10 The proposed Policy was prepared by the City Attorney and reviewed by the City Manager's Office and is consistent with PCC sections 22162 and 22185.2. In summary, the Policy prohibits a potential proposer from participating as a DBE/DBT on a particular project where the proposer has performed prior work on the project or is otherwise assisting the City with other aspects of the project. The policy further prohibits City officers or employees from participating in the award of a contract where a financial conflict of interest exists pursuant to Government Code Section 1090, et. seq.
In summary, these are the procurement methods that the Organizational Conflict of Interest Code addresses:
■ Design -Build —The DB method is distinct from PDB and the typical public works method in that the selection process results in a contract with a fixed price for design, preconstruction, and construction services. In the simplest terms, it merges the design and construction components of a project, which are typically performed by unrelated entities under separate contracts. The procurement process involves Yucaipa's release of project - related information, sufficient to enable a design -build entity (DBE) to respond to both a request for qualifications (RFQ), which results in a shortlist of prequalified DBEs, and a request for proposals (UP), which results in a fixed -price contract award. The City may subsequently select a DBE based on either lowest responsible bid or best value methodology. The ability of local entities to determine the proposal that represents the "best value" to the City as opposed to the requirement that a local entity award the project agreement to the lowest responsible bidder.
■ Progressive Design-BuildIn contrast to the DB method, the PDB method facilitates a collaborative relationship between the City and the DBE. The City will select the DBE based on qualifications alone through an RFQ process and enter into a DB contract that prices design work with a not -to -exceed amount. Once the DBE has sufficiently completed design activities, it will propose a guaranteed maximum price (GMP). If the parties agree to a GMP, they will amend the DB contract to include this price, and the DBE will complete the remaining design activities and construction. The DBE will be paid for neither the costs in excess of the GMP, nor the differential between actual costs and the GMP, absent an agreement to share these proceeds. If the parties cannot agree on a GMP, either:
i. Yucaipa will require the DBE to finish the design work and bid out the corresponding construction work,
ii. Yucaipa will award a contract to another DBE to finish design and construction, or iii. Yucaipa will complete some or all of the remaining work with its own resources.
Organizational Conflict -of -Interest Policy
Sections 22162 and 22185.2 of the PCC, require the City to develop guidelines for a standard organizational conflict -of -interest policy, consistent with applicable law, regarding the ability of an entity to submit a proposal to the City for a DB or PDB project. The proposed organizational Policy is consistent with the policies of other California public agencies. The proposed Policy contains the following elements: (1) a description of the types of conflicts that prohibit a DBE from participating in a solicitation process or entering into a contract; (2) specific examples of conflicts on DB and PDB projects; (3) a description of conflict -related obligations for both proposers and entities awarded contracts; (4) a list of safeguards and other measures to mitigate conflicts; and (5) remedial measures.
In addition to developing the proposed Policy (Attachment 2), staff will begin discussing the conceptual design and preparing a request for qualifications and working to procure funding for the Yucaipa Public Library project, which seems like an appropriate project to utilize the DB or PDB project delivery method.
Staff recommends approving the attached resolution establishing the Policy for Design -Build and Progressive Design -Build Projects. Approval of the proposed resolution adopting the Policy will allow staff to utilize DB and PDB in accordance with the California Public Contracting Code for projects where it is in the City's best interest.
CEQA
The proposed action is not defined as a project under CEQA (Public Resources Code Section 21065, State CEQA Guidelines Section 15378) because the proposed action will not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and involves continuing administrative activities, such as general policy and procedure making (Section 15378(b)(2) of the State CEQA Guidelines). In addition, the proposed action is not defined as a project under CEQA because it involves government funding mechanisms or other government fiscal activities which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment (Section 15378(b)(4) of the State CEQA Guidelines).
FISCAL IMPACT:
None
Attachments:
1. California Public Contracting Code Sections 22160-22162, 22164; 22185-22185.3
2. Resolution No. 2024-08
Approved by: _/—!=
ATTACHMENT 1
§ 22161. Definitions, CA PUB CONT § 22161
West's Annotated California Codes
Public Contract Code (Refs & Annos)
Division 2. General Provisions (Refs & Annos)
Part 3. Contracting by Local Agencies (Refs & Annos)
Chapter 4. Local Agency Design -Build Projects (Refs & Annos West's Ann.Cal. Pub.Con. Code § 2216o
§ 2216o. Authorization of design -build method of project delivery; legislative intent Effective: January 1, 2015
Currentness
(a) The Legislature finds and declares that the design -build method of project delivery, using a best value procurement methodology, has been authorized for various agencies that have reported benefits from such projects including reduced project costs, expedited project completion, and design features that are not achievable through the traditional design -bid -build method. (b) It is the intent of the Legislature that the following occur:
(1) This chapter provides general authorization for local agencies to use design -build for projects, excluding projects on the state highway system.
(2) This chapter shall not be deemed to provide a preference for the design -build method over other procurement methodologies.
Credits
(Added by Stats.2014, c. 931 (S.B.785), § 14, eff. Jan. 1, 2015.) REPEAL
West's Ann.Cal.Pub.Con.Code § 22161
§ 22161. Definitions
Effective: January 1, 2024
For purposes of this chapter, the following definitions apply:
(a) "Best value" means a value determined by evaluation of objective criteria that relate to price, features, functions, life -cycle costs, experience, and past performance. A best value determination may involve the selection of the lowest cost proposal meeting the interests of the local agency and meeting the objectives of the project, selection of the best proposal for a stipulated sum established by the procuring agency, or a tradeoff between price and other specified factors. (b) "Construction subcontract" means each subcontract awarded by the design -build entity to a subcontractor that will perform work or labor or render service to the design -build entity in or about the construction of the work or improvement, or a subcontractor licensed by the State of California that, under subcontract to the design -build entity, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications produced by the design -build team.
(c) "Design -build" means a project delivery process in which both the design and construction of a project are procured from a single entity.
(d) "Design -build entity" means a corporation, limited liability company, partnership, joint venture, or other legal entity that is able to provide appropriately licensed contracting, architectural, and engineering services as needed pursuant to a design -build contract.
(e) "Design -build team" means the design -build entity itself and the individuals and other entities identified by the design -build entity as members of its team. Members shall include the general contractor and, if utilized in the design of the project, all electrical, mechanical, and plumbing contractors.
(f) "Local agency" means the following:
(1) A city, county, or city and county.
(2) A special district that operates wastewater facilities, solid waste management facilities, water recycling facilities, or fire protection facilities.
(3) Any transit district, included transit district, municipal operator, included municipal operator, any consolidated agency, as described in Section 132353.1 of the Public Utilities Code, any joint powers authority, any county transportation commission created pursuant to Section 130050 of the Public Utilities Code, or any other local or regional agency, responsible for the construction of transit projects.
(4) The San Diego Association of Governments, as referenced in the San Diego Regional Transportation Consolidation Act
(Chapter 3 (commencing with Section 132350) of Division 12.7 of the Public Utilities Code). (5) The Stanislaus Regional Water Authority.
(g)(1) Except as specified in subdivision (h), for a local agency defined in paragraph (1) of subdivision (f), "project" means the construction of a building or buildings and improvements directly related to the construction of a building or buildings, county sanitation wastewater treatment facilities, and park and recreational facilities, but does not include the construction of other infrastructure, including, but not limited to, streets and highways, public rail transit, or water resources facilities and infrastructure. For a local agency defined in paragraph (1) of subdivision (f) that operates wastewater facilities, solid waste management facilities, or water recycling facilities, "project" also means the construction of regional and local wastewater treatment facilities, regional and local solid waste facilities, or regional and local water recycling facilities. (2) For a local agency defined in paragraph (2) of subdivision (f), "project" means the construction of regional and local wastewater treatment facilities, regional and local solid waste facilities, regional and local water recycling facilities, or fire protection facilities.
(3) Except as specified in subdivision (h), for a local agency defined in paragraph (3) of subdivision (f), "project" means a transit capital project that begins a project solicitation on or after January 1, 2015. A "project," as defined by this paragraph, that begins the solicitation process before January 1, 2015, is subject to Article 6.8 (commencing with Section 20209.5) of Chapter 1. "Project," as defined by this paragraph, does not include state highway construction or local street and road projects. (4) For a local agency defined in paragraph (4) of subdivision (f), "project" has the same meaning as in paragraph (3), and shall also include development projects adjacent, or physically or functionally related, to transit facilities developed or jointly developed by the local agency.
(5) For a local agency defined in paragraph (5) of subdivision (f), "project" means the Stanislaus Regional Water Authority's Regional Surface Water Supply Project.
(h) In recognition of the additional transportation funds made available by the Road Repair and Accountability Act of 2017 (Chapter 5 of the Statutes of 2017), and to accelerate the delivery of transportation projects to the public, in addition to the authority provided in other subdivisions of this section, for a local agency defined in paragraph (1) or (3) of subdivision (f), for up to six projects to be selected by the Department of Transportation, a "project" also means construction or rehabilitation of local streets and roads, including, but not limited to, bridge replacement and railroad grade separations. Consistent with Provision 2 of Item 2660-110-0042 of Section 2.00 of the Budget Act of 2016, as amended by Chapter 7 of the Statutes of 2017, three projects shall be reserved for and selected by the Riverside County Transportation Commission, with the first priority for the projects listed in that budget item.
Credits
(Added by Stats.2014, c. 931 (S.B.785), § 14, eff. Jan. 1, 2015. Amended by Stats.2015, c. 627 (S.B.762), § 3, eff. Jan. 1, 2016; Stats.2015, c. 715 (S.B.374), § 2, eff. Jan. 1, 2016; Stats.2016, c. 366 (S.B.974), § 21, eff. Jan. 1, 2017; Stats.2017, c. 20 (A.B.115), § 8, eff. June 27, 2017; Stats.2017, c. 391 (S.B.373), § 1, eff. Jan. 1, 2018; Stats.2023, c. 201 (A.B.400), § 1, eff.
Jan. 1, 2024.)
Editors' Notes
REPEAL
West's Ann. Cal. Pub. Con. Code § 22161, CA PUB CONT § 22161 Current with Ch. 1 of 2023-24 1st Ex.Sess, and all laws through Ch. 890 of 2023 Reg.Sess.
End of Document D 2024 Thomson Reuters. No claim to original U.S. Government Works.
West's Ann.Cal.Pub.Con.Code § 22162
§ 22162. Procurement by local agency of design -build contracts for public works projects in excess of one million dollars; contract for acquisition and installation of technology applications or surveillance equipment; conflict -of -interest policy
Effective: January 1, 2015
(a) Except as provided in subdivision (b), and notwithstanding any other law, a local agency, with approval of its governing body, may procure design -build contracts for public works projects in excess of one million dollars ($1,000,000), awarding the contract either the low bid or the best value, provided that this article shall not apply to any projects on the state highway system.
(b) When a local agency described in paragraph (3) of subdivision (f) of Section 22161 awards a contract 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 contract may be awarded to the lowest responsible bidder or by using the best value method.
(c) The local agency shall develop guidelines for a standard organizational conflict -of -interest policy, consistent with applicable law, regarding the ability of a person or entity, that performs services for the local agency relating to the solicitation of a design - build project, to submit a proposal as a design -build entity, or to join a design -build team. This conflict -of -interest policy shall apply to each local agency entering into design -build contracts authorized under this chapter.
Credits
(Added by Stats.2014, c. 931 (S.B.785), § 14, eff. Jan. 1, 2015.) Editors' Notes
REPEAL
West's Ann. Cal. Pub. Con. Code § 22162, CA PUB CONT § 22162 Current with Ch. 1 of 2023-24 1st Ex.Sess, and all laws through Ch. 890 of 2023 Reg. Sess
§ 22185.2. Conflict -of -interest policy, CA PUB CONT § 22185.2 West's Ann.Cal.Pub.Con.Code § 22164
§ 22164. Design -build project procurement process; required documents; request for qualifications; enforceable commitment to use skilled and trained workforce; elements of request for proposals; low bid and best value selection processes
Effective: January 1, 2023
Currentness
The procurement process for the design -build projects shall progress as follows:
(a)(1) The local agency 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 or building layouts, or any other information deemed necessary to describe adequately the local agency's needs. The performance specifications and any plans shall be prepared by a design professional who is duly licensed and registered in California.
(2) The documents shall not include a design -build -operate contract for any project. The documents, however, may include operations during a training or transition period but shall not include long-term operations for any project.
(b) The local agency shall prepare and issue a request for qualifications in order to prequalify or short-list 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 local agency to evaluate proposals, the procedure for final selection of the design -build entity, and any other information deemed necessary by the local agency to inform interested parties of the contracting opportunity.
(2) Significant factors that the local agency reasonably expects to consider in evaluating qualifications, including technical design and construction expertise, acceptable safety record, and all other nonprice-related factors. (3) A standard template request for statements of qualifications prepared by the local agency. In preparing the standard template, the local agency may consult with the construction industry, the building trades and surety industry, and other local agencies interested in using the authorization provided by this article. The template shall
§ 22185.2. Conflict -of -interest policy, CA PUB CONT § 22185.2 require the following information:
(A) If the design -build entity is a privately held corporation, limited liability company, partnership, or joint venture, a listing of all of the shareholders, partners, or members known at the time of statement of qualification submission who will perform work on the project.
(B) Evidence that the members of the design -build team 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 ensures 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) If the proposed design -build entity is a corporation, limited liability company, partnership, joint venture, or other legal entity, a copy of the organizational documents or agreement committing to form the organization. (G) An acceptable safety record. A proposer'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 proposer is a party to an alternative dispute resolution system as provided for in Section 3201.5 of the Labor Code.
(4)(A) The information required under this subdivision shall be certified under penalty of perjury by the design - build entity and its general partners or joint venture members. (13) Information required under this subdivision that is not otherwise a public record under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection.
(c)(1) A design -build entity shall not be prequalified or short-listed unless the entity provides an enforceable commitment to the local agency that the entity and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the project or contract that falls within an apprenticeable occupation in the building and construction trades, in accordance with Chapter 2.9 (commencing with Section 2600) of Part 1. (2) This subdivision shall not apply if any of the following requirements are met:
§ 22185.2. Conflict -of -interest policy, CA PUB CONT § 22185.2 (A) The local agency has entered into a project labor agreement that will bind all contractors and subcontractors performing work on the project or contract to use a skilled and trained workforce, and the entity agrees to be bound by that project labor agreement.
(B) The project or contract is being performed under the extension or renewal of a project labor agreement that was entered into by the local agency prior to January 1, 2017. (C) The entity has entered into a project labor agreement that will bind the entity and all its subcontractors at every tier performing the project or contract to use a skilled and trained workforce. (3) For purposes of this subdivision, "project labor agreement' has the same meaning as in paragraph (1) of subdivision (b) of Section 2500.
(d) Based on the documents prepared as described in subdivision (a), the local agency shall prepare a request for proposals that invites prequalified or short-listed entities to submit competitive sealed proposals in the manner prescribed by the local agency. 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 local agency to evaluate proposals, whether the contract will be awarded on the basis of low bid or best value, and any other information deemed necessary by the local agency to inform interested parties of the contracting opportunity.
(2) Significant factors that the local agency 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. (e) For those projects utilizing low bid as the final selection method, the competitive bidding process shall result in lump -sum bids by the prequalified or short-listed design -build entities, and awards shall be made to the design - build entity that is the lowest responsible bidder.
(f) 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. The following minimum factors, however, shall be weighted as deemed appropriate by the local agency:
(A) Price, unless a stipulated sum is specified.
(B) Technical design and construction expertise.
§ 22185.2. Conflict -of -interest policy, CA PUB CONT § 22185.2 (C) Life -cycle costs over 15 or more years.
(2) Pursuant to subdivision (d), the local agency may hold discussions or negotiations with responsive proposers using the process articulated in the local agency's request for proposals. (3) When the evaluation is complete, the responsive proposers shall be ranked based on a determination of value provided, provided that no more than three proposers are required to be ranked. (4) The award of the contract shall be made to the responsible design -build entity whose proposal is determined by the local agency to have offered the best value to the public. (5) Notwithstanding any other provision of this code, upon issuance of a contract award, the local agency shall publicly announce its award, identifying the design -build entity to which the award is made, along with a statement regarding the basis of the award.
(6) The statement regarding the local agency's contract award, described in paragraph (5), and the contract file shall provide sufficient information to satisfy an external audit.
Credits
(Added by Stats.2014, c. 931 (S.B.785), § 14, eff. Jan. I, 2015. Amended by Stats.2016, c. 774 (S.B.693), § 10, eff. Jan. 1, 2017; Stats 2021, c. 615 (A.B.474), § 365, eff. Jan. 1, 2022, operative Jan. 1, 2023.) Editors' Notes
REPEAL
APPLICATION
§ 22185.2. Conflict -of -interest policy, CA PUB CONT § 22185.2
LAW REVISION COMMISSION COMMENTS
2021 Amendment
Section 22164 is amended to reflect nonsubstantive reorganization of the California Public Records Act. See California Public Records Act Clean -Up, 46 Cal. L. Revision Comm'n Reports 207 (2019).
The section is also amended to make a technical change. [48 Cal.L.Rev.Comm. Reports _ (2021) [2021-22 AR Appx. 6]].
West's Ann. Cal. Pub. Con. Code § 22164, CA PUB CONT § 22164 Current with Ch. 1 of 2023-24 1st Ex.Sess, and all laws through Ch. 890 of 2023 Reg.Sess.
End of Docuuunt C, 1024 Thomson Reuters. No claim to orieinal U.S. Govemment Works.
West's Annotated California Codes
West's Ann.Cal.Pub.Con.Code § 22185
§ 22185. Definitions
Effective: January 1, 2024
For purposes of this chapter, the following definitions apply:
(a)(1) "Best value" means a value determined by evaluation of objective criteria that may include, but are not limited to, price, features, function, life -cycle costs, experience, and past performance. (2) A best value determination may involve the selection of the lowest cost proposal meeting the interests of the local agency and the objectives of the project.
(b) "Construction subcontract" means each subcontract awarded by the design -build entity to a subcontractor that will perform work or labor or render service to the design -build entity in or about the construction of the work or improvement, or a subcontractor licensed by the State of California that, under subcontract to the design -build entity, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications produced by the design -build team. (c) "Design -build entity" means a corporation, limited liability company, partnership, joint venture, or other legal entity that is able to provide appropriately licensed contracting, architectural, and engineering services as needed pursuant to a design -build contract.
(d) "Design -build project" means any project using the progressive design -build construction procurement process described in this chapter, but does not include projects on state-owned or state -operated facilities.
§ 22185.2. Conflict -of -interest policy, CA PUB CONT § 22185.2 (e) "Design -build team" means the design -build entity itself and the individuals and other entities identified by the design -build entity as members of its team. Members shall include the general contractor and, if utilized in the design of the project, all electrical, mechanical, and plumbing contractors. (f) "Guaranteed maximum price" means the maximum payment amount agreed upon by the local agency and the design -build entity for the design -build entity to finish all remaining design, preconstruction, and construction activities sufficient to complete and close out the project. (g) "Local agency" means a city, county, city and county, or special district. (h) "Progressive design -build" means a project delivery process in which both the design and construction of a project are procured from a single entity that is selected through a qualifications -based selection at the earliest feasible stage of the project.
(i) "Qualifications -based selection" means the process by which the local agency solicits for services from the design -build entities and that price is not the sole factor as the basis of award.
Credits
(Added by Stats.2023, c. 500 (S.B.706), § 1, eff. Jan. 1, 2024.) Editors' Notes
REPEAL
West's Ann.Cal.Pub.Con.Code § 22185.1
§ 22185J. Number and cost of public works projects; use of progressive design -build contracting process
Effective: January 1, 2024
Currentness
A local agency may procure progressive design -build contracts and use the progressive design -build contracting process described in this chapter for up to 10 public works projects in excess of five million dollars ($5,000,000) for each project.
§ 22185.2. Conflict -of -interest policy, CA PUB CONT § 22185.2 Credits
(Added by Stats.2023, c. 500 (S.B.706), § 1, eff. Jan. 1, 2024.) Editors' Notes
REPEAL
West's Ann.Cal. Pub.Con. Code § 22185.2
§ 22185.2. Conflict -of -interest policy
Effective: January 1, 2024
currentness
A local agency entering into design -build contracts authorized under this chapter shall develop guidelines for a standard organizational conflict -of -interest policy, consistent with applicable law, regarding the ability of a person or entity that performs services for the local agency relating to the solicitation of a design -build project, to submit a proposal as a design -build entity, or to join a design -build team.
Credits
(Added by Stats.2023, c. 500 (S.B.706), § 1, eff. Jan. 1, 2024.) Editors' Notes
REPEAL
West's Ann.Cal.Pub.Con.Code § 22185.3
§ 22185.3. Progressive design -build projects procurement process; required documents; request for qualifications; enforceable commitment to use skilled and trained workforce; review of submissions; award
Effective: January 1, 2024
Currentness
The procurement process for progressive design -build projects shall progress as follows:
(a) The local agency shall prepare and issue a request for qualifications in order to select a design -build entity to execute the project. The request for qualifications shall include, but is not limited to, the following elements:
(1) Documentation of the size, type, and desired design character of the project and any other information deemed necessary to describe adequately the local agency's needs, including the expected cost range, the methodology that will be used by the local agency to evaluate the design -build entity's qualifications, the procedure for final selection of the design -build entity, and any other information deemed necessary by the local agency to inform interested parties of the contracting opportunity.
(2) Significant factors that the local agency reasonably expects to consider in evaluating qualifications, including technical design and construction expertise, and all other non -price -related factors. The local agency may require that a preliminary cost estimate be included in the design -build entities' responses and consider those costs in evaluating the statements of qualifications.
(3) The relative importance or the weight assigned to each of the factors identified in the request for qualifications. (4) A standard template request for statements of qualifications prepared by the local agency. In preparing the standard template, the local agency may consult with the construction industry, the building trades and surety industry, and other local agencies interested in using the authorization provided by this chapter. The template shall require the following information:
(A) If the design -build entity is a privately held corporation, limited liability company, partnership, or joint venture, a listing of all of the entity's shareholders, partners, or members known at the time of the statement of qualification
submission who will perform work on the project.
(B) Evidence that the members of the design -build team have completed, or have 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 ensures 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) If the proposed design -build entity is a corporation, limited liability company, partnership, joint venture, or other legal entity, a copy of the organizational documents or agreement committing to form the organization. (G) An acceptable safety record. A proposer'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 proposer is a party to an alternative dispute resolution system as provided for in Section 3201.5 of the Labor Code.
(5) The information required under this subdivision shall be certified under penalty of perjury by the design -build entity and its general partners or joint venture members. (b)(1) A design -build entity shall not be evaluated for selection unless the entity provides an enforceable commitment to the local agency that the entity and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the project or contract that falls within an apprenticeable occupation in the building and construction trades, in accordance with Chapter 2.9 (commencing with Section 2600) of Part 1. (2) This subdivision shall not apply if one or more of the following requirements are met:
(A) The local agency has entered into a project labor agreement that will bind all contractors and subcontractors
performing work on the project or contract to use a skilled and trained workforce, and the entity agrees to be bound by that project labor agreement.
(B) The project or contract is being performed under the extension or renewal of a project labor agreement that was entered into by the local agency before January 1, 2023. (C) The entity has entered into a project labor agreement that will bind the entity and all its subcontractors at every tier performing the project or contract to use a skilled and trained workforce. (3) For purposes of this subdivision, "project labor agreement" has the same meaning as provided in paragraph (1) of subdivision (b) of Section 2500.
(c) At the close of the solicitation period, the local agency shall review the submissions. The local agency may evaluate submissions based solely upon the information provided in each design -build entity's statement of qualifications. The local agency may also interview some or all of the design -build entities to further evaluate their qualifications for the project.
(d) Notwithstanding any other provision of this code, upon issuance of a contract award, the local agency shall publicly announce its award, identifying the design -build entity to which the award is made, along with a statement regarding the basis of the award. The statement regarding the local agency's contract award and the contract file shall provide sufficient information to satisfy an external audit.
Credits
(Added by Stats.2023, c. 500 (S.B.706), § 1, eff. Jan. 1, 2024.) Editors' Notes
REPEAL
ATTACHMENT 2
RESOLUTION NO.2024-08
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF YUCAIPA,
CALIFORNIA, APPROVING A CONFLICT OF INTERES POLICY FOR
DESING-BUILD AND PROGRESSIVE DESIGN -BUILD PROJECTS
WHEREAS, the California Legislature has found and declared that various agencies authorized to use the design -build method ofproject delivery, using a best value procurement methodology, have reported benefits from such projects, including reduced project costs, expedited project completion, and design features that are not achievable through the traditional design -bid -build method; and WHEREAS, California Public Contract Code Section 22160, et. seq., authorizes cities and other public agencies to procure design -build contracts for qualified public works projects in excess of $1,000,000, awarding the contract to either the lowest responsible bidder or to the design -build entity whose proposal provides the best value to the public; and WHEREAS, California Public Contract Code Section 22185, et. seq., authorizes cities and other public agencies to procure progressive design -build contracts for qualified public works projects in excess of $5,000,000, awarding the contract to either the lowest responsible bidder or to the design -build entity whose proposal provides the best value to the public; and
WHEREAS, California Public Contract Code ("PCC") Sections 22162 and 22185.2 require each local public agency interested in using the design -build or progressive design - build procurement method to develop guidelines for a standard organizational conflict -of - interest policy, consistent with applicable law, regarding the ability of a person or entity, that performs services for the local agency relating to the solicitation of a design- build or progressive design -build project, to submit a proposal as a design -build entity, or to join a design -build team; and
WHEREAS, the City Council hereby finds that the use of Design -Build and Progressive Design -Build Project procurement practices are appropriate for public works projects where legally permissible and in line with the Organizational Conflict of Interest Policy; and
WHEREAS, City staff prepared the attached Organizational Conflict of Interest Policy for the procurement of Design -Build and Progressive Design -Build Project services consistent with the requirements outlined in PCC Sections 22162 and 22185.2.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF YUCAIPA HEREBY RESOLVES AS FOLLOWS:
Section 1. The information set forth above is true and correct.
Section 2. The City Council hereby adopts the attached Organizational Conflict of Interest Policy for Design -Build and Progressive Design -Build Projects.
Section 3. The City Council hereby authorizes and directs the City Manager and the Director of Development Services/City Engineer to take all actions necessary to implement the Organizational Conflict of Interest Policy forDesign-Build and Progressive Design -Build Projects.
Section 4. This Resolution shall take effect upon its adoption.
Section 5. The City Clerk shall certify the adoption of this Resolution and cause it to be published in the manner required by law.
PASSED, APPROVED, and ADOPTED this 22nd day of April 2024.
Justin Beaver, Mayor
ATTEST:
Ana V. Sauseda, MMC
Director of General Services/City Clerk
CITY OF YUCAIPA, CALIFORNIA
ORGANIZATIONAL CONFLICT OF INTEREST
POLICY FOR DESIGN -BUILD AND PROGRESSIVE
DESIGN -BUILD PROJECTS
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Public Contract Code sections 22160, et. seq. and 22185, et. seq. mandate local entities such as the City of Yucaipa to develop guidelines for an organizational conflict -of -interest policy applicable to the procurement of design -build ("DB") and progressive design -build ("PDB") services for qualifying public works projects. This policy applies to design -build entities' that have entered into or submitted proposals seeking to enter into contracts DB or PDB awarded by the City of Yucaipa ("City") to perform services. An authorized representative of each DBE Proposer must attest, in a form prescribed by the City, that the representative has reviewed and accepted this policy as a prerequisite to participation in the design -build or progressive design -build process.
POLICY.
Contractors and consultants may not participate in a proposal to the City as a design -build entity, progressive design -build entity, or as part of a DB or PDB team (collectively, "Proposer(s)" or "DBE(s)") if the DBE has any organizational conflicts of interest.
Organizational conflicts of interest are defined as circumstances arising out of a Proposer's current or past activities, business or financial interests, familial relationships, contractual relationships, and/or organizational structure (e.g., parent entities, subsidiaries, affiliates) that result in:
(i) impairment or potential impairment of a consultant's or contractor's ability to render impartial assistance or advice to the City or of its objectivity in performing work for the City;
(ii) an unfair competitive advantage for any bidder or proposer with respect to a City DB or PDB procurement; or
(iii) the perception or appearance of impropriety with respect to any of the City's procurements or contracts or a perception or appearance of unfair competitive advantage with respect to a procurement by the City (regardless of whether any such perception is accurate).
The following are common factual circumstances which present an organizational conflict of interest:
1. A Proposer is the City's general engineering, construction, design or architectural consultant to the design -build or progressive design -build project, except that a sub - consultant to the Proposer that has not yet performed work on the contract to provide services for the design -build or progressive design -build project may participate as a proposer or join a design -build, or progressive design -build team if sub -consultant terminates the preceding agreement to provide work and provides no work for the City's general engineering or architectural consultant on the design -build or progressive design -build project.