subparagraph (B), to have the underground storage tank system fitted
to meet the requirements of subparagraph (A), on or before December
31, 2003.
(D) On and after January 1, 2002, no person shall install, repair,
maintain, or calibrate monitoring equipment for an underground
storage tank unless that person satisfies both of the following
requirements:
(i) The person has fulfilled training standards identified by the
board in regulations adopted pursuant to this section.
(ii) The person possesses a tank testing license issued by the
board pursuant to Section 25284.4, or a Class "A"
General Engineering Contractor (A) License, C-10
Electrical (C-10) Contractor License,
C-34 Pipeline (C-34) Contractor License,
C-36 Plumbing (C-36) Contractor
License, or C-61 (D40) Limited Specialty Service
Station Equipment and Maintenance (C-61 (D40)) Contractor
License issued by the Contractors'
Contractors State License Board.
(E) Loans and grants for the installation of under-dispenser
containment or a spill containment or control system shall be made
available pursuant to Chapter 8.5 (commencing with Section 15399.10)
of Part 6.7 of Division 3 of Title 2 of the Government Code.
(6) Convene a panel of local agency and regional board
representatives to review existing enforcement authority and
procedures and to advise the board of any changes that are needed to
enable local agencies to take adequate enforcement action against
owners and operators of noncompliant underground storage tank
facilities. The panel shall make its recommendations to the board on
or before September 30, 2001. Based on the recommendations of the
panel, the board shall also establish effective enforcement
procedures in cases involving fraud.
(b) On or before July 1, 2001, the Contractors'
Contractors State License Board, in consultation with the
board, the petroleum industry, air pollution control districts, air
quality management districts, and local government, shall review its
requirements for petroleum underground storage tank system
installation and removal contractors and make changes, where
appropriate, to ensure these contractors are qualified.
SEC. 102. Section 98.9 of the Labor
Code is amended to read:
98.9. Upon a finding by the Labor Commissioner that a willful or
deliberate violation of any of the provisions of the Labor Code,
within the jurisdiction of the Labor Commissioner, has been committed
by a person licensed as a contractor pursuant to Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code, in the course of such licensed activity, the Labor
Commissioner shall immediately, upon expiration of the period for
review specified in Section 98.2, or other applicable section,
deliver a certified copy of the finding of the violation to the
registrar Registrar of the
Contractors' Contractors State License Board.
SEC. 103. Section 3099 of the Labor
Code is amended to read:
3099. (a) The Division of Apprenticeship Standards shall do all
of the following:
(1) On or before July 1, 2001, establish and validate minimum
standards for the competency and training of electricians through a
system of testing and certification.
(2) On or before March 1, 2000, establish an advisory committee
and panels as necessary to carry out the functions under this
section. There shall be contractor representation from both joint
apprenticeship programs and unilateral nonunion programs in the
electrical contracting industry.
(3) On or before July 1, 2001, establish fees necessary to
implement this section.
(4) On or before July 1, 2001, establish and adopt regulations to
enforce this section.
(5) Issue certification cards to electricians who have been
certified pursuant to this section. Fees collected pursuant to
paragraph (3) are continuously appropriated in an amount sufficient
to pay the costs of issuing certification cards, and that amount may
be expended for that purpose by the division.
(6) On or before July 1, 2003, establish an electrical
certification curriculum committee comprised of representatives of
the State Department of Education, the California Community Colleges,
and the division. The electrical certification curriculum committee
shall do all of the following:
(A) Establish written educational curriculum standards for
enrollees in training programs established pursuant to Section
3099.4.
(B) If an educational provider's curriculum meets the written
educational curriculum standards established in accordance with
subparagraph (A), designate that curriculum as an approved curriculum
of classroom instruction.
(C) At the committee's discretion, review the approved curriculum
of classroom instruction of any designated educational provider. The
committee may withdraw its approval of the curriculum if the
educational provider does not continue to meet the established
written educational curriculum standards.
(D) Require each designated educational provider to submit an
annual notice to the committee stating whether the educational
provider is continuing to offer the approved curriculum of classroom
instruction and whether any material changes have been made to the
curriculum since its approval.
(b) There shall be no discrimination for or against any person
based on membership or nonmembership in a union.
(c) As used in this section, "electricians" includes all persons
who engage in the connection of electrical devices for electrical
contractors licensed pursuant to Section 7058 of the Business and
Professions Code, specifically, contractors classified as electrical
contractors in the Contractors' Contrac
tors State License Board Rules and Regulations. This
section does not apply to electrical connections under 100
volt-amperes. This section does not apply to persons performing work
to which Section 7042.5 of the Business and Professions Code is
applicable, or to electrical work ordinarily and customarily
performed by stationary engineers. This section does not apply to
electrical work in connection with the installation, operation, or
maintenance of temporary or portable electrical equipment performed
by technicians in the theatrical, motion picture production,
television, hotel, exhibition, or trade show industries.
SEC. 104. Section 3099.2 of the Labor
Code is amended to read:
3099.2. (a) (1) Persons who perform work as electricians shall
become certified pursuant to Section 3099 by the deadline specified
in this subdivision. After the applicable deadline, uncertified
persons shall not perform electrical work for which certification is
required.
(2) The deadline for certification as a general electrician or
fire/life safety technician is January 1, 2006, except that persons
who applied for certification prior to January 1, 2006, have until
January 1, 2007, to pass the certification examination. The deadline
for certification as a residential electrician is January 1, 2007,
and the deadline for certification as a voice data video technician
or a nonresidential lighting technician is January 1, 2008. The
California Apprenticeship Council may extend the certification date
for any of these three categories of electricians up to January 1,
2009, if the council concludes that the existing deadline will not
provide persons sufficient time to obtain certification, enroll in an
apprenticeship or training program, or register pursuant to Section
3099.4.
(3) For purposes of any continuing education or recertification
requirement, individuals who become certified prior to the deadline
for certification shall be treated as having become certified on the
first anniversary of their certification date that falls after
the certification deadline.
(b) (1) Certification is required only for those persons who
perform work as electricians for contractors licensed as class C-10
electrical contractors under the Contractors'
Contractors State License Board Rules and Regulations.
(2) Certification is not required for persons performing work for
contractors licensed as class C-7 low voltage systems or class C-45
electric sign contractors as long as the work performed is within the
scope of the class C-7 or class C-45 license, including incidental
and supplemental work as defined in Section 7059 of the Business and
Professions Code, and regardless of whether the same contractor is
also licensed as a class C-10 contractor.
(3) Certification is not required for work performed by a worker
on a high-voltage electrical transmission or distribution system
owned by a local publicly owned electric utility, as defined in
Section 224.3 of the Public Utilities Code; an electrical
corporation, as defined in Section 218 of the Public Utilities Code;
a person, as defined in Section 205 of the Public Utilities Code; or
a corporation, as defined in Section 204 of the Public Utilities
Code; when the worker is employed by the utility or a licensed
contractor principally engaged in installing or maintaining
transmission or distribution systems.
(c) The division shall establish separate certifications for
general electrician, fire/life safety technician, residential
electrician, voice data video technician, and nonresidential lighting
technician.
(d) Notwithstanding subdivision (a), certification is not required
for registered apprentices performing electrical work as part of an
apprenticeship program approved under this chapter, a federal Office
of Apprenticeship program, or a state apprenticeship program
authorized by the federal Office of Apprenticeship. An apprentice who
is within one year of completion of his or her term of
apprenticeship shall be permitted to take the certification
examination and, upon passing the examination, shall be certified
immediately upon completion of the term of apprenticeship.
(e) Notwithstanding subdivision (a), certification is not required
for any person employed pursuant to Section 3099.4.
(f) Notwithstanding subdivision (a), certification is not required
for a nonresidential lighting trainee (1) who is enrolled in an
on-the-job instructional training program approved by the Chief of
the Division of Apprenticeship Standards pursuant to Section 3090,
and (2) who is under the onsite supervision of a nonresidential
lighting technician certified pursuant to Section 3099.
(g) Notwithstanding subdivision (a), the qualifying person for a
class C-10 electrical contractor license issued by the
Contractors' Contractors State License Board
need not also be certified pursuant to Section 3099 to perform
electrical work for that licensed contractor or to supervise an
uncertified person employed by that licensed contractor pursuant to
Section 3099.4.
(h) Commencing July 1, 2009, the following shall constitute
additional grounds for disciplinary proceedings, including suspension
or revocation of the license of a class C-10 electrical contractor
pursuant to Article 7 (commencing with Section 7090) of Chapter 9 of
Division 3 of the Business and Professions Code:
(1) The contractor willfully employs one or more uncertified
persons to perform work as electricians in violation of this section.
(2) The contractor willfully fails to provide the adequate
supervision of uncertified workers required by paragraph (3) of
subdivision (a) of Section 3099.4.
(3) The contractor willfully fails to provide adequate supervision
of apprentices performing work pursuant to subdivision (d).
(i) The Chief of the Division of Apprenticeship Standards shall
develop a process for referring cases to the Contractors' State
License Board when it has been determined that a violation of this
section has likely occurred. On or before July 1, 2009, the chief
shall prepare and execute a memorandum of understanding with the
Registrar of Contractors in furtherance of this section.
(j) Upon receipt of a referral by the Chief of the Division of
Apprenticeship Standards alleging a violation under this section, the
Registrar of Contractors shall open an investigation. Any
disciplinary action against the licensee shall be initiated within 60
days of the receipt of the referral. The Registrar of Contractors
may initiate disciplinary action against any licensee upon his or her
own investigation, the filing of any complaint, or any finding that
results from a referral from the Chief of the Division of
Apprenticeship Standards alleging a violation under this section.
Failure of the employer or employee to provide evidence of
certification or trainee status shall create a rebuttable presumption
of violation of this provision.
(k) For the purposes of this section, "electricians" has the same
meaning as the definition set forth in Section 3099.
SEC. 105. Section 6652 of the Labor
Code is amended to read:
6652. The division shall provide the Contractors'
Contractors State License Board with a certified
copy of every notice of civil penalty deemed to be a final order
pursuant to Section 6601 or after the exhaustion of all other review
procedures pursuant to Chapter 7 (commencing with Section 6600) when
both of the following have occurred:
(a) The employer served with the notice of civil penalty is, or is
thought to be, a licensee licensed by the Contractors'
Contractors State License Board.
(b) The employer referred to in subdivision (a) has failed to pay
the civil penalty after a period of 60 days following that employer's
receipt of the notice of civil penalty.
(c) When the employer has paid the civil penalty referenced in the
certified copy of notice of civil penalty that was provided to the
Contractors' Contractors State License
Board, including all interest owed thereon, then the division shall
provide to the employer who was the subject of the certified copy of
notice a written confirmation or receipt stating that the employer
has paid the amount owed that was the subject of the certified notice
provided to the board.
SEC. 106. Section 396 of the Penal Code
is amended to read:
396. (a) The Legislature hereby finds that during emergencies and
major disasters, including, but not limited to, earthquakes, fires,
floods, or civil disturbances, some merchants have taken unfair
advantage of consumers by greatly increasing prices for essential
consumer goods and services. While the pricing of consumer goods and
services is generally best left to the marketplace under ordinary
conditions, when a declared state of emergency results in abnormal
disruptions of the market, the public interest requires that
excessive and unjustified increases in the prices of essential
consumer goods and services be prohibited. It is the intent of the
Legislature in enacting this act to protect citizens from excessive
and unjustified increases in the prices charged during or shortly
after a declared state of emergency for goods and services that are
vital and necessary for the health, safety, and welfare of consumers.
Further it is the intent of the Legislature that this section be
liberally construed so that its beneficial purposes may be served.
(b) Upon the proclamation of a state of emergency resulting from
an earthquake, flood, fire, riot, storm, or natural or manmade
disaster declared by the President of the United States or the
Governor, or upon the declaration of a local emergency resulting from
an earthquake, flood, fire, riot, storm, or natural or manmade
disaster by the executive officer of any county, city, or city and
county, and for a period of 30 days following that declaration, it is
unlawful for a person, contractor, business, or other entity to sell
or offer to sell any consumer food items or goods, goods or services
used for emergency cleanup, emergency supplies, medical supplies,
home heating oil, building materials, housing, transportation,
freight, and storage services, or gasoline or other motor fuels for a
price of more than 10 percent above the price charged by that person
for those goods or services immediately prior to the proclamation of
emergency. However, a greater price increase is not unlawful if that
person can prove that the increase in price was directly
attributable to additional costs imposed on it by the supplier of the
goods, or directly attributable to additional costs for labor or
materials used to provide the services, provided that in those
situations where the increase in price is attributable to additional
costs imposed by the seller's supplier or additional costs of
providing the good or service during the state of emergency, the
price represents no more than 10 percent above the total of the cost
to the seller plus the markup customarily applied by the seller for
that good or service in the usual course of business immediately
prior to the onset of the state of emergency.
(c) Upon the proclamation of a state of emergency resulting from
an earthquake, flood, fire, riot, or storm declared by the President
of the United States or the Governor, or upon the declaration of a
local emergency resulting from an earthquake, flood, fire, riot, or
storm by the executive officer of any county, city, or city and
county, and for a period of 180 days following that declaration, it
is unlawful for a contractor to sell or offer to sell any repair or
reconstruction services or any services used in emergency cleanup for
a price of more than 10 percent above the price charged by that
person for those services immediately prior to the proclamation of
emergency. However, a greater price increase is not unlawful if that
person can prove that the increase in price was directly attributable
to additional costs imposed on it by the supplier of the goods, or
directly attributable to additional costs for labor or materials used
to provide the services, provided that in those situations where the
increase in price is attributable to the additional costs imposed by
the contractor's supplier or additional costs of providing the
service during the state of emergency, the price represents no more
than 10 percent above the total of the cost to the contractor plus
the markup customarily applied by the contractor for that good or
service in the usual course of business immediately prior to the
onset of the state of emergency.
(d) Upon the proclamation of a state of emergency resulting from
an earthquake, flood, fire, riot, storm, or other natural disaster
declared by the President of the United States or the Governor, or
upon the declaration of a local emergency resulting from an
earthquake, flood, fire, riot, storm, or other natural disaster by
the executive officer of any county, city, or city and county, and
for a period of 30 days following that proclamation or declaration,
it is unlawful for an owner or operator of a hotel or motel to
increase the hotel or motel's regular rates, as advertised
immediately prior to the proclamation or declaration of emergency, by
more than 10 percent. However, a greater price increase is not
unlawful if the owner or operator can prove that the increase in
price is directly attributable to additional costs imposed on it for
goods or labor used in its business, to seasonal adjustments in rates
that are regularly scheduled, or to previously contracted rates.
(e) The provisions of this section may be extended for additional
30-day periods by a local legislative body or the California
Legislature, if deemed necessary to protect the lives, property, or
welfare of the citizens.
(f) A violation of this section is a misdemeanor punishable by
imprisonment in a county jail for a period not exceeding one year, or
by a fine of not more than ten thousand dollars ($10,000), or by
both that fine and imprisonment.
(g) A violation of this section shall constitute an unlawful
business practice and an act of unfair competition within the meaning
of Section 17200 of the Business and Professions Code. The remedies
and penalties provided by this section are cumulative to each other,
the remedies under Section 17200 of the Business and Professions
Code, and the remedies or penalties available under all other laws of
this state.
(h) For the purposes of this section, the following terms have the
following meanings:
(1) "State of emergency" means a natural or manmade disaster or
emergency resulting from an earthquake, flood, fire, riot, or storm
for which a state of emergency has been declared by the President of
the United States or the Governor of California.
(2) "Local emergency" means a natural or manmade disaster or
emergency resulting from an earthquake, flood, fire, riot, or storm
for which a local emergency has been declared by the executive
officer or governing body of any city or county in California.
(3) "Consumer food item" means any article that is used or
intended for use for food, drink, confection, or condiment by a
person or animal.
(4) "Repair or reconstruction services" means services performed
by any person who is required to be licensed under the
Contractors' Contractors State License Law
(Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code), for repairs to residential or
commercial property of any type that is damaged as a result of a
disaster.
(5) "Emergency supplies" includes, but is not limited to, water,
flashlights, radios, batteries, candles, blankets, soaps, diapers,
temporary shelters, tape, toiletries, plywood, nails, and hammers.
(6) "Medical supplies" includes, but is not limited to,
prescription and nonprescription medications, bandages, gauze,
isopropyl alcohol, and antibacterial products.
(7) "Building materials" means lumber, construction tools,
windows, and anything else used in the building or rebuilding of
property.
(8) "Gasoline" means any fuel used to power any motor vehicle or
power tool.
(9) "Transportation, freight, and storage services" means any
service that is performed by any company that contracts to move,
store, or transport personal or business property or rents equipment
for those purposes.
(10) "Housing" means any rental housing leased on a month-to-month
term.
(11) "Goods" has the same meaning as defined in subdivision (c) of
Section 1689.5 of the Civil Code.
(i) Nothing in this section shall preempt any local ordinance
prohibiting the same or similar conduct or imposing a more severe
penalty for the same conduct prohibited by this section.
(j) A business offering an item for sale at a reduced price
immediately prior to the proclamation of the emergency may use the
price at which it usually sells the item to calculate the price
pursuant to subdivision (b) or (c).
SEC. 107. Section 830.3 of the Penal
Code is amended to read:
830.3. The following persons are peace officers whose authority
extends to any place in the state for the purpose of performing their
primary duty or when making an arrest pursuant to Section 836
of the Penal Code as to any public offense with
respect to which there is immediate danger to person or property, or
of the escape of the perpetrator of that offense, or pursuant to
Section 8597 or 8598 of the Government Code. These peace officers may
carry firearms only if authorized and under those terms and
conditions as specified by their employing agencies:
(a) Persons employed by the Division of Investigation of the
Department of Consumer Affairs and investigators of the Medical Board
of California and the Board of Dental Examiners, who are designated
by the Director of Consumer Affairs, provided that the primary duty
of these peace officers shall be the enforcement of the law as that
duty is set forth in Section 160 of the Business and Professions
Code.
(b) Voluntary fire wardens designated by the Director of Forestry
and Fire Protection pursuant to Section 4156 of the Public Resources
Code, provided that the primary duty of these peace officers shall be
the enforcement of the law as that duty is set forth in Section 4156
of that code.
(c) Employees of the Department of Motor Vehicles designated in
Section 1655 of the Vehicle Code, provided that the primary duty of
these peace officers shall be the enforcement of the law as that duty
is set forth in Section 1655 of that code.
(d) Investigators of the California Horse Racing Board designated
by the board, provided that the primary duty of these peace officers
shall be the enforcement of Chapter 4 (commencing with Section 19400)
of Division 8 of the Business and Professions Code and Chapter 10
(commencing with Section 330) of Title 9 of Part 1 of this code.
(e) The State Fire Marshal and assistant or deputy state fire
marshals appointed pursuant to Section 13103 of the Health and Safety
Code, provided that the primary duty of these peace officers shall
be the enforcement of the law as that duty is set forth in Section
13104 of that code.
(f) Inspectors of the food and drug section designated by the
chief pursuant to subdivision (a) of Section 106500 of the Health and
Safety Code, provided that the primary duty of these peace officers
shall be the enforcement of the law as that duty is set forth in
Section 106500 of that code.
(g) All investigators of the Division of Labor Standards
Enforcement designated by the Labor Commissioner, provided that the
primary duty of these peace officers shall be the enforcement of the
law as prescribed in Section 95 of the Labor Code.
(h) All investigators of the State Departments of Health Care
Services, Public Health, Social Services, Mental Health, and Alcohol
and Drug Programs, the Department of Toxic Substances Control, the
Office of Statewide Health Planning and Development, and the Public
Employees' Retirement System, provided that the primary duty of these
peace officers shall be the enforcement of the law relating to the
duties of his or her department or office. Notwithstanding any other
provision of law, investigators of the Public Employees' Retirement
System shall not carry firearms.
(i) The Chief of the Bureau of Fraudulent Claims of the Department
of Insurance and those investigators designated by the chief,
provided that the primary duty of those investigators shall be the
enforcement of Section 550.
(j) Employees of the Department of Housing and Community
Development designated under Section 18023 of the Health and Safety
Code, provided that the primary duty of these peace officers shall be
the enforcement of the law as that duty is set forth in Section
18023 of that code.
(k) Investigators of the office of the Controller, provided that
the primary duty of these investigators shall be the enforcement of
the law relating to the duties of that office. Notwithstanding any
other law, except as authorized by the Controller, the peace officers
designated pursuant to this subdivision shall not carry firearms.
(l) Investigators of the Department of Corporations designated by
the Commissioner of Corporations, provided that the primary duty of
these investigators shall be the enforcement of the provisions of law
administered by the Department of Corporations. Notwithstanding any
other provision of law, the peace officers designated pursuant to
this subdivision shall not carry firearms.
(m) Persons employed by the Contractors'
Contractors State License Board designated by the Director of
Consumer Affairs pursuant to Section 7011.5 of the Business and
Professions Code, provided that the primary duty of these persons
shall be the enforcement of the law as that duty is set forth in
Section 7011.5, and in Chapter 9 (commencing with Section 7000) of
Division 3, of that code. The Director of Consumer Affairs may
designate as peace officers not more than three persons who shall at
the time of their designation be assigned to the special
investigations unit of the board. Notwithstanding any other provision
of law, the persons designated pursuant to this subdivision shall
not carry firearms.
(n) The Chief and coordinators of the Law Enforcement Division of
the Office of Emergency Services.
(o) Investigators of the office of the Secretary of State
designated by the Secretary of State, provided that the primary duty
of these peace officers shall be the enforcement of the law as
prescribed in Chapter 3 (commencing with Section 8200) of Division 1
of Title 2 of, and Section 12172.5 of, the Government Code.
Notwithstanding any other provision of law, the peace officers
designated pursuant to this subdivision shall not carry firearms.
(p) The Deputy Director for Security designated by Section 8880.38
of the Government Code, and all lottery security personnel assigned
to the California State Lottery and designated by the director,
provided that the primary duty of any of those peace officers shall
be the enforcement of the laws related to assuring the integrity,
honesty, and fairness of the operation and administration of the
California State Lottery.
(q) Investigators employed by the Investigation Division of the
Employment Development Department designated by the director of the
department, provided that the primary duty of those peace officers
shall be the enforcement of the law as that duty is set forth in
Section 317 of the Unemployment Insurance Code.
Notwithstanding any other provision of law, the peace officers
designated pursuant to this subdivision shall not carry firearms.
(r) The chief and assistant chief of museum security and safety of
the California Science Center, as designated by the executive
director pursuant to Section 4108 of the Food and Agricultural Code,
provided that the primary duty of those peace officers shall be the
enforcement of the law as that duty is set forth in Section 4108 of
the Food and Agricultural Code.
(s) Employees of the Franchise Tax Board designated by the board,
provided that the primary duty of these peace officers shall be the
enforcement of the law as set forth in Chapter 9 (commencing with
Section 19701) of Part 10.2 of Division 2 of the Revenue and Taxation
Code.
(t) Notwithstanding any other provision of this section, a peace
officer authorized by this section shall not be authorized to carry
firearms by his or her employing agency until that agency has adopted
a policy on the use of deadly force by those peace officers, and
until those peace officers have been instructed in the employing
agency's policy on the use of deadly force.
Every peace officer authorized pursuant to this section to carry
firearms by his or her employing agency shall qualify in the use of
the firearms at least every six months.
(u) Investigators of the Department of Managed Health Care
designated by the Director of the Department of Managed Health Care,
provided that the primary duty of these investigators shall be the
enforcement of the provisions of laws administered by the Director of
the Department of Managed Health Care. Notwithstanding any other
provision of law, the peace officers designated pursuant to this
subdivision shall not carry firearms.
(v) The Chief, Deputy Chief, supervising investigators, and
investigators of the Office of Protective Services of the State
Department of Developmental Services, provided that the primary duty
of each of those persons shall be the enforcement of the law relating
to the duties of his or her department or office.
SEC. 108. Section 6100 of the Public
Contract Code is amended to read:
6100. (a) Any state agency or department, as defined in Section
10357, which is subject to this code, shall, prior to awarding a
contract for work to be performed by a contractor, as defined by
Section 7026 of the Business and Professions Code, verify with the
Contractors' Contractors State License
Board that the person seeking the contract is licensed in a
classification appropriate to the work to be undertaken. Verification
as required by this section need only be made once every two years
with respect to the same contractor.
(b) In lieu of the verification, the state entity may require the
person seeking the contract to present his or her pocket license or
certificate of licensure and provide a signed statement which swears,
under penalty of perjury, that the pocket license or certificate of
licensure presented is his or hers, is current and valid, and is in a
classification appropriate to the work to be undertaken.
SEC. 109. Section 6805 of the Public
Contract Code is amended to read:
6805. The procurement process for the design-build projects shall
progress as follows:
(a) The transportation entity shall prepare a set of documents
setting forth the scope and estimated price of the project. The
documents may include, but need not be limited to, the size, type,
and desired design character of the project, performance
specifications covering the quality of materials, equipment,
workmanship, preliminary plans, and any other information deemed
necessary to describe adequately the transportation entity's needs.
The performance specifications and any plans shall be prepared by a
design professional who is duly licensed and registered in
California.
(b) Based on the documents prepared as described in subdivision
(a), the transportation entity shall prepare a request for proposals
that invites interested parties to submit competitive sealed
proposals in the manner prescribed by the transportation entity. The
request for proposals shall include, but need not be limited to, the
following elements:
(1) Identification of the basic scope and needs of the project or
contract, the estimated cost of the project, the methodology that
will be used by the transportation entity to evaluate proposals,
whether the contract will be awarded on the basis of the lowest
responsible bid or on best value, and any other information deemed
necessary by the transportation entity to inform interested parties
of the contracting opportunity.
(2) Significant factors that the transportation entity reasonably
expects to consider in evaluating proposals, including, but not
limited to, cost or price and all nonprice-related factors.
(3) The relative importance or the weight assigned to each of the
factors identified in the request for proposals.
(4) For transportation entities authorized to utilize best value
as a selection method, the transportation entity reserves the right
to request proposal revisions and hold discussions and negotiations
with responsive bidders and shall so specify in the request for
proposals and shall publish separately or incorporate into the
request for proposals applicable
rules and procedures to be observed by the transportation entity
to ensure that any discussions or negotiations are conducted in good
faith.
(c) Based on the documents prepared under subdivision (a), the
transportation entity shall prepare and issue a request for
qualifications in order to prequalify the design-build entities whose
proposals shall be evaluated for final selection. The request for
qualifications shall include, but need not be limited to, the
following elements:
(1) Identification of the basic scope and needs of the project or
contract, the expected cost range, the methodology that will be used
by the transportation entity to evaluate proposals, the procedure for
final selection of the design-build entity, and any other
information deemed necessary by the transportation entity to inform
interested parties of the contracting opportunity.
(2) (A) Significant factors that the transportation entity
reasonably expects to consider in evaluating qualifications,
including technical design and construction expertise, skilled labor
force availability, and all other nonprice-related factors.
(B) For purposes of subparagraph (A), skilled labor force
availability shall be determined by the existence of an agreement
with a registered apprenticeship program, approved by the California
Apprenticeship Council, that has graduated at least one apprentice in
each of the preceding five years. This graduation requirement shall
not apply to programs providing apprenticeship training for any craft
that was first deemed by the Department of Labor and the Department
of Industrial Relations to be an apprenticeable craft within the five
years prior to the effective date of this article.
(3) A standard form request for statements of qualifications
prepared by the transportation entity. In preparing the standard
form, the transportation entity may consult with the construction
industry, the building trades and surety industry, and other public
agencies interested in using the authorization provided by this
chapter. The standard form shall require information including, but
not limited to, all of the following:
(A) If the design-build entity is a partnership, limited
partnership, joint venture, or other association, a listing of all of
the partners, general partners, or association members known at the
time of statement of qualification submission who will participate in
the design-build contract.
(B) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project, and a financial statement that
assures the transportation entity that the design-build entity has
the capacity to complete the project.
(C) The licenses, registration, and credentials required to design
and construct the project, including, but not limited to,
information on the revocation or suspension of any license,
credential, or registration.
(D) Evidence that establishes that the design-build entity has the
capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance.
(E) Information concerning workers' compensation experience
history and a worker safety program.
(F) A full disclosure regarding all of the following that are
applicable:
(i) Any serious or willful violation of Part 1 (commencing with
Section 6300) of Division 5 of the Labor Code or the federal
Occupational Safety and Health Act of 1970 (Public Law 91-596),
settled against any member of the design-build entity.
(ii) Any debarment, disqualification, or removal from a federal,
state, or local government public works project.
(iii) Any instance where the design-build entity, or its owners,
officers, or managing employees submitted a bid on a public works
project and were found to be nonresponsive or were found by an
awarding body not to be a responsible bidder.
(iv) Any instance where the design-build entity, or its owners,
officers, or managing employees defaulted on a construction contract.
(v) Any violations of the Contractors'
Contractors State License Law, as described in Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code, including alleged violations of federal or state
law regarding the payment of wages, benefits, apprenticeship
requirements, or personal income tax withholding, or Federal
Insurance Contribution Act (FICA) withholding requirements settled
against any member of the design-build entity.
(vi) Any bankruptcy or receivership of any member of the
design-build entity, including, but not limited to, information
concerning any work completed by a surety.
(vii) Any settled adverse claims, disputes, or lawsuits between
the owner of a public works project and any member of the
design-build entity during the five years preceding submission of a
bid under this article, in which the claim, settlement, or judgment
exceeds fifty thousand dollars ($50,000). Information shall also be
provided concerning any work completed by a surety during this
five-year period.
(G) If the proposed design-build entity is a partnership, limited
partnership, joint-venture, or other association, a copy of the
organizational documents or agreement committing to form the
organization, and a statement that all general partners, joint
venture members, or other association members agree to be fully
liable for the performance under the design-build contract.
(H) An acceptable safety record. A bidder's safety record shall be
deemed acceptable if its experience modification rate for the most
recent three-year period is an average of 1.00 or less, and its
average total recordable injury/illness rate and average lost work
rate for the most recent three-year period does not exceed the
applicable statistical standards for its business category or if the
bidder is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
(4) The information required under this subdivision shall be
verified under oath by the design-build entity and its members in the
manner in which civil pleadings in civil actions are verified.
Information required under this subdivision that is not a public
record under the California Public Records Act, as described in
Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code, shall not be open to public inspection.
(d) For those projects utilizing low bid as the final selection
method, the competitive bidding process shall result in lump-sum bids
by the prequalified design-build entities. Awards shall be made to
the lowest responsible bidder.
(e) For those projects utilizing best value as a selection method,
the design-build competition shall progress as follows:
(1) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposals. However, the following minimum factors shall
be weighted as deemed appropriate by the contracting transportation
entity:
(A) Price.
(B) Technical design and construction expertise.
(C) Life-cycle costs over 15 years or more.
(2) Pursuant to subdivision (b), the transportation entity may
hold discussions or negotiations with responsive bidders using the
process articulated in the transportation entity's request for
proposals.
(3) When the evaluation is complete, the top three responsive
bidders shall be ranked sequentially based on a determination of
value provided.
(4) The award of the contract shall be made to the responsible
bidder whose proposal is determined by the transportation entity to
have offered the best value to the public.
(5) Notwithstanding any other provision of this code, upon
issuance of a contract award, the transportation entity shall
publicly announce its award, identifying the contractor to whom the
award is made, along with a written decision supporting its contract
award and stating the basis of the award. The notice of award shall
also include the transportation entity's second- and third-ranked
design-build entities.
(6) The written decision supporting the transportation entity's
contract award, described in paragraph (5), and the contract file
shall provide sufficient information to satisfy an external audit.
SEC. 110. Section 10262 of the Public
Contract Code is amended to read:
10262. The contractor shall pay to his or her subcontractors,
within 10 days of receipt of each progress payment, the respective
amounts allowed the contractor on account of the work performed by
his or her subcontractors, to the extent of each subcontractor's
interest therein. The payments to subcontractors shall be based on
estimates made pursuant to Section 10261. Any diversion by the
contractor of payments received for prosecution of a contract, or
failure to reasonably account for the application or use of the
payments constitutes ground for actions proscribed in Section 10253,
in addition to disciplinary action by the Contractors'
Contractors State License Board. The
subcontractor shall notify, in writing, the Contractors'
Contractors State License Board and the
department of any payment less than the amount or percentage approved
for the class or item of work as set forth in Section 10261.
SEC. 111. Section 10762 of the Public
Contract Code is amended to read:
10762. In all projects for road, street, and bridge work where
federal funds are involved and where a bidder is required to be and
has been prequalified pursuant to Sections 10760 and 10761, no bid
submitted or contract thereafter awarded shall be invalidated by the
failure of the bidder or contractor to be properly licensed in
accordance with the laws of this state, nor shall any such contractor
be denied payment under any such contract because of such failure;
provided, however, that the first payment for work or material under
such contract shall not be made by the Controller unless and until
the Registrar of Contractors certifies to him that the records of the
Contractors' Contractors State License
Board indicate that such contractor was or became properly licensed
between the time of bid opening and the making of the certification.
Any bidder or contractor not so licensed shall be subject to all
legal penalties imposed by such laws, including, but not limited to,
any appropriate disciplinary action by the Contractors'
Contractors State License Board, and the
trustees shall include a statement to that effect in the standard
form of prequalification questionnaire and financial statement.
SEC. 112. Section 20103.5 of the Public
Contract Code is amended to read:
20103.5. In all contracts subject to this part where federal
funds are involved, no bid submitted shall be invalidated by the
failure of the bidder to be licensed in accordance with the laws of
this state. However, at the time the contract is awarded, the
contractor shall be properly licensed in accordance with the laws of
this state. The first payment for work or material under any contract
shall not be made unless and until the Registrar of Contractors
verifies to the agency that the records of the Contractors'
Contractors State License Board indicate that
the contractor was properly licensed at the time the contract was
awarded. Any bidder or contractor not so licensed shall be subject to
all legal penalties imposed by law, including, but not limited to,
any appropriate disciplinary action by the Contractors'
Contractors State License Board. The agency
shall include a statement to that effect in the standard form of
prequalification questionnaire and financial statement. Failure of
the bidder to obtain proper and adequate licensing for an award of a
contract shall constitute a failure to execute the contract and shall
result in the forfeiture of the security of the bidder.
SEC. 113. Section 20175.2 of the Public
Contract Code is amended to read:
20175.2. (a) (1) A city, with approval of the appropriate city
council, may utilize an alternative procedure for bidding on building
construction projects in the city in excess of one million dollars
($1,000,000), except as provided in subdivision (p).
(2) Cities may award the project using either the lowest
responsible bidder or by best value.
(b) (1) It is the intent of the Legislature to enable cities to
utilize cost-effective options for building and modernizing public
facilities. The Legislature also recognizes the national trend,
including authorization in California, to allow public entities to
utilize design-build contracts as a project delivery method. It is
not the intent of the Legislature to authorize this procedure for
transportation facilities, including, but not limited to, roads and
bridges.
(2) The Legislature also finds and declares that utilizing a
design-build contract requires a clear understanding of the roles and
responsibilities of each participant in the design-build process.
The Legislature also finds that the cost-effective benefits to cities
are achieved by shifting the liability and risk for cost containment
and project completion to the design-build entity.
(3) It is the intent of the Legislature to provide an alternative
and optional procedure for bidding and building construction projects
for cities.
(4) The design-build approach may be used, but is not limited to
use, when it is anticipated that it will: reduce project cost,
expedite project completion, or provide design features not
achievable through the design-bid-build method.
(5) (A) For contracts awarded prior to the effective date of
either the regulations adopted by the Department of Industrial
Relations pursuant to subdivision (b) of Section 1771.55 of the Labor
Code or the fees established by the department pursuant to
subparagraph (B), if a city council elects to proceed under this
section, the city council shall establish and enforce, for
design-build projects, a labor compliance program containing the
requirements outlined in Section 1771.5 of the Labor Code, or it
shall contract with a third party to operate a labor compliance
program containing the requirements outlined in Section 1771.5 of the
Labor Code. This requirement shall not apply to any project where
the city or the design-build entity has entered into any collective
bargaining agreement or agreements that bind all of the contractors
performing work on the projects.
(B) For contracts awarded on or after the effective date of both
the regulations adopted by the Department of Industrial Relations
pursuant to subdivision (b) of Section 1771.55 of the Labor Code and
the fees established by the department pursuant to this subparagraph,
the city council shall pay a fee to the department, in an amount
that the department shall establish, and as it may from time to time
amend, sufficient to support the department's costs in ensuring
compliance with and enforcing prevailing wage requirements on the
project, and labor compliance enforcement as set forth in subdivision
(b) of Section 1771.55. All fees collected pursuant to this
paragraph shall be deposited in the State Public Works Enforcement
Fund created by Section 1771.3 of the Labor Code, and shall be used
only for enforcement of prevailing wage requirements on those
projects.
(C) The Department of Industrial Relations may waive the fee set
forth in subparagraph (2) if the city council has previously been
granted approval by the director to initiate and operate a labor
compliance program on its projects and requests to continue to
operate that labor compliance program on its projects in lieu of
labor compliance by the department pursuant to subdivision (b) of
Section 1771.55. The fee shall not be waived for the city council if
it contracts with a third party to initiate and enforce labor
compliance programs on its projects.
(c) As used in this section:
(1) "Best value" means a value determined by objectives relative
to price, features, functions, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services, as needed,
pursuant to a design-build contract.
(4) "Project" means the construction of a building and
improvements directly related to the construction of a building, but
does not include streets and highways, public rail transit, or water
resource facilities and infrastructure.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The city shall prepare a set of documents setting forth
the scope of the project. The documents may include, but are not
limited to, the size, type, and desired design character of the
buildings and site, performance specifications covering the quality
of materials, equipment, and workmanship, preliminary plans or
building layouts, or any other information deemed necessary to
describe adequately the city's needs. The performance specifications
and any plans shall be prepared by a design professional who is duly
licensed and registered in California.
(B) Any architect or engineer retained by the city to assist in
the development of the project-specific documents shall not be
eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared in paragraph (1), the city
shall prepare a request for proposals that invites interested
parties to submit competitive sealed proposals in the manner
prescribed by the city. The request for proposals shall include, but
is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the city to inform interested parties of the contracting
opportunity, to include the methodology that will be used by the
city to evaluate proposals, and specifically if the contract will be
awarded to the lowest responsible bidder.
(ii) Significant factors which the city reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice related factors.
(iii) The relative importance of weight assigned to each of the
factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the agency shall specifically disclose
whether all evaluation factors, other than cost or price, when
combined are:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(C) If the city chooses to reserve the right to hold discussions
or negotiations with responsive bidders, it shall so specify in the
request for proposal and shall publish separately, or incorporate
into the request for proposal, applicable rules and procedures to be
observed by the city to ensure that any discussions or negotiations
are conducted in good faith.
(3) (A) The city shall establish a procedure to prequalify
design-build entities using a standard questionnaire developed by the
city. In preparing the questionnaire, the city shall consult with
the construction industry, including representatives of the building
trades and surety industry. This questionnaire shall require
information including, but not limited to, all of the following:
(i) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project, as well as a financial statement
that assures the city that the design-build entity has the capacity
to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) Evidence that establishes that the design-build entity has
the capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance.
(v) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code or the
federal Occupational Safety and Health Act of 1970 (Public Law
91-596) settled against any member of the design-build entity, and
information concerning workers' compensation experience history and
worker safety program.
(vi) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance where an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found to be nonresponsive, or were found by an awarding body not to
be a responsible bidder.
(vii) Any instance where the entity, its owners, officers, or
managing employees defaulted on a construction contract.
(viii) Any violations of the Contractors'
Contractors State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
excluding alleged violations of federal or state law including the
payment of wages, benefits, apprenticeship requirements, or personal
income tax withholding, or of Federal Insurance Contribution Act
(FICA) withholding requirements settled against any member of the
design-build entity.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) 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 during the five years preceding
submission of a bid pursuant to this section, in which the claim,
settlement, or judgment exceeds fifty thousand dollars ($50,000).
Information shall also be provided concerning any work completed by a
surety during this period.
(xi) In the case of a partnership or other association that is not
a legal entity, a copy of the agreement creating the partnership or
association and specifying that all partners or association members
agree to be fully liable for the performance under the design-build
contract.
(B) 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) The city shall establish a procedure for final selection of
the design-build entity. Selection shall be based on either of the
following criteria:
(A) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Awards shall be made to the
lowest responsible bidder.
(B) The city may use a design-build competition based upon best
value and other criteria set forth in paragraph (2) of subdivision
(d). The design-build competition shall include the following
elements:
(i) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight of
consideration given to all criteria factors: price, technical design
and construction expertise, life-cycle costs over 15 years or more,
skilled labor force availability, and acceptable safety record. Each
of these factors shall be weighted equally.
(ii) Once the evaluation is complete, the top three responsive
bidders shall be ranked sequentially from the most advantageous to
the least.
(iii) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing, to be the most
advantageous.
(iv) Notwithstanding any provision of this code, upon issuance of
a contract award, the city shall publicly announce its award,
identifying the contractor to whom the award is made, along with a
written decision supporting its contract award and stating the basis
of the award. The notice of award shall also include the city's
second and third ranked design-build entities.
(v) For purposes of this paragraph, "skilled labor force
availability" shall be determined by the existence of an agreement
with a registered apprenticeship program, approved by the California
Apprenticeship Council, which has graduated apprentices in each of
the preceding five years. This graduation requirement shall not apply
to programs providing apprenticeship training for any craft that has
been deemed by the Department of Labor and the Department of
Industrial Relations to be an apprenticeable craft in the five years
prior to enactment of this act.
(vi) For purposes of this paragraph, a bidder's "safety record"
shall be deemed "acceptable" if their experience modification rate
for the most recent three-year period is an average of 1.00 or less,
and their average total recordable injury/illness rate and average
lost work rate for the most recent three-year period does not exceed
the applicable statistical standards for its business category, or if
the bidder is a party to an alternative dispute resolution system,
as provided for in Section 3201.5 of the Labor Code.
(e) (1) Any design-build entity that is selected to design and
build a project pursuant to this section shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services and errors and omissions insurance coverage sufficient to
cover all design and architectural services
provided in the contract. This section does
not prohibit a general or engineering contractor from being
designated the lead entity on a design-build entity for the purposes
of purchasing necessary bonding to cover the activities of the
design-build entity.
(2) Any payment or performance bond written for the purposes of
this section shall be written using a bond form developed by the
city.
(f) All subcontractors that were not listed by the design-build
entity in accordance with clause (i) of subparagraph (A) of paragraph
(3) of subdivision (d) shall be awarded by the design-build entity
in accordance with the design-build process set forth by the city in
the design-build package. All subcontractors bidding on contracts
pursuant to this section shall be afforded the protections contained
in Chapter 4 (commencing with Section 4100) of Part 1. The
design-build entity shall do both of the following:
(1) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the city.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this section.
(g) The minimum performance criteria and design standards
established pursuant to paragraph (1) of subdivision (d) shall be
adhered to by the design-build entity. Any deviations from those
standards may only be allowed by written consent of the city.
(h) The city may retain the services of a design professional or
construction project manager, or both, throughout the course of the
project in order to ensure compliance with this section.
(i) Contracts awarded pursuant to this section shall be valid
until the project is completed.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available at law.
(k) (1) If the city elects to award a project pursuant to this
section, retention proceeds withheld by the city from the
design-build entity shall not exceed 5 percent if a performance and
payment bond, issued by an admitted surety insurer, is required in
the solicitation of bids.
(2) In a contract between the design-build entity and the
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the city and the design-build entity. If the design-build
entity provides written notice to any subcontractor who is not a
member of the design-build entity, prior to or at the time the bid is
requested, that a bond may be required and the subcontractor
subsequently is unable or refuses to furnish a bond to the
design-build entity, then the design-build entity may withhold
retention proceeds in excess of the percentage specified in the
contract between the city and the design-build entity from any
payment made by the design-build entity to the subcontractor.
(l) Each city that elects to proceed under this section and uses
the design-build method on a public works project shall submit to the
Legislative Analyst's Office before December 1, 2014, a report
containing a description of each public works project procured
through the design-build process that is completed after January 1,
2011, and before November 1, 2014. The report shall include, but
shall not be limited to, all of the following information:
(1) The type of project.
(2) The gross square footage of the project.
(3) The design-build entity that was awarded the project.
(4) The estimated and actual project costs.
(5) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protests.
(6) An assessment of the prequalification process and criteria.
(7) An assessment of the effect of retaining 5 percent retention
on the project.
(8) A description of the Labor Force Compliance Program and an
assessment of the project impact, where required.
(9) A description of the method used to award the contract. If the
best value method was used, the report shall describe the factors
used to evaluate the bid, including the weighting of each factor and
an assessment of the effectiveness of the methodology.
(10) An assessment of the project impact of "skilled labor force
availability."
(11) An assessment of the most appropriate uses for the
design-build approach.
(m) Any city that elects not to use the authority granted by this
section may submit a report to the Legislative Analyst's Office
explaining why the city elected not to use the design-build method.
(n) On or before January 1, 2015, the Legislative Analyst's Office
shall report to the Legislature on the use of the design-build
method by cities pursuant to this section, including the information
listed in subdivision (l). The report may include recommendations for
modifying or extending this section.
(o) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.
(p) Before January 1, 2011, the project limitation of one million
dollars ($1,000,000), as set forth in subdivision (a), shall not
apply to any city in the Counties of Solano and Yolo, or to the
Cities of Stanton and Victorville.
(q) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 114. Section 20193 of the Public
Contract Code is amended to read:
20193. (a) (1) Notwithstanding any other law and subject to the
limitations of this article, a qualified entity, with approval of its
governing body, may utilize an alternative procedure on bidding on
projects in excess of two million five hundred thousand dollars
($2,500,000).
(2) Only 20 design-build projects shall be authorized under this
article.
(3) A qualified entity may award a project using either the lowest
responsible bidder or by best value.
(4) For purposes of this article, "qualified entity" means an
entity that meets both of the following:
(A) The entity is any of the following:
(i) A city.
(ii) A county.
(iii) A city and county.
(iv) A special district.
(B) The entity operates wastewater facilities, solid waste
management facilities, or water recycling facilities.
(b) (1) For contracts awarded prior to the effective date of
either the regulations adopted by the Department of Industrial
Relations pursuant to subdivision (b) of Section 1771.55 of the Labor
Code or the fees established by the department pursuant to paragraph
(2), if a qualified entity elects to proceed under this section, the
qualified entity shall establish and enforce for design-build
projects a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code, or it shall contract
with a third party to operate a labor compliance program containing
the requirements outlined in Section 1771.5 of the Labor Code. This
requirement shall not apply to any project where the qualified entity
or the design-build entity has entered into any collective
bargaining agreement or agreements that bind all of the contractors
performing work on the projects.
(2) For contracts awarded on or after the effective date of both
the regulations adopted by the Department of Industrial Relations
pursuant to subdivision (b) of Section 1771.55 of the Labor Code and
the fees established by the department pursuant to this paragraph,
the qualified entity shall pay a fee to the department, in an amount
that the department shall establish, and as it may from time to time
amend, sufficient to support the department's costs in ensuring
compliance with and enforcing prevailing wage requirements on the
project, and labor compliance enforcement as set forth in subdivision
(b) of Section 1771.55. All fees collected pursuant to this
subdivision shall be deposited in the State Public Works Enforcement
Fund created by Section 1771.3 of the Labor Code, and shall be used
only for enforcement of prevailing wage requirements on those
projects.
(3) The Department of Industrial Relations may waive the fee set
forth in paragraph (2) if the qualified entity has previously been
granted approval by the director to initiate and operate a labor
compliance program on its projects and requests to continue to
operate that labor compliance program on its projects in lieu of
labor compliance by the department pursuant to subdivision (b) of
Section 1771.55. The fee shall not be waived for the qualified entity
if it contracts with a third party to initiate and enforce labor
compliance programs on its projects.
(c) As used in this section:
(1) "Best value" means a value determined by objective criteria
related to price, features, functions, small business contracting
plans, past performance, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed
pursuant to a design-build contract.
(4) "Project" means the construction of regional and local
wastewater treatment facilities, regional and local solid waste
facilities, or regional and local water recycling facilities.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The qualified entity shall prepare a set of documents
setting forth the scope of the project. The documents may include,
but are not limited to, the size, type, and desired design character
of the project and site, performance specifications covering the
quality of materials, equipment, and workmanship, preliminary plans
or project layouts, or any other information deemed necessary to
describe adequately the qualified entity's needs. The performance
specifications and any plans shall be prepared by a design
professional who is duly licensed and registered in California.
(B) Any architect or engineer retained by the qualified entity to
assist in the development of the project specific documents shall not
be eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared in paragraph (1), the
qualified entity shall prepare a request for proposals that invites
interested parties to submit competitive sealed proposals in the
manner prescribed by the qualified entity. The request for proposals
shall include, but is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the qualified entity to inform interested parties of the
contracting opportunity, to include the methodology that will be
used by the qualified entity to evaluate proposals and specifically
if the contract will be awarded to the lowest responsible bidder.
(ii) Significant factors that the qualified entity reasonably
expects to consider in evaluating proposals, including cost or price
and all nonprice related factors.
(iii) The relative importance of weight assigned to each of the
factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the qualified entity shall specifically
disclose whether all evaluation factors other than cost or price when
combined are:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(C) If the qualified entity chooses to reserve the right to hold
discussions or negotiations with responsive bidders, it shall so
specify in the request for proposal and shall publish separately or
incorporate into the request for proposal applicable rules and
procedures to be observed by the qualified entity to ensure that any
discussions or negotiations are conducted in good faith.
(3) (A) The qualified entity shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the qualified entity. In preparing the questionnaire,
the qualified entity shall consult with the construction industry,
including representatives of the building trades and surety industry.
This questionnaire shall require information including, but not
limited to, all of the following:
(i) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project, as well as a financial statement
that assures the special district that the design-build entity has
the capacity to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) Evidence that establishes that the design-build entity has
the capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance.
(v) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code or the
federal Occupational Safety and Health Act of 1970 (Public Law
91-596), settled against any member of the design-build entity, and
information concerning workers' compensation experience history and
worker safety program.
(vi) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance where an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found to be nonresponsive, or were found by an awarding body not to
be a responsible bidder.
(vii) Any instance where the entity, its owner, officers, or
managing employees defaulted on a construction contract.
(viii) Any violations of the Contractors'
Contractors' State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
excluding alleged violations of federal or state law including the
payment of wages, benefits, apprenticeship requirements, or personal
income tax withholding, or of Federal Insurance Contribution Act
(FICA) withholding requirements settled against any member of the
design-build entity.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) 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 during the five years preceding
submission of a bid pursuant to this section, in which the claim,
settlement, or judgment exceeds fifty thousand dollars ($50,000).
Information shall also be provided concerning any work completed by a
surety during this period.
(xi) In the case of a partnership or other association, that is
not a legal entity, a copy of the agreement creating the partnership
or association and specifying that all partners or association
members agree to be fully liable for the performance under the
design-build contract.
(B) 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) The qualified entity shall establish a procedure for final
selection of the design-build entity. Selection shall be based on
either of the following criteria:
(A) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Awards shall be made to the
lowest responsible bidder.
(B) A qualified entity may use a design-build competition based
upon best value and other criteria set forth in paragraph (2) of
subdivision (d). The design-build competition shall include the
following elements:
(i) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight of
consideration given to all criteria factors; price, technical design
and construction expertise, life-cycle costs over 15 years or more,
skilled labor force availability, and acceptable safety record.
(ii) Once the evaluation is complete, the top three responsive
bidders shall be ranked sequentially from the most advantageous to
the least.
(iii) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing, to be the most
advantageous.
(iv) Notwithstanding any provision of this code, upon issuance of
a contract award, the qualified entity shall publicly announce its
award, identifying the contractor to which the award is made, along
with a written decision supporting its contract award and stating the
basis of the award. The notice of award shall also include the
qualified entity's second and third ranked design-build entities.
(v) For purposes of this paragraph, "skilled labor force
availability" shall be determined by the existence of an agreement
with a registered apprenticeship program, approved by the California
Apprenticeship Council, which has graduated apprentices in each of
the preceding five years. This graduation requirement shall not apply
to programs providing apprenticeship training for any craft that has
been deemed by the Department of Labor and the Department of
Industrial Relations to be an apprenticeable craft in the five years
prior to enactment of this act.
(vi) For purposes of this paragraph, a bidder's "safety record"
shall be deemed "acceptable" if their experience modification rate
for the most recent three-year period is an average of 1.00 or less,
and their average total recordable injury/illness rate and average
lost work rate for the most recent three-year period does not exceed
the applicable statistical standards for its business category, or if
the bidder is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
(e) (1) Any design-build entity that is selected to design and
build a project pursuant to this section shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omissions insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This section does not prohibit a general or engineering contractor
from being designated the lead entity on a design-build entity for
the purposes of purchasing necessary bonding to cover the activities
of the design-build entity.
(2) Any payment or performance bond written for the purposes of
this section shall be written using a bond form developed by the
qualified entity.
(f) All subcontractors that were not listed by the design-build
entity in accordance with clause (i) of subparagraph (A) of paragraph
(3) of subdivision (d) shall be awarded by the design-build entity
in accordance with the design-build process set forth by the
qualified entity in the design-build package. All subcontractors
bidding on contracts pursuant to this section shall be afforded the
protections contained in Chapter 4 (commencing with Section 4100) of
Part 1. The design-build entity shall do both of the following:
(1) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the qualified
entity.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this section.
(g) The minimum performance criteria and design standards
established pursuant to paragraph (1) of subdivision (d) shall be
adhered to by the design-build entity. Any deviations from those
standards may only be allowed by written consent of the qualified
entity.
(h) The qualified entity may retain the services of a design
professional or construction project manager, or both, throughout the
course of the project in order to ensure compliance with this
section.
(i) Contracts awarded pursuant to this section shall be valid
until the project is completed.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available at law.
(k) (1) If the qualified entity elects to award a project pursuant
to this section, retention proceeds withheld by the qualified entity
from the design-build entity shall not exceed 5 percent if a
performance and payment bond, issued by an admitted surety insurer,
is required in the solicitation of bids.
(2) In a contract between the design-build entity and the
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the qualified entity and the design-build entity. If the
design-build entity provides written notice to any subcontractor who
is not a member of the design-build entity, prior to or at the time
the bid is requested, that a bond may be required and the
subcontractor subsequently is unable or refuses to furnish a bond to
the design-build entity, then the design-build entity may withhold
retention proceeds in excess of the percentage specified in the
contract between the qualified entity and the design-build entity
from any payment made by the design-build entity to the
subcontractor.
(l) Each qualified entity that elects to proceed under this
section and uses the design-build method on a public works project
shall do both of the following:
(1) Notify the Legislative Analyst's Office upon initiation of the
project and upon completion of the project.
(2) Submit to the Legislative Analyst's Office, upon completion of
the project, a report containing a description of the public works
project procured through the design-build process pursuant to this
section and completed after January 1, 2009. The report shall
include, but shall not be limited to, all of the following
information:
(A) The type of project.
(B) The gross square footage of the project.
(C) The design-build entity that was awarded the project.
(D) The estimated and actual project costs.
(E) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protests.
(F) An assessment of the prequalification process and criteria.
(G) An assessment of the effect of retaining 5-percent retention
on the project.
(H) A description of the Labor Force Compliance Program and an
assessment of the project impact, where required.
(I) A description of the method used to award the contract. If
best value was the method, the report shall describe the factors used
to evaluate the bid, including the weighting of each factor and an
assessment of the effectiveness of the methodology.
(J) An assessment of the project impact of "skilled labor force
availability."
(K) An assessment of the most appropriate uses for the
design-build approach.
(m) Any qualified entity that elects not to use the authority
granted by this section may submit a report to the Legislative
Analyst's Office explaining why the qualified entity elected to not
use the design-build method.
(n) (1) In order to comply with paragraph (2) of subdivision (a),
the Office of Planning and Research is required to maintain the list
of entities that have applied and are eligible to be qualified for
this authority.
(2) Each entity that is interested in proceeding under the
authority in this section must apply to the Office of Planning and
Research.
(A) The application to proceed must be in writing.
(B) An entity must have complied with the California Environmental
Quality Act review process pursuant to Division 13 (commencing with
Section 21000) of the Public Resources Code prior to its application,
and must include its approved notice of determination or notice of
completion in its application.
(3) The Office of Planning and Research must approve or deny an
application, in writing, within 30 days. The authority to deny an
application shall only be exercised if the conditions set forth in
either or both paragraph (2) of subdivision (a) and subparagraph (B)
of paragraph (2) of this subdivision have not been satisfied.
(4) An entity utilizing this section must, after it determines it
no longer is interested in using this authority, notify the Office of
Planning and Research in writing within 30 days of its
determination. Upon notification, the Office of Planning and Research
may contact any previous applicants, denied pursuant to paragraph
(2) of subdivision (a), to inform them of the availability to proceed
under this section.
(o) The Legislative Analyst shall report to the Legislature on the
use of the design-build method by qualified entities pursuant to
this section, including the information listed in subdivision (l).
The report may include recommendations for modifying or extending
this section, and shall be submitted on either of the following
dates, whichever occurs first:
(1) Within one year of the completion of the 20 projects, if the
projects are completed prior to January 1, 2019.
(2) No later than January 1, 2020.
SEC. 115. Section 20209.7 of the
Public Contract Code is amended to read:
20209.7. Design-build projects shall progress in a three-step
process, as follows:
(a) The transit operator shall prepare a set of documents setting
forth the scope of the project. The documents shall include, but are
not limited to, the size, type, and desired design character of the
buildings, transit facilities, and site, performance specifications
covering the quality of materials, equipment, and workmanship,
preliminary plans or building layouts, or any other information
deemed necessary to describe adequately the transit operator's needs.
The performance specifications and any plans shall be prepared by a
design professional duly licensed or registered in California.
(b) Any architectural or engineering firm or individual retained
by the transit operator to assist in the development criteria or
preparation of the request for proposal (RFP) is not eligible to
participate in the competition for the design-build entity.
(c) (1) For contracts awarded prior to the effective date of
either the regulations adopted by the Department of Industrial
Relations pursuant to subdivision (b) of Section 1771.55 of the Labor
Code or the fee established by the department pursuant to paragraph
(2), if the transit operator does not already have a labor compliance
program, as defined in Section 1771.5 of the Labor Code, the transit
operator shall establish and enforce a labor compliance program for
the design-build contract containing the requirements outlined in
Section 1771.5 of the Labor Code or shall contract with a third party
to operate this labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This requirement
applies only to the design-build contract and does not apply to
projects where the transit operator or the design-build entity has
entered into a collective bargaining agreement that binds all of the
contractors performing work on the project, or to any other project
of the transit operator that is not design-build.
(2) For contracts awarded on or after the effective date of both
the regulations adopted by the Department of Industrial Relations
pursuant to subdivision (b) of Section 1771.55 of the Labor Code and
the fee established by the department pursuant to this paragraph, the
transit operator shall pay a fee to the department, in an amount
that the department shall establish, and as it may from time to time
amend, sufficient to support the department's costs in ensuring
compliance with and enforcing prevailing wage requirements on the
project, and labor compliance enforcement as set forth in subdivision
(b) of Section 1771.55 of the Labor Code. All fees collected
pursuant to this subdivision shall be deposited in the State Public
Works Enforcement Fund created by Section 1771.3 of the Labor Code,
and shall be used only for enforcement of prevailing wage
requirements on those projects.
(3) The Department of Industrial Relations may waive the fee set
forth in paragraph (2) if the transit operator has previously been
granted approval by the director to initiate and operate a labor
compliance program on its projects and requests to continue to
operate that labor compliance program on its projects in lieu of
labor compliance by the department pursuant to subdivision (b) of
Section 1771.55 of the Labor Code. The fee shall not be waived for
the transit operator if it contracts with a third party to initiate
and enforce labor compliance programs on its projects.
(d) (1) Each RFP shall identify the basic scope and needs of the
project or contract, the expected cost range, and other information
deemed necessary by the contracting agency to inform interested
parties of the contracting opportunity.
(2) Each RFP shall invite interested parties to submit competitive
sealed proposals in the manner prescribed by the contracting agency.
(3) Each RFP shall include a section identifying and describing:
(A) All significant factors that the agency reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice-related factors.
(B) The methodology and rating or weighting process that will be
used by the agency in evaluating competitive proposals and
specifically whether proposals will be rated according to numeric or
qualitative values.
(C) The relative importance or weight assigned to each of the
factors identified in the RFP. If a nonweighted system is used, the
agency shall specifically disclose whether all evaluation factors
other than cost or price, when combined, are any of the following:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(D) If the contracting agency wishes to reserve the right to hold
discussions or negotiations with offerors, it shall specify the same
in the RFP and shall publish separately or incorporate into the RFP
applicable rules and procedures to be observed by the agency to
ensure that any discussions or negotiations are conducted in a fair
and impartial manner.
(e) (1) The transit operator shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of Industrial Relations. The standardized
questionnaire shall not require prospective bidders to disclose any
violations of Chapter 1 (commencing with Section 1720) of Part 7 of
Division 2 of the Labor Code committed prior to January 1, 1998, if
the violation was based on a subcontractor's failure to comply with
these provisions and the bidder had no knowledge of the subcontractor'
s violations and the bidder complied with the conditions set forth in
subdivision (b) of Section 1775 of the Labor Code. In preparing the
questionnaire, the director shall consult with the construction
industry, building trades, transit operators, and other affected
parties. This questionnaire shall require information relevant to the
architecture or engineering firm that will be the lead on the
design-build project. The questionnaire shall include, but is not
limited to, all of the following:
(A) A listing of all the contractors that are part of the
design-build entity.
(B) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete, projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project.
(C) The licenses, registrations, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(D) Evidence that establishes that the design-build entity has the
capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance, as well as a
financial statement that assures the transit operator that the
design-build entity has the capacity to complete the project.
(E) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code or the
federal Occupational Safety and Health Act of 1970 (P.L. 91-596),
settled against any member of the design-build entity, and
information concerning a contractor member's workers' compensation
experience history and worker safety program.
(F) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance where an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found by an awarding body not to be a responsible bidder.
(G) Any instance where the entity, its owner, officers, or
managing employees defaulted on a construction contract.
(H) Any violations of the Contractors'
Contractors State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
excluding alleged violations of federal or state law, including the
payment of wages, benefits, apprenticeship requirements, or personal
income tax withholding, or of Federal Insurance Contribution Act
(FICA) withholding requirements settled against any member of the
design-build entity.
(I) Information concerning the bankruptcy or receivership of any
member of the entity, and information concerning all legal claims,
disputes, or lawsuits arising from any construction project of any
member of the entity during the past three years, including
information concerning any work completed by a surety.
(J) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members who will participate as
subcontractors in the design-build contract.
(K) 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 during the five-year period
immediately preceding submission of a bid pursuant to this section,
in which the claim, settlement, or judgment exceeds fifty thousand
dollars ($50,000). Information shall also be provided concerning any
work completed by a surety during this period.
(L) In the case of a partnership or other association that is not
a legal entity, a copy of the agreement creating the partnership or
association and specifying that all partners or association members
agree to be liable for full performance under the design-build
contract.
(2) 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.
(f) The transit operator shall establish a procedure for final
selection of the design-build entity. Selection shall be subject to
the following conditions:
(1) In no case shall the transit operator award a contract to a
design-build entity pursuant to this article for a capital
maintenance or capacity-enhancing rail project unless that project
exceeds twenty-five million dollars ($25,000,000) in cost.
(2) For nonrail transit projects that exceed two million five
hundred thousand dollars ($2,500,000), the transit operator may award
the project to the lowest responsible bidder or by using the best
value method.
(3) For the acquisition and installation of technology
applications or surveillance equipment designed to enhance safety,
disaster preparedness, and homeland security efforts, there shall be
no cost threshold and the transit operator may award the contract to
the lowest responsible bidder or by using the best value method.
(g) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.
SEC. 116. Section 20688.6 of the Public
Contract Code is amended to read:
20688.6. (a) (1) Notwithstanding any other law, an agency, with
approval of its duly constituted board in a public hearing, may
utilize an alternative procedure for bidding on projects in the
community in excess of one million dollars ($1,000,000) and may award
the project using either the lowest responsible bidder or by best
value.
(2) Only 10 design-build projects shall be authorized under this
section.
(b) (1) It is the intent of the Legislature to enable entities as
provided in Part 1 (commencing with Section 33000) of Division 24 of
the Health and Safety Code to utilize design-build for those
infrastructure improvements authorized in Sections 33421 and 33445 of
the Health and Safety Code and subject to the limitations on that
authority described in Section 33421.1 of the Health and Safety Code.
(2) The Legislature also finds and declares that utilizing a
design-build contract requires a clear understanding of the roles and
responsibilities of each participant in the design-build process.
(3) (A) For contracts awarded prior to the effective date of
either the regulations adopted by the Department of Industrial
Relations pursuant to subdivision (b) of Section 1771.55 of the Labor
Code or the fees established by the department pursuant to
subparagraph (B), if the board elects to proceed under this section,
the board shall establish and enforce for design-build projects a
labor compliance program containing the requirements outlined in
Section 1771.5 of the Labor Code, or it shall contract with a third
party to operate a labor compliance program containing the
requirements outlined in Section 1771.5 of the Labor Code. This
requirement shall not apply to any project where the agency or the
design-build entity has entered into any collective bargaining
agreement or agreements that bind all of the contractors performing
work on the projects.
(B) For contracts awarded on or after the effective date of both
the regulations adopted by the Department of Industrial Relations
pursuant to subdivision (b) of Section 1771.55 of the Labor Code and
the fees established by the department pursuant to this subparagraph,
if the board elects to proceed under this section it shall pay a fee
to the department, in an amount that the department shall establish,
and as it may from time to time amend, sufficient to support the
department's costs in ensuring compliance with and enforcing
prevailing wage requirements on the project, and labor compliance
enforcement as set forth in subdivision (b) of Section 1771.55 of the
Labor Code. All fees collected pursuant to this subdivision shall be
deposited in the State Public Works Enforcement Fund, created by
Section 1771.3 of the Labor Code, and shall be used only for
enforcement of prevailing wage requirements on those projects.
(C) The Department of Industrial Relations may waive the fee set
forth in subdivision (b) for a board that has previously been granted
approval by the director to initiate and operate a labor compliance
program on its projects, and that requests to continue to operate the
labor compliance program on its projects in lieu of labor compliance
by the department pursuant to subdivision (b) of Section 1771.55.
This fee shall not be waived for a board that contracts with a third
party to initiate and enforce labor compliance programs on the board'
s projects.
(c) As used in this section:
(1) "Best value" means a value determined by objective criteria
related to price, features, functions, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed
pursuant to a design-build contract.
(4) "Project" means those infrastructure improvements authorized
in Sections 33421 and 33455 of the Health and Safety Code and subject
to the limitations and conditions on that authority described in
Article 10 (commencing with Section 33420) and Article 11 (commencing
with Section 33430) of Chapter 4 of Part 1 of Division 24 of the
Health and Safety Code.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The agency shall prepare a set of documents setting forth
the scope of the project. The documents may include, but are not
limited to, the size, type, and desired design character of the
public improvement, performance specifications covering the quality
of materials, equipment, and workmanship, preliminary plans or
building layouts, or any other information deemed necessary to
describe adequately the agency's needs. The performance
specifications and any plans shall be prepared by a design
professional who is duly licensed and registered in California.
(B) Any architect or engineer retained by the agency to assist in
the development of the project specific documents shall not be
eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared as described in paragraph
(1), the agency shall prepare a request for proposals that invites
interested parties to submit competitive sealed proposals in the
manner prescribed by the agency. The request for proposals shall
include, but is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the agency to inform interested parties of the
contracting opportunity, to include the methodology that will be used
by the agency to evaluate proposals and specifically if the contract
will be awarded to the lowest responsible bidder.
(ii) Significant factors that the agency reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice-related factors.
(iii) The relative importance of the weight assigned to each of
the factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the agency shall specifically disclose
whether all evaluation factors other than cost or price when combined
are:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(C) If the agency chooses to reserve the right to hold discussions
or negotiations with responsive bidders, it shall so specify in the
request for proposal and shall publish separately or incorporate into
the request for proposal applicable rules and procedures to be
observed by the agency to ensure that any discussions or negotiations
are conducted in good faith.
(3) (A) The agency shall establish a procedure to prequalify
design-build entities using a standard questionnaire developed by the
agency. In preparing the questionnaire, the agency shall consult
with the construction industry, including representatives of the
building trades and surety industry. This questionnaire shall require
information including, but not limited to, all of the following:
(i) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete, projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project, as well as a financial statement
that assures the agency that the design-build entity has the capacity
to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) Evidence that establishes that the design-build entity has
the capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance.
(v) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code, or
the federal Occupational Safety and Health Act of 1970 (P.L. 91-596),
settled against any member of the design-build entity, and
information concerning workers' compensation experience history and
worker safety program.
(vi) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance in which an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found to be nonresponsive, or were found by an awarding body not to
be a responsible bidder.
(vii) Any instance in which the entity, or its owners, officers,
or managing employees, defaulted on a construction contract.
(viii) Any violations of the Contractors'
Contractors State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
including alleged violations of federal or state law including the
payment of wages, benefits, apprenticeship requirements, or personal
income tax withholding, or of Federal Insurance Contributions Act
(FICA) withholding requirements settled against any member of the
design-build entity.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) 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 during the five years preceding
submission of a bid pursuant to this section, in which the claim,
settlement, or judgment exceeds fifty thousand dollars ($50,000).
Information shall also be provided concerning any work completed by a
surety during this period.
(xi) In the case of a partnership, joint venture, or an
association that is not a legal entity, a copy of the agreement
creating the partnership or association and specifying that all
general partners, joint venturers, or association members agree to be
fully liable for the performance under the design-build contract.
(B) 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) The agency shall establish a procedure for final selection of
the design-build entity. Selection shall be based on either of the
following criteria:
(A) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Awards shall be made to the
lowest responsible bidder.
(B) An agency may use a design-build competition based upon best
value and other criteria set forth in paragraph (2). The design-build
competition shall include the following elements:
(i) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight of
consideration given to all criteria factors: price, technical design
and construction expertise, life-cycle costs over 15 years or more,
skilled labor force availability, and acceptable safety record.
(ii) Once the evaluation is complete, the top three responsive
bidders shall be ranked sequentially from the most advantageous to
the least.
(iii) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing, to be the most
advantageous.
(iv) Notwithstanding any provision of this code, upon issuance of
a contract award, the agency shall publicly announce its award,
identifying the contractor to whom the award is made, along with a
written decision supporting its contract award and stating the basis
of the award. The notice of award shall also include the agency's
second- and third-ranked design-build entities.
(v) For purposes of this paragraph, skilled labor force
availability shall be determined by the existence of an agreement
with a registered apprenticeship program, approved by the California
Apprenticeship Council, which has graduated apprentices in each of
the preceding five years. This graduation requirement shall not apply
to programs providing apprenticeship training for any craft that has
been deemed by the Department of Labor and the Department of
Industrial Relations to be an apprenticeable craft in the five years
prior to enactment of this act.
(vi) For purposes of this paragraph, a bidder's safety record
shall be deemed acceptable if its experience modification rate for
the most recent three-year period is an average of 1.00 or less, and
its average total recordable injury/illness rate and average lost
work rate for the most recent three-year period does not exceed the
applicable statistical standards for its business category or if the
bidder is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
(e) (1) Any design-build entity that is selected to design and
build a project pursuant to this section shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omission insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This section does not prohibit a general or engineering contractor
from being designated the lead entity on a design-build entity for
the purposes of purchasing necessary bonding to cover the activities
of the design-build entity.
(2) Any payment or performance bond written for the purposes of
this section shall be written using a bond form developed by the
agency.
(f) All subcontractors that were not listed by the design-build
entity in accordance with clause (i) of subparagraph (A) of paragraph
(3) of subdivision (d) shall be awarded by the design-build entity
in accordance with the design-build process set forth by the agency
in the design-build package. All subcontractors bidding on contracts
pursuant to this section shall be afforded the protections contained
in Chapter 4 (commencing with Section 4100) of Part 1. The
design-build entity shall do both of the following:
(1) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the agency.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this section.
(g) The minimum performance criteria and design standards
established pursuant to paragraph (1) of subdivision (d) shall be
adhered to by the design-build entity. Any deviations from those
standards may only be allowed by written consent of the agency.
(h) The agency may retain the services of a design professional or
construction project manager, or both, throughout the course of the
project in order to ensure compliance with this section.
(i) Contracts awarded pursuant to this section shall be valid
until the project is completed.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available at law.
(k) (1) If the agency elects to award a project pursuant to this
section, retention proceeds withheld by the agency from the
design-build entity shall not exceed 5 percent if a performance and
payment bond, issued by an admitted surety insurer, is required in
the solicitation of bids.
(2) In a contract between the design-build entity and the
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld shall not exceed the percentage specified in the contract
between the agency and the design-build entity. If the design-build
entity provides written notice to any subcontractor who is not a
member of the design-build entity, prior to or at the time the bid is
requested, that a bond may be required and the subcontractor
subsequently is unable or refuses to furnish a bond to the
design-build entity, then the design-build entity may withhold
retention proceeds in excess of the percentage specified in the
contract between the agency and the design-build entity from any
payment made by the design-build entity to the subcontractor.
(l) Each agency that elects to proceed under this section and uses
the design-build method on a public works project shall submit to
the Legislative Analyst's Office before December 1, 2014, a report
containing a description of each public works project procured
through the design-build process after January 1, 2010, and before
November 1, 2014. The report shall include, but shall not be limited
to, all of the following information:
(1) The type of project.
(2) The gross square footage of the project.
(3) The design-build entity that was awarded the project.
(4) Where appropriate, the estimated and actual length of time to
complete the project.
(5) The estimated and actual project costs.
(6) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protests.
(7) An assessment of the prequalification process and criteria.
(8) An assessment of the effect of retaining 5-percent retention
on the project.
(9) A description of the labor force compliance program and an
assessment of the project impact, where required.
(10) A description of the method used to award the contract. If
best value was the method, the report shall describe the factors used
to evaluate the bid, including the weighting of each factor and an
assessment of the effectiveness of the methodology.
(11) An assessment of the project impact of skilled labor force
availability.
(12) An assessment of the design-build dollar limits on agency
projects. This assessment shall include projects where the agency
wanted to use design-build and was precluded by the dollar
limitation. This assessment shall also include projects where the
best value method was not used due to dollar limitations.
(13) An assessment of the most appropriate uses for the
design-build approach.
(m) (1) In order to comply with paragraph (2) of subdivision (a),
the State Public Works Board is required to maintain the list of
agencies that have applied and are eligible to be qualified for this
authority.
(2) Each agency that is interested in proceeding under the
authority in this section must apply to the State Public Works Board.
The application to proceed shall be in writing and contain such
information that the State Public Works Board may require.
(3) The State Public Works Board shall approve or deny an
application, in writing, within 90 days of the submission of a
complete application. The authority to deny an application shall only
be exercised if the condition set forth in paragraph (2) of
subdivision (a) has been satisfied.
(4) An agency that has applied for this authorization shall, after
it determines it no longer is interested in using this authority,
notify the State Public Works Board in writing within 30 days of its
determination. Upon notification, the State Public Works Board may
contact any previous applicants, denied pursuant to paragraph (2) of
subdivision (a), to inform them of the availability to proceed under
this section.
(5) The State Public Works Board may authorize no more that 10
projects. The board shall not authorize or approve more than two
projects for any one eligible redevelopment agency that submits a
completed application.
(6) The State Public Works Board shall notify the Legislative
Analyst's Office when 10 projects have been approved.
(n) On or before January 1, 2015, the Legislative Analyst shall
report to the Legislature on the use of the design-build method by
agencies pursuant to this section, including the information listed
in subdivision (l). The report may include recommendations for
modifying or extending this section.
(o) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.
(p) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 117. Section 20919.4 of the Public
Contract Code is amended to read:
20919.4. Bidding for job order contracts shall progress as
follows:
(a) (1) The unified school district shall prepare a set of
documents for each job order contract. The documents shall include a
catalog of construction tasks and preestablished unit prices, job
order contract technical specifications, and any other information
deemed necessary to describe adequately the unified school district's
needs.
(2) Any architect, engineer, or consultant retained by the unified
school district to assist in the development of the job order
contract documents shall not be eligible to participate in the
preparation of a bid with any job order contractor.
(b) Based on the documents prepared under subdivision (a), the
unified school district shall prepare a request for bid that invites
prequalified job order contractors to submit competitive sealed bids
in the manner prescribed by the unified school district.
(1) The prequalified job order contractors shall, as determined by
the unified school district, bid one or more adjustment factors to
the unit prices listed in the catalog of construction tasks based on
the job order contract technical specifications. Awards shall be made
to the lowest responsible prequalified bidder.
(2) The unified school district may award multiple job order
contracts. Each job order contract shall be awarded to the lowest
responsive and responsible prequalified bidder.
(3) The request for bids may encourage the participation of local
construction firms and the use of local subcontractors.
(c) (1) The unified school district shall establish a procedure to
prequalify job order contractors using a standard questionnaire
prepared by the Department of Industrial Relations under Section
20101. This questionnaire shall require information including, but
not limited to, all of the following:
(A) If the job order contractor is a partnership, limited
partnership, or other association, a listing of all of the partners
or association members known at the time of bid submission who will
participate in the job order contract.
(B) Evidence that the members of the job order contractor have the
capacity to complete projects of similar size, scope, or complexity,
and that proposed key personnel have sufficient experience and
training to competently manage the construction of the project, as
well as a financial statement that assures the unified school
district that the job order contractor has the capacity to complete
the project.
(C) The licenses, registration, and credentials required to
perform construction, including, but not limited to, information on
the revocation or suspension of any license, credential, or
registration.
(D) Evidence that establishes that the job order contractor has
the capacity to obtain all required payment and performance bonding
and liability insurance.
(E) Information concerning workers' compensation experience
history, worker safety programs, and apprenticeship programs.
(i) An acceptable safety record. A contractor's safety record
shall be deemed acceptable if its experience modification rate for
the most recent three-year period is an average of 1.00 or less, and
its average total recordable injury/illness rate and average lost
work rate for the most recent three-year period do not exceed the
applicable statistical standards for its business category or if the
contractor is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
(ii) Skilled labor force availability as determined by the
existence of an agreement with a registered apprenticeship program,
approved by the California Apprenticeship Council, that has graduated
apprentices in each of the preceding five years. This graduation
training for any craft that was first deemed by the Department of
Labor and the Department of Industrial Relations to be an
apprenticeable apprenticable craft within the
five years prior to the effective date of this article.
(F) A full disclosure regarding all of the following that are
applicable:
(i) Any serious or willful violation of Part 1 (commencing with
Section 6300) of Division 5 of the Labor Code or the federal
Occupational Safety and Health Act of 1970 (Public Law 91-596),
settled against any member of the job order contractor.
(ii) Any debarment, disqualification, or removal from a federal,
state, or local government public works project.
(iii) Any instance where the job order contractor, or its owners,
officers, or managing employees submitted a bid on a public works
project and were found to be nonresponsive, or were found by an
awarding body not to be a responsible bidder.
(iv) Any instance where the job order contractor, or its owners,
officers, or managing employees defaulted on a construction contract.
(v) Any violations of the Contractors'
Contractors State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
excluding alleged violations of federal or state law regarding the
payment of wages, benefits, apprenticeship requirements, or personal
income tax withholding, or of Federal Insurance Contribution Act
(FICA) withholding requirements settled against any member of the job
order contractor.
(vi) Any bankruptcy or receivership of any member of the job order
contractor, including, but not limited to, information concerning
any work completed by a surety.
(vii) Any settled adverse claims, disputes, or lawsuits between
the owner of a public works project and any member of the job order
contractor during the five years preceding submission of a bid under
this article, in which the claim, settlement, or judgment exceeds
fifty thousand dollars ($50,000). Information shall also be provided
concerning any work completed by a surety during this period.
(G) In the case of a partnership or any association that is not a
legal entity, a copy of the agreement creating the partnership or
association and specifying that all partners or association members
agree to be fully liable for the performance under the job order
contract.
(2) The information required under 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 under 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.
SEC. 118. Section 22010 of the Public
Contract Code is amended to read:
22010. There is hereby created the California Uniform
Construction Cost Accounting Commission. The commission is comprised
of 14 members.
(a) Thirteen of the members shall be appointed by the Controller
as follows:
(1) Two members who shall each have at least 10 years of
experience with, or providing professional services to, a general
contracting firm engaged, during that period, in public works
construction in California.
(2) Two members who shall each have at least 10 years of
experience with, or providing professional services to, a firm or
firms engaged, during that period, in subcontracting for public works
construction in California.
(3) Two members who shall each be a member in good standing of, or
have provided professional services to, an organized labor union
with at least 10 years of experience in public works construction in
California.
(4) Seven members who shall each be experienced in, and
knowledgeable of, public works construction under contracts let by
public agencies; two each representing cities, counties,
respectively, and two representing school districts (one with an
average daily attendance over 25,000 and one with an average daily
attendance under 25,000), and one member representing a special
district. At least one of the two county representatives shall be a
county auditor or his or her designee.
(b) The member of the Contractors'
Contractors State License Board who is a general
engineering General Engineering contractor as
that term is defined in Section 7056 of the Business and Professions
Code shall serve as an ex officio voting member.
SEC. 119. Section 327 of the Public
Utilities Code is amended to read:
327. (a) The electrical corporations and gas corporations that
participate in the California Alternate Rates for Energy (CARE)
program, as established pursuant to Section 739.1, shall administer
low-income energy efficiency and rate assistance programs described
in Sections 382, 739.1, 739.2, and 2790, subject to commission
oversight. In administering the programs described in Section 2790,
the electrical corporations and gas corporations, to the extent
practicable, shall do all of the following:
(1) Continue to leverage funds collected to fund the program
described in subdivision (a) with funds available from state and
federal sources.
(2) Work with state and local agencies, community-based
organizations, and other entities to ensure efficient and effective
delivery of programs.
(3) Encourage local employment and job skill development.
(4) Maximize the participation of eligible participants.
(5) Work to reduce consumers electric and gas consumption, and
bills.
(6) For electrical corporations, target energy efficiency and
solar programs to upper-tier and multifamily customers in a manner
that will result in long-term permanent reductions in electricity
usage at the dwelling units, and develop programs that specifically
target nonprofit affordable housing providers, including programs
that promote weatherization of existing dwelling units and
replacement of inefficient appliances.
(7) For electrical corporations and for public utilities that are
both electrical corporations and gas corporations, allocate the costs
of the CARE program on an equal cents per kilowatthour or equal
cents per therm basis to all classes of customers that were subject
to the surcharge that funded the program on January 1, 2008.
(b) If the commission requires low-income energy efficiency
programs to be subject to competitive bidding, the electrical and gas
corporations described in subdivision (a), as part of their bid
evaluation criteria, shall consider both cost-of-service criteria and
quality-of-service criteria. The bidding criteria, at a minimum,
shall recognize all of the following factors:
(1) The bidder's experience in delivering programs and services,
including, but not limited to, weatherization, appliance repair and
maintenance, energy education, outreach and enrollment services, and
bill payment assistance programs to targeted communities.
(2) The bidder's knowledge of the targeted communities.
(3) The bidder's ability to reach targeted communities.
(4) The bidder's ability to utilize and employ people from the
local area.
(5) The bidder's general contractor's license and evidence of good
standing with the Contractors' Contractors
State License Board.
(6) The bidder's performance quality as verified by the funding
source.
(7) The bidder's financial stability.
(8) The bidder's ability to provide local job training.
(9) Other attributes that benefit local communities.
(c) Notwithstanding subdivision (b), the commission may modify the
bid criteria based upon public input from a variety of sources,
including representatives from low-income communities and the program
administrators identified in subdivision (b), in order to ensure the
effective and efficient delivery of high quality low-income energy
efficiency programs.
SEC. 120. Section 143 of the Streets and
Highways Code is amended to read:
143. (a) (1) "Best value" means a value determined by objective
criteria, including, but not limited to, price, features, functions,
life-cycle costs, and other criteria deemed appropriate by the
department or the regional transportation agency.
(2) "Contracting entity or lessee" means a public or private
entity, or consortia thereof, that has entered into a comprehensive
development lease agreement with the department or a regional
transportation agency for a transportation project pursuant to this
section.
(3) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(4) "Regional transportation agency" means any of the following:
(A) A transportation planning agency as defined in Section 29532
or 29532.1 of the Government Code.
(B) A county transportation commission as defined in Section
130050, 130050.1, or 130050.2 of the Public Utilities Code.
(C) Any other local or regional transportation entity that is
designated by statute as a regional transportation agency.
(D) A joint exercise of powers authority as defined in Chapter 5
(commencing with Section 6500) of Division 7 of Title 1 of the
Government Code, with the consent of a transportation planning agency
or a county transportation commission for the jurisdiction in which
the transportation project will be developed.
(5) "Public Infrastructure Advisory Commission" means a unit or
auxiliary organization established by the Business, Transportation
and Housing Agency that advises the department and regional
transportation agencies in developing transportation projects through
performance-based infrastructure partnerships.
(6) "Transportation project" means one or more of the following:
planning, design, development, finance, construction, reconstruction,
rehabilitation, improvement, acquisition, lease, operation, or
maintenance of highway, public street, rail, or related facilities
supplemental to existing facilities currently owned and operated by
the department or regional transportation agencies that is consistent
with the requirements of subdivision (c).
(b) (1) The Public Infrastructure Advisory Commission shall do all
of the following:
(A) Identify transportation project opportunities throughout the
state.
(B) Research and document similar transportation projects
throughout the state, nationally, and internationally, and further
identify and evaluate lessons learned from these projects.
(C) Assemble and make available to the department or regional
transportation agencies a library of information, precedent,
research, and analysis concerning infrastructure partnerships and
related types of public-private transactions for public
infrastructure.
(D) Advise the department and regional transportation agencies,
upon request, regarding infrastructure partnership suitability and
best practices.
(E) Provide, upon request, procurement-related services to the
department and regional transportation agencies for infrastructure
partnership.
(2) The Public Infrastructure Advisory Commission may charge a fee
to the department and regional transportation agencies for the
services described in subparagraphs (D) and (E) of paragraph (1), the
details of which shall be articulated in an agreement entered into
between the Public Infrastructure Advisory Commission and the
department or the regional transportation agency.
(c) (1) Notwithstanding any other provision of law, only the
department, in cooperation with regional transportation agencies, and
regional transportation agencies, may solicit proposals, accept
unsolicited proposals, negotiate, and enter into comprehensive
development lease agreements with public or private entities, or
consortia thereof, for transportation projects.
(2) Projects proposed pursuant to this section and associated
lease agreements shall be submitted to the California Transportation
Commission. The commission, at a regularly scheduled public hearing,
shall select the candidate projects from projects nominated by the
department or a regional transportation agency after reviewing the
nominations for consistency with paragraphs (3) and (4). Approved
projects may proceed with the process described in paragraph (5).
(3) The projects authorized pursuant to this section shall be
primarily designed to achieve the following performance objectives:
(A) Improve mobility by improving travel times or reducing the
number of vehicle hours of delay in the affected corridor.
(B) Improve the operation or safety of the affected corridor.
(C) Provide quantifiable air quality benefits for the region in
which the project is located.
(4) In addition to meeting the requirements of paragraph (3), the
projects authorized pursuant to this section shall address a known
forecast demand, as determined by the department or regional
transportation agency.
(5) At least 60 days prior to executing a final lease agreement
authorized pursuant to this section, the department or regional
transportation agency shall submit the agreement to the Legislature
and the Public Infrastructure Advisory Commission for review. Prior
to submitting a lease agreement to the Legislature and the Public
Infrastructure Advisory Commission, the department or regional
transportation agency shall conduct at least one public hearing at a
location at or near the proposed facility for purposes of receiving
public comment on the lease agreement. Public comments made during
this hearing shall be submitted to the Legislature and the Public
Infrastructure Advisory Commission with the lease agreement. The
Secretary of Business, Transportation and Housing or the Chairperson
of the Senate or Assembly fiscal committees or policy committees with
jurisdiction over transportation matters may, by written
notification to the department or regional transportation agency,
provide any comments about the proposed agreement within the 60-day
period prior to the execution of the final agreement. The department
or regional transportation agency shall consider those comments prior
to executing a final agreement and shall retain the discretion for
executing the final lease agreement.
(d) For the purpose of facilitating those projects, the agreements
between the parties may include provisions for the lease of
rights-of-way in, and airspace over or under, highways, public
streets, rail, or related facilities for the granting of necessary
easements, and for the issuance of permits or other authorizations to
enable the construction of transportation projects. Facilities
subject to an agreement under this section shall, at all times, be
owned by the department or the regional transportation agency, as
appropriate. For department projects, the commission shall certify
the department's determination of the useful life of the project in
establishing the lease agreement terms. In consideration therefor,
the agreement shall provide for complete reversion of the leased
facility, together with the right to collect tolls and user fees, to
the department or regional transportation agency, at the expiration
of the lease at no charge to the department or regional
transportation agency. At time of the reversion, the facility shall
be delivered to the department or regional transportation agency, as
applicable, in a condition that meets the performance and maintenance
standards established by the department or regional transportation
agency and that is free of any encumbrance, lien, or other claims.
(e) Agreements between the department or regional transportation
agency and the contracting entity or lessee shall authorize the
contracting entity or lessee to use a design-build method of
procurement for transportation projects, subject to the requirements
for utilizing such a method contained in Chapter 6.5 (commencing with
Section 6800) of Part 1 of Division 2 of the Public Contract Code,
other than Sections 6802, 6803, and 6813 of that code, if those
provisions are enacted by the Legislature during the 2009-10 Regular
Session, or a 2009-10 extraordinary session.
(f) (1) (A) Notwithstanding any other provision of this chapter,
for projects on the state highway system, the department is the
responsible agency for the performance of project development
services, including performance specifications, preliminary
engineering, prebid services, the preparation of project reports and
environmental documents, and construction inspection services. The
department is also the responsible agency for the preparation of
documents that may include, but need not be limited to, the size,
type, and desired design character of the project, performance
specifications covering the quality of materials, equipment, and
workmanship, preliminary plans, and any other information deemed
necessary to describe adequately the needs of the department or
regional transportation agency.
(B) The department may use department employees or consultants to
perform the services described in subparagraph (A), consistent with
Article XXII of the California Constitution. Department resources,
including personnel
requirements, necessary for the performance of those services shall
be included in the department's capital outlay support program for
workload purposes in the annual Budget Act.
(2) The department or a regional transportation agency may
exercise any power possessed by it with respect to transportation
projects to facilitate the transportation projects pursuant to this
section. The department, regional transportation agency, and other
state or local agencies may provide services to the contracting
entity or lessee for which the public entity is reimbursed,
including, but not limited to, planning, environmental planning,
environmental certification, environmental review, preliminary
design, design, right-of-way acquisition, construction, maintenance,
and policing of these transportation projects. The department or
regional transportation agency, as applicable, shall regularly
inspect the facility and require the contracting entity or lessee to
maintain and operate the facility according to adopted standards.
Except as may otherwise be set forth in the lease agreement, the
contracting entity or lessee shall be responsible for all costs due
to development, maintenance, repair, rehabilitation, and
reconstruction, and operating costs.
(g) (1) In selecting private entities with which to enter into
these agreements, notwithstanding any other provision of law, the
department and regional transportation agencies may utilize, but are
not limited to utilizing, one or more of the following procurement
approaches:
(A) Solicitations of proposals for defined projects and calls for
project proposals within defined parameters.
(B) Prequalification and short-listing of proposers prior to final
evaluation of proposals.
(C) Final evaluation of proposals based on qualifications and best
value. The California Transportation Commission shall develop and
adopt criteria for making that evaluation prior to evaluation of a
proposal.
(D) Negotiations with proposers prior to award.
(E) Acceptance of unsolicited proposals, with issuance of requests
for competing proposals. Neither the department nor a regional
transportation agency may award a contract to an unsolicited bidder
without receiving at least one other responsible bid.
(2) When evaluating a proposal submitted by the contracting entity
or lessee, the department or the regional transportation agency may
award a contract on the basis of the lowest bid or best value.
(h) The contracting entity or lessee shall have the following
qualifications:
(1) Evidence that the members of the contracting entity or lessee
have completed, or have demonstrated the experience, competency,
capability, and capacity to complete, a project of similar size,
scope, or complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the
design and construction of the project, and a financial statement
that ensures that the contracting entity or lessee has the capacity
to complete the project.
(2) The licenses, registration, and credentials required to design
and construct the project, including, but not limited to,
information on the revocation or suspension of any license,
credential, or registration.
(3) Evidence that establishes that members of the contracting
entity or lessee have the capacity to obtain all required payment and
performance bonding, liability insurance, and errors and omissions
insurance.
(4) Evidence that the contracting entity or lessee has workers'
compensation experience, history, and a worker safety program of
members of the contracting entity or lessee that is acceptable to the
department or regional transportation agency.
(5) A full disclosure regarding all of the following with respect
to each member of the contracting entity or lessee during the past
five years:
(A) Any serious or willful violation of Part 1 (commencing with
Section 6300) of Division 5 of the Labor Code or the federal
Occupational Safety and Health Act of 1970 (Public Law 91-596).
(B) Any instance where members of the contracting entity or lessee
were debarred, disqualified, or removed from a federal, state, or
local government public works project.
(C) Any instance where members of the contracting entity or
lessee, or its owners, officers, or managing employees submitted a
bid on a public works project and were found to be nonresponsive or
were found by an awarding body not to be a responsible bidder.
(D) Any instance where members of the contracting entity or
lessee, or its owners, officers, or managing employees defaulted on a
construction contract.
(E) Any violations of the Contractors'
Contractors State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
including, but not limited to, alleged violations of federal or state
law regarding the payment of wages, benefits, apprenticeship
requirements, or personal income tax withholding, or Federal
Insurance Contribution Act (FICA) withholding requirements.
(F) Any bankruptcy or receivership of any member of the
contracting entity or lessee, including, but not limited to,
information concerning any work completed by a surety.
(G) Any settled adverse claims, disputes, or lawsuits between the
owner of a public works project and any member of the contracting
entity or lessee during the five years preceding submission of a bid
under this article, in which the claim, settlement, or judgment
exceeds fifty thousand dollars ($50,000). Information shall also be
provided concerning any work completed by a surety during this
five-year period.
(H) If the contracting entity or lessee is a partnership, joint
venture, or an association that is not a legal entity, a copy of the
agreement creating the partnership or association that specifies that
all general partners, joint venturers, or association members agree
to be fully liable for the performance under the agreement.
(i) No agreement entered into pursuant to this section shall
infringe on the authority of the department or a regional
transportation agency to develop, maintain, repair, rehabilitate,
operate, or lease any transportation project. Lease agreements may
provide for reasonable compensation to the contracting entity or
lessee for the adverse effects on toll revenue or user fee revenue
due to the development, operation, or lease of supplemental
transportation projects with the exception of any of the following:
(1) Projects identified in regional transportation plans prepared
pursuant to Section 65080 of the Government Code.
(2) Safety projects.
(3) Improvement projects that will result in incidental capacity
increases.
(4) Additional high-occupancy vehicle lanes or the conversion of
existing lanes to high-occupancy vehicle lanes.
(5) Projects located outside the boundaries of a public-private
partnership project, to be defined by the lease agreement.
However, compensation to a contracting entity or lessee shall only
be made after a demonstrable reduction in use of the facility
resulting in reduced toll or user fee revenues, and may not exceed
the difference between the reduction in those revenues and the amount
necessary to cover the costs of debt service, including principal
and interest on any debt incurred for the development, operation,
maintenance, or rehabilitation of the facility.
(j) (1) Agreements entered into pursuant to this section shall
authorize the contracting entity or lessee to impose tolls and user
fees for use of a facility constructed by it, and shall require that
over the term of the lease the toll revenues and user fees be applied
to payment of the capital outlay costs for the project, the costs
associated with operations, toll and user fee collection,
administration of the facility, reimbursement to the department or
other governmental entity for the costs of services to develop and
maintain the project, police services, and a reasonable return on
investment. The agreement shall require that, notwithstanding
Sections 164, 188, and 188.1, any excess toll or user fee revenue
either be applied to any indebtedness incurred by the contracting
entity or lessee with respect to the project, improvements to the
project, or be paid into the State Highway Account, or for all three
purposes, except that any excess toll revenue under a lease agreement
with a regional transportation agency may be paid to the regional
transportation agency for use in improving public transportation in
and near the project boundaries.
(2) Lease agreements shall establish specific toll or user fee
rates. Any proposed increase in those rates not otherwise established
or identified in the lease agreement during the term of the
agreement shall first be approved by the department or regional
transportation agency, as appropriate, after at least one public
hearing conducted at a location near the proposed or existing
facility.
(3) The collection of tolls and user fees for the use of these
facilities may be extended by the commission or regional
transportation agency at the expiration of the lease agreement.
However, those tolls or user fees shall not be used for any purpose
other than for the improvement, continued operation, or maintenance
of the facility.
(k) Agreements entered into pursuant to this section shall include
indemnity, defense, and hold harmless provisions agreed to by the
department or regional transportation agency and the contracting
entity or lessee, including provisions for indemnifying the State of
California or the regional transportation agency against any claims
or losses resulting or accruing from the performance of the
contracting entity or lessee.
(l) The plans and specifications for each transportation project
on the state highway system developed, maintained, repaired,
rehabilitated, reconstructed, or operated pursuant to this section
shall comply with the department's standards for state transportation
projects. The lease agreement shall include performance standards,
including, but not limited to, levels of service. The agreement shall
require facilities on the state highway system to meet all
requirements for noise mitigation, landscaping, pollution control,
and safety that otherwise would apply if the department were
designing, building, and operating the facility. If a facility is on
the state highway system, the facility leased pursuant to this
section shall, during the term of the lease, be deemed to be a part
of the state highway system for purposes of identification,
maintenance, enforcement of traffic laws, and for the purposes of
Division 3.6 (commencing with Section 810) of Title 1 of the
Government Code.
(m) Failure to comply with the lease agreement in any significant
manner shall constitute a default under the agreement and the
department or the regional transportation agency, as appropriate,
shall have the option to initiate processes to revert the facility to
the public agency.
(n) The assignment authorized by subdivision (c) of Section 130240
of the Public Utilities Code is consistent with this section.
(o) A lease to a private entity pursuant to this section is deemed
to be public property for a public purpose and exempt from
leasehold, real property, and ad valorem taxation, except for the
use, if any, of that property for ancillary commercial purposes.
(p) Nothing in this section is intended to infringe on the
authority to develop high-occupancy toll lanes pursuant to Section
149.4, 149.5, or 149.6.
(q) Nothing in this section shall be construed to allow the
conversion of any existing nontoll or nonuser-fee lanes into tolled
or user fee lanes with the exception of a high-occupancy vehicle lane
that may be operated as a high-occupancy toll lane for vehicles not
otherwise meeting the requirements for use of that lane.
(r) The lease agreement shall require the contracting entity or
lessee to provide any information or data requested by the California
Transportation Commission or the Legislative Analyst. The
commission, in cooperation with the Legislative Analyst, shall
annually prepare a report on the progress of each project and
ultimately on the operation of the resulting facility. The report
shall include, but not be limited to, a review of the performance
standards, a financial analysis, and any concerns or recommendations
for changes in the program authorized by this section.
(s) Notwithstanding any other provision of this section, no lease
agreement may be entered into pursuant to the section that affects,
alters, or supersedes the Memorandum of Understanding (MOU), dated
November 26, 2008, entered into by the Golden Gate Bridge Highway and
Transportation District, the Metropolitan Transportation Commission,
and the San Francisco County Transportation Authority, relating to
the financing of the U.S. Highway 101/Doyle Drive reconstruction
project located in the City and County of San Francisco.
(t) No lease agreements may be entered into under this section on
or after January 1, 2017.
SEC. 121. Section 1095 of the
Unemployment Insurance Code is amended to read:
1095. The director shall permit the use of any information in his
or her possession to the extent necessary for any of the following
purposes and may require reimbursement for all direct costs incurred
in providing any and all information specified in this section,
except information specified in subdivisions (a) to (e), inclusive:
(a) To enable the director or his or her representative to carry
out his or her responsibilities under this code.
(b) To properly present a claim for benefits.
(c) To acquaint a worker or his or her authorized agent with his
or her existing or prospective right to benefits.
(d) To furnish an employer or his or her authorized agent with
information to enable him or her to fully discharge his or her
obligations or safeguard his or her rights under this division or
Division 3 (commencing with Section 9000).
(e) To enable an employer to receive a reduction in contribution
rate.
(f) To enable federal, state, or local government departments or
agencies, subject to federal law, to verify or determine the
eligibility or entitlement of an applicant for, or a recipient of,
public social services provided pursuant to Division 9 (commencing
with Section 10000) of the Welfare and Institutions Code, or Part A
of Title IV of the Social Security Act, where the verification or
determination is directly connected with, and limited to, the
administration of public social services.
(g) To enable county administrators of general relief or
assistance, or their representatives, to determine entitlement to
locally provided general relief or assistance, where the
determination is directly connected with, and limited to, the
administration of general relief or assistance.
(h) To enable state or local governmental departments or agencies
to seek criminal, civil, or administrative remedies in connection
with the unlawful application for, or receipt of, relief provided
under Division 9 (commencing with Section 10000) of the Welfare and
Institutions Code or to enable the collection of expenditures for
medical assistance services pursuant to Part 5 (commencing with
Section 17000) of Division 9 of the Welfare and Institutions Code.
(i) To provide any law enforcement agency with the name, address,
telephone number, birth date, social security number, physical
description, and names and addresses of present and past employers,
of any victim, suspect, missing person, potential witness, or person
for whom a felony arrest warrant has been issued, when a request for
this information is made by any investigator or peace officer as
defined by Sections 830.1 and 830.2 of the Penal Code, or by any
federal law enforcement officer to whom the Attorney General has
delegated authority to enforce federal search warrants, as defined
under Sections 60.2 and 60.3 of Title 28 of the Code of Federal
Regulations, as amended, and when the requesting officer has been
designated by the head of the law enforcement agency and requests
this information in the course of and as a part of an investigation
into the commission of a crime when there is a reasonable suspicion
that the crime is a felony and that the information would lead to
relevant evidence. The information provided pursuant to this
subdivision shall be provided to the extent permitted by federal law
and regulations, and to the extent the information is available and
accessible within the constraints and configurations of existing
department records. Any person who receives any information under
this subdivision shall make a written report of the information to
the law enforcement agency that employs him or her, for filing under
the normal procedures of that agency.
(1) This subdivision shall not be construed to authorize the
release to any law enforcement agency of a general list identifying
individuals applying for or receiving benefits.
(2) The department shall maintain records pursuant to this
subdivision only for periods required under regulations or statutes
enacted for the administration of its programs.
(3) This subdivision shall not be construed as limiting the
information provided to law enforcement agencies to that pertaining
only to applicants for, or recipients of, benefits.
(4) The department shall notify all applicants for benefits that
release of confidential information from their records will not be
protected should there be a felony arrest warrant issued against the
applicant or in the event of an investigation by a law enforcement
agency into the commission of a felony.
(j) To provide public employee retirement systems in California
with information relating to the earnings of any person who has
applied for or is receiving a disability income, disability
allowance, or disability retirement allowance, from a public employee
retirement system. The earnings information shall be released only
upon written request from the governing board specifying that the
person has applied for or is receiving a disability allowance or
disability retirement allowance from its retirement system. The
request may be made by the chief executive officer of the system or
by an employee of the system so authorized and identified by name and
title by the chief executive officer in writing.
(k) To enable the Division of Labor Standards Enforcement in the
Department of Industrial Relations to seek criminal, civil, or
administrative remedies in connection with the failure to pay, or the
unlawful payment of, wages pursuant to Chapter 1 (commencing with
Section 200) of Part 1 of Division 2 of, and Chapter 1 (commencing
with Section 1720) of Part 7 of Division 2 of, the Labor Code.
( l ) To enable federal, state, or local governmental
departments or agencies to administer child support enforcement
programs under Title IV of the Social Security Act (42 U.S.C. Sec.
651 et seq.).
(m) To provide federal, state, or local governmental departments
or agencies with wage and claim information in its possession that
will assist those departments and agencies in the administration of
the Victims of Crime Program or in the location of victims of crime
who, by state mandate or court order, are entitled to restitution
that has been or can be recovered.
(n) To provide federal, state, or local governmental departments
or agencies with information concerning any individuals who are or
have been:
(1) Directed by state mandate or court order to pay restitution,
fines, penalties, assessments, or fees as a result of a violation of
law.
(2) Delinquent or in default on guaranteed student loans or who
owe repayment of funds received through other financial assistance
programs administered by those agencies. The information released by
the director for the purposes of this paragraph shall not include
unemployment insurance benefit information.
(o) To provide an authorized governmental agency with any or all
relevant information that relates to any specific workers'
compensation insurance fraud investigation. The information shall be
provided to the extent permitted by federal law and regulations. For
the purposes of this subdivision, "authorized governmental agency"
means the district attorney of any county, the office of the Attorney
General, the Department of Industrial Relations, and the Department
of Insurance. An authorized governmental agency may disclose this
information to the State Bar, the Medical Board of California, or any
other licensing board or department whose licensee is the subject of
a workers' compensation insurance fraud investigation. This
subdivision shall not prevent any authorized governmental agency from
reporting to any board or department the suspected misconduct of any
licensee of that body.
(p) To enable the Director of the Bureau for Private Postsecondary
and Vocational Education, or his or her representatives, to access
unemployment insurance quarterly wage data on a case-by-case basis to
verify information on school administrators, school staff, and
students provided by those schools who are being investigated for
possible violations of Chapter 7 (commencing with Section 94700) of
Part 59 of the Education Code.
(q) To provide employment tax information to the tax officials of
Mexico, if a reciprocal agreement exists. For purposes of this
subdivision, "reciprocal agreement" means a formal agreement to
exchange information between national taxing officials of Mexico and
taxing authorities of the State Board of Equalization, the Franchise
Tax Board, and the Employment Development Department. Furthermore,
the reciprocal agreement shall be limited to the exchange of
information that is essential for tax administration purposes only.
Taxing authorities of the State of California shall be granted tax
information only on California residents. Taxing authorities of
Mexico shall be granted tax information only on Mexican nationals.
(r) To enable city and county planning agencies to develop
economic forecasts for planning purposes. The information shall be
limited to businesses within the jurisdiction of the city or county
whose planning agency is requesting the information, and shall not
include information regarding individual employees.
(s) To provide the State Department of Developmental Services with
wage and employer information that will assist in the collection of
moneys owed by the recipient, parent, or any other legally liable
individual for services and supports provided pursuant to Chapter 9
(commencing with Section 4775) of Division 4.5 of, and Chapter 2
(commencing with Section 7200) and Chapter 3 (commencing with Section
7500) of Division 7 of, the Welfare and Institutions Code.
(t) Nothing in this section shall be construed to authorize or
permit the use of information obtained in the administration of this
code by any private collection agency.
(u) The disclosure of the name and address of an individual or
business entity that was issued an assessment that included penalties
under Section 1128 or 1128.1 shall not be in violation of Section
1094 if the assessment is final. The disclosure may also include any
of the following:
(1) The total amount of the assessment.
(2) The amount of the penalty imposed under Section 1128 or 1128.1
that is included in the assessment.
(3) The facts that resulted in the charging of the penalty under
Section 1128 or 1128.1.
(v) To enable the Contractors' Contractors
State License Board to verify the employment history of an
individual applying for licensure pursuant to Section 7068 of the
Business and Professions Code.
(w) To provide any peace officer with the Division of
Investigation in the Department of Consumer Affairs information
pursuant to subdivision (i) when the requesting peace officer has
been designated by the Chief of the Division of Investigation and
requests this information in the course of and as part of an
investigation into the commission of a crime or other unlawful act
when there is reasonable suspicion to believe that the crime or act
may be connected to the information requested and would lead to
relevant information regarding the crime or unlawful act.
(x) To enable the Labor Commissioner of the Division of Labor
Standards Enforcement in the Department of Industrial Relations to
identify, pursuant to Section 90.3 of the Labor Code, unlawfully
uninsured employers. The information shall be provided to the extent
permitted by federal law and regulations.
(y) To enable the Chancellor of the California Community Colleges,
in accordance with the requirements of Section 84754.5 of the
Education Code, to obtain quarterly wage data, commencing January 1,
1993, on students who have attended one or more community colleges,
to assess the impact of education on the employment and earnings of
students, to conduct the annual evaluation of district-level and
individual college performance in achieving priority educational
outcomes, and to submit the required reports to the Legislature and
the Governor. The information shall be provided to the extent
permitted by federal statutes and regulations.
(z) To enable the Public Employees' Retirement System to seek
criminal, civil, or administrative remedies in connection with the
unlawful application for, or receipt of, benefits provided under Part
3 (commencing with Section 20000) of Division 5 of Title 2 of the
Government Code.
SECTION 1. Section 7127 is added to the
Business and Professions Code, to read:
7127. If an unlicensed contractor has failed to secure the
payment of compensation as required by Section 3700 of the Labor
Code, the registrar may, in addition to any other administrative
remedy, issue and serve on that person a stop order prohibiting the
use of employee labor. Failure of any employer, officer, or any
person having direction, management, or control of any place of
employment or of employees to observe a stop order issued and served
upon him or her pursuant to this section is a misdemeanor punishable
by imprisonment in the county jail not exceeding 60 days or by a fine
not exceeding ten thousand dollars ($10,000), or both.
SEC. 2. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the
meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
