BILL NUMBER: SB 959 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 29, 2005
AMENDED IN SENATE MAY 25, 2005
AMENDED IN SENATE MAY 5, 2005
AMENDED IN SENATE APRIL 11, 2005
INTRODUCED BY Senator Kehoe
FEBRUARY 22, 2005
An act to amend Sections 20340 and 20341 of the Public Contract
Code, and to amend Sections 120100, 120105, 120220, 120224.1,
120224.3, 120224.4, 120260, 120264, 120300, 120301, 120302, 120351,
120352, 120355, 120400, 120452, 120508, 120540, 120630, and 120631
of, to add Sections 120220.5 and 120682 to, to repeal Sections 120262
and 120353 of, and to repeal and add Sections 120202, 120222, and
120350 of, the Public Utilities Code, relating to transportation, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 959, as amended, Kehoe. San Diego Metropolitan Transit
Development Board.
Existing law, the Mills-Deddeh Transit Development Act, creates
the San Diego Metropolitan Transit Development Board, which is
authorized to perform certain transportation functions in a portion
of the County of San Diego, including planning and constructing
exclusive public mass transit guideways. Under existing law, the
board is authorized to enter into contracts for the acquisition of
goods and services and is required to comply with specified
requirements in that contracting process. Existing law authorizes the
board to issue revenue bonds and to borrow money in accordance with
certain procedures.
This bill would extend various types of benefits to the board that
are accorded under existing law to other public agencies. The bill
would revise the board's contracting requirements and its
responsibilities for planning and constructing exclusive public mass
transit guideways, specifying that the board provide input on those
matters to the San Diego Association of Governments (SDAG). The bill
would name SDAG the designated recipient of federal transit funds and
would require the board to administer its transportation funding and
its public transit system in conformity with the San Diego Regional
Transportation Consolidation Act. The bill would authorize the board
to issue pension obligation bonds.
Because the bill would require the board to assume additional
responsibilities, it would impose 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.
This bill would declare that it is to take effect immediately as an
urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 20340 of the Public Contract Code is amended to
read:
20340.
The provisions of this article shall apply to contracts by the San
Diego Metropolitan Transit Development Board, as provided for in
Division 11 (commencing with Section 120000) of the Public Utilities
Code.
SEC. 2. Section 20341 of the Public Contract Code is amended to
read:
20341.
(a) Except as provided in subdivision (c), contracts for
construction in excess of fifty thousand dollars ($50,000) shall be
awarded to the lowest responsible bidder submitting a responsive bid
after competitive bidding, except in emergency declared by the vote
of two-thirds of the membership of the board. If the expected
construction contract exceeds one thousand dollars ($1,000) and does
not exceed fifty thousand dollars ($50,000), the board shall seek a
minimum of three quotations, either written or oral, that permit
prices and other terms to be compared, and the board shall award the
contract to the bidder who submitted the lowest quotation.
(b) If no bids are received, the project may be performed by a
negotiated contract.
(c) This section does not apply to the Los Angeles County
Metropolitan Transportation Authority.
SEC. 3. Section 120100 of the Public Utilities Code is amended to
read:
120100.
The board at its first meeting, and thereafter annually at the
first meeting in January, shall elect a vice chair who shall preside
in the absence of the chair. In the event of the absence or inability
to act by the chair or vice chair, the chair pro tempore shall
preside.
SEC. 4. Section 120105 of the Public Utilities Code is amended to
read:
120105.
The board shall perform the following duties:
(a) Determine whether to operate exclusive public mass transit
guideways or to let contracts for their operation in conformity
with state labor laws and subdivision (d) of Section 120508 .
(b) Determine the means to finance the operation of public mass
transit guideways.
(c) Adopt an annual budget and fix the compensation of its
officers and employees.
(d) Adopt an administrative code, by ordinance, that shall
prescribe the powers and duties of board officers, the method of
appointment of board employees, and methods, procedures, and systems
of operation and management of the board. The administrative code
shall also provide for, among other things, the appointment of a
general manager or chief executive officer, and the organization of
the employees of the board into units for finance and administration,
planning and operations, property acquisition and management, and
community relations, and other units as the board deems necessary.
(e) Cause a postaudit of the financial transactions and records of
the board to be made at least annually by a certified public
accountant.
(f) Adopt all ordinances and make all rules and regulations proper
or necessary to regulate the use, operation, and maintenance of its
property and facilities, including its public transit systems and
related transportation facilities and services operating within its
area of jurisdiction, and to carry into effect the powers granted to
the board.
(g) Appoint such advisory commissions as it deems necessary.
(h) Do any and all things necessary to carry out the purposes of
this division.
SEC. 5. Section 120202 of the Public Utilities Code is repealed.
SEC. 6. Section 120202 is added to the Public Utilities Code, to
read:
120202.
(a) All of the privileges, immunities from liability, and
exemptions from laws, ordinances, and rules, and all pension, relief,
disability, workers' compensation, and other benefits that apply to
the activity of officers, agents, or employees of a public agency
when performing their respective functions shall apply to employees
of the board, and to any nonprofit public benefit corporation of
which the board is the sole member.
(b) All claims for money or damages against the board or its
employees, and against any nonprofit public benefit corporation of
which the board is the sole member or the employees of that
corporation, shall be governed by Part 1 (commencing with Section
810), Part 2 (commencing with Section 814), Part 3 (commencing with
Section 900), and Part 4 (commencing with Section 940) of Division
3.6 of Title 1 of the Government Code applicable to public agencies
and their employees, or by other statutes or regulations expressly
applicable thereto.
SEC. 7. Section 120220 of the Public Utilities Code is amended to
read:
120220.
The board may make contracts and enter into stipulations of any
nature whatsoever, either in connection with eminent domain
proceedings or otherwise, including, without limiting the generality
of the foregoing, contracts and stipulations to indemnify and save
harmless, to employ labor, and to do all acts necessary and
convenient for the full exercise of the powers granted in this
division.
SEC. 8. Section 120220.5 is added to the Public Utilities Code, to
read:
120220.5.
The board may provide and maintain by contract with a public
agency or by other means, a security force to enforce its
regulations, to preserve and protect any public transit system or
project financed pursuant to this division, and to preserve and
protect the public peace, health, and safety with respect to its
system or projects. Alternatively, the board may contract with a
private patrol operator licensed pursuant to Chapter 11.5 (commencing
with Section 7580) of Division 3 of the Business and Professions
Code, with the county sheriff and municipal police departments within
the areas described in Section 120054, and with other transit
development boards for security, police, and related services.
SEC. 9. Section 120222 of the Public Utilities Code is repealed.
SEC. 10. Section 120222 is added to the Public Utilities Code, to
read:
120222.
(a) The Legislature finds and declares that a compelling interest
exists in ensuring that all federal, state, local, and private funds
available to the board are captured and used in a timely manner. In
order to maximize the use of federal, state, local, and private funds
and to maintain a competitive posture in seeking supplemental
federal funds, the board shall have the authority to establish and
use a flexible contracting process to maximize its efficient use of
public funds.
(b) Except in cases when an article of a specified brand or trade
name is the only article that will properly meet the needs of the
board or in an emergency declared by the vote of two-thirds of the
membership of the board, all contracts for the acquisition or lease
of materials, supplies, or equipment in an amount of one hundred
thousand dollars ($100,000), or in excess of that amount as
authorized by the board, shall be made or entered into with the
lowest responsible bidder meeting specifications. For purposes of
determining the lowest bid, the amount of sales tax shall be excluded
from the total amount of the bid. When the expected purchase amount
of the contract exceeds five thousand dollars ($5,000) and does not
exceed one hundred thousand dollars ($100,000), the board shall seek
a minimum of three quotations, either written or oral, to permit
comparison of prices and other terms.
(c) Except in cases of an emergency declared by the vote of
two-thirds of the membership of the board, the board shall for all
contracts for the acquisition of services that exceed one hundred
thousand dollars ($100,000), that will not be performed by an entity
described in Section 120221.5, and that are not within the category
of services defined in Section 4525 of the Government Code, solicit
bids in writing and award the contract in a competitive procurement
process that is in the best interest of the board, including, but not
limited to, a negotiated procurement that may or may not evaluate
price as a consideration. When the expected amount of the service
contract exceeds five thousand dollars ($5,000) and does not exceed
one hundred thousand dollars (100,000), the board shall seek a
minimum of three quotations, either written or oral, to permit
comparison of prices and other terms.
(d) The board shall award contracts for architectural, landscape
architectural, engineering, environmental, land surveying services,
and construction project management services that are in excess of
one hundred thousand dollars ($100,000) in accordance with the
provisions of Chapter 10 (commencing with Section 4525) of Division 5
of Title 1 of the Government Code.
(e) Notwithstanding any other provisions of this chapter, the
board may use any procurement method authorized for state or local
agencies under state or federal law, including, but not limited to, a
competitive negotiation process in accordance with the provisions of
Article 7.5 (commencing with Section 20216) of Chapter 1 of Part 3
of Division 2 of the Public Contract Code. The board shall maintain
acquisition and contracting guidelines and comply with those
guidelines in the procurement of all goods and services.
(f) Provisions in any federally funded contract concerning
disadvantaged business enterprises that are in accordance with the
request for proposals shall not be subject to negotiation with the
successful bidder.
SEC. 11. Section 120224.1 of the Public Utilities Code is amended
to read:
120224.1.
(a) Upon determining that immediate remedial measures to avert or
alleviate damage to, or to repair or restore damaged or destroyed
property of, the board are necessary in order to insure that the
facilities of the board are available to serve the transportation
needs of the general public or to comply with any state or federal
regulation with respect to the operation of public transportation
services, and upon determining that available remedial measures,
including procurement in compliance with Sections 120222, and 120223,
are inadequate, the general manager or chief executive officer may
authorize the expenditure of money previously appropriated by the
board specifically for the direct purchases of goods and services,
without observance of the provisions of those sections.
(b) The general manager or chief executive officer, after the
expenditure authorized under subdivision (a) has been made, shall
submit to the board a full report explaining the necessity for that
action.
SEC. 12. Section 120224.3 of the Public Utilities Code is amended
to read:
120224.3.
Notwithstanding Section 120222, the board may direct the purchase
of any supply, equipment, or materials without observance of any
provision requiring contracts, bids, or advertisements upon a finding
by two-thirds of all members of the board that there is only a
single source of procurement therefor and that the purchase is for
the sole purpose of duplicating, repairing, or replacing supply,
equipment, or materials that are in use, including upgrades or
migrations of proprietary intellectual property.
SEC. 13. Section 120224.4 of the Public Utilities Code is amended
to read:
120224.4.
(a) A person who submits, or who plans to submit, a proposal in
response to a procurement solicitation may protest any acquisition
conducted in accordance with Sections 120222 and 120223 as follows:
(1) Protests based on the content of the procurement solicitation
shall be filed with the board within 10 calendar days after the
procurement solicitation is first advertised. The general manager or
the chief executive officer, or the designee of the general manager
or chief executive officer, shall issue a written decision on the
protest prior to opening of the procurement solicitation. A protest
may be renewed by refiling the protest with the board within 15
calendar days after the mailing of the notice of the intent to award.
(2) Any bidder may protest the intent to award on any ground not
based upon the content of the procurement solicitation by filing a
protest with the board within 15 calendar days after the mailing of
the notice of the intent to award.
(3) Any protest shall contain a full and complete written
statement specifying in detail the grounds of the protest and the
facts supporting the protest. Protestors shall have an opportunity to
appear and be heard before the board prior to the opening of the
procurement solicitation in the case of protests based on the content
of the procurement solicitation, or prior to final award in the case
of protests based on other grounds or the renewal of protests based
on the content of the procurement solicitation.
(b) The decision of the protest by the board shall be in writing
and constitutes a final administrative decision for purposes of
judicial review pursuant to Section 1094.6 of the Code of Civil
Procedure.
SEC. 14. Section 120260 of the Public Utilities Code is amended to
read:
120260.
The board shall provide input to the San Diego Association of
Governments on the planning and construction of exclusive public mass
transit guideways in the area under its jurisdiction in conformance
with the California Transportation Plan and the regional
transportation plan developed pursuant to Chapter 2.5 (commencing
with Section 65080.1) of Division 1 of Title 7 of the Government
Code.
SEC. 15. Section 120262 of the Public Utilities Code is repealed.
SEC. 16. Section 120264 of the Public Utilities Code is amended to
read:
120264.
The transit development board may acquire, construct, maintain,
and operate (or let a contract in conformity with state labor
laws and subdivision (d) of Section 120508 to operate) public
transit systems and related transportation facilities and services as
it deems necessary to carry out the purposes of this division in
conformity with, and to the extent provided in, the San Diego
Regional Transportation Consolidation Act (Chapter 3 (commencing with
Section 132350) of Division 12.7). The various systems, facilities,
and services may be administered by the transit development board
under the name of the San Diego Metropolitan Transit System.
SEC. 17. Section 120300 of the Public Utilities Code is amended to
read:
120300.
The San Diego Association of Governments that includes the area of
the board shall be responsible for long-term transportation system
planning in that area.
The planning shall be directed to, among other things:
(a) Identification of corridors of travel.
(b) Definition of the transportation problems of each corridor.
(c) Definition of the transportation goals for each corridor.
(d) Definition of land use goals, with the concurrence of affected
local jurisdiction, to be supported by transportation investment
decisions in each corridor.
(e) Recommendation of priority corridors for guideway development.
(f) Recommendation of the mix of alternative transportation modes
appropriate for deployment in light of transportation needs and goals
for each corridor.
(g) Recommendation of environmental, economic, energy, and social
policies that should guide transportation investment decision within
corridors.
SEC. 18. Section 120301 of the Public Utilities Code is amended to
read:
120301.
With respect to the area under its jurisdiction, the board shall
be responsible for operational planning, which includes all planning
and monitoring necessary for the operation, implementation,
modification, and elimination of public transportation services
operated by the board.
SEC. 19. Section 120302 of the Public Utilities Code is amended to
read:
120302.
Notice of the time and place of the public hearing by the board
shall be published pursuant to Section 6061 of the Government Code,
and shall be published not later than the 15th day prior to the date
of the hearing.
The materials for the public hearing shall be available for public
inspection at least 15 days prior to the hearing.
SEC. 20. Section 120350 of the Public Utilities Code is repealed.
SEC. 21. Section 120350 is added to the Public Utilities Code, to
read:
120350.
The provisions of Article 6 (commencing with Section 120350) and
Article 7 (commencing with Section 120400) shall be implemented in
conformity with, and subject to, the San Diego Regional
Transportation Consolidation Act (Chapter 3 (commencing with Section
132350) of Division 12.7).
SEC. 22. Section 120351 of the Public Utilities Code is amended to
read:
120351.
The designated recipient for purposes of Chapter 53 (commencing
with Section 5301) of Subtitle III of Title 49 of the United States
Code shall be the San Diego Association of Governments, and it shall
be responsible for allocating federal transit funds to eligible
recipients. The board shall prepare the program of projects for
transit capital and operating assistance projects in its area of
jurisdiction for receipt of federal funds. The San Diego Association
of Governments shall allocate the funds to the board to fund its
projects. If a dispute regarding the allocation of funds arises
between the board and the North San Diego County Transit Development
Board, the two boards shall negotiate in good faith to resolve the
dispute. If the negotiation does not result in resolving the dispute
prior to adoption of the annual regional transportation improvement
program, the San Diego Association of Governments shall resolve the
dispute and allocate the funds accordingly.
SEC. 23. Section 120352 of the Public Utilities Code is amended to
read:
120352.
The board may receive any money pursuant to Chapter 53 (commencing
with Section 5301) of Subtitle III of Title 49 of the United States
Code for mass transit purposes, and reallocate that money for those
purposes in accordance with federal law and rules and regulations.
SEC. 24. Section 120353 of the Public Utilities Code is repealed.
SEC. 25. Section 120355 of the Public Utilities Code is amended to
read:
120355.
The board may take all action necessary to obtain funding
available pursuant to Chapter 53 (commencing with Section 5301) of
Subtitle III of Title 49 of the United States Code.
SEC. 26. Section 120400 of the Public Utilities Code is amended to
read:
120400.
The board may accept contributions, grants, or loans from any
public agency or the United States or any department,
instrumentality, or agency thereof, for the purpose of financing the
planning, acquisition, construction, or operation of public
transportation services, and may enter into contracts and cooperate
with, and accept cooperation from, any public agency or the United
States, or agency thereof, in the planning, acquisition,
construction, or operation of any of those public transportation
services in accordance with any legislation that Congress or the
Legislature of the State of California may have heretofore adopted or
may hereafter adopt, under which aid, assistance, and cooperation
may be furnished by the United States or any public agency in the
planning, acquisition, construction, or operation of any of those
public transportation services. The board may do any and all things
necessary in order to avail itself of this aid, assistance, and
cooperation under any federal or state legislation now or hereafter
enacted.
SEC. 27. Section 120452 of the Public Utilities Code is amended to
read:
120452.
Violation of any ordinance, rule, or regulation enacted by the
board prohibiting the unauthorized entering into, climbing upon,
holding onto, or in any manner attaching oneself to vehicles operated
upon exclusive public mass transit guideways owned or controlled by
the board, is an infraction punishable by a fine not exceeding fifty
dollars ($50), except that a violation by a person, after the first
conviction under this section, is a misdemeanor punishable by a fine
not exceeding five hundred dollars ($500) or by imprisonment in a
county jail not exceeding six months, or by both that fine and
imprisonment.
SEC. 28. Section 120508 of the Public Utilities Code is amended to
read:
120508.
(a) This article also applies to the employee relations of
employees of a nonprofit entity that operates public mass transit
services and that is solely owned by the board. For employee
relations regarding these employees, the term "board," as used in
this article, means the board and the board of directors of the
nonprofit entity as the joint employer of the employees.
(b) The board may, at any time in its sole discretion, abolish any
nonprofit entity or merge any nonprofit entity with another
nonprofit entity or with the board.
(c) Upon abolishing or merging a nonprofit entity pursuant to
subdivision (b), the board shall become the sole employer of the
employees of the nonprofit entity and shall assume sole
responsibility to observe all existing labor contracts established
and maintained pursuant to this article.
(d) Except as may be agreed upon through the collective bargaining
process, nothing in this section shall prohibit or limit the right
of the board to contract with common carriers of persons operating
under a franchise, license, or other agreement. Any provision in an
existing collective bargaining agreement made applicable to the board
in its capacity as a joint employer with a nonprofit entity pursuant
to subdivision (a) or sole successor employer pursuant to
subdivision (b) that is intended to prohibit or limit the right of a
nonprofit entity to contract out covered bargaining unit services to
another common carrier of persons shall not be binding upon the board
with respect to any contract for services entered into, renewed, or
extended by the board prior to January 1, 2004, and thereafter shall
apply only to contracts for bargaining unit services covered by an
existing collective bargaining agreement assumed by or binding
upon the board as a joint employer unless otherwise
agreed upon through the collective bargaining process.
SEC. 29. Section 120540 of the Public Utilities Code is amended to
read:
120540.
It shall be a condition of the operation of any transit facility
owned or controlled by the board that Section 5333 of Title 49 of the
United States Code shall be given effect to the extent required by
law.
SEC. 30. Section 120630 of the Public Utilities Code is amended to
read:
120630.
The board may issue bonds, payable from revenue of any facility or
enterprise to be acquired or constructed by, or on behalf of, the
board, in the manner provided by the Revenue Bond Law of 1941
(Chapter 6 (commencing with Section 54300) of Part 1 of Division 2 of
Title 5 of the Government Code), and all of the provisions of that
law are applicable to the board.
SEC. 31. Section 120631 of the Public Utilities Code is amended to
read:
120631.
The board is a local agency within the meaning of the Revenue Bond
Law of 1941 (Chapter 6 (commencing with Section 54300) of Part 1 of
Division 2 of Title 5 of the Government Code). The term "enterprise,"
as used in the Revenue Bond Law of 1941, for all purposes of this
article, includes the transit system or any or all transit facilities
and all additions, extensions, and improvements thereto authorized
to be acquired, constructed, or completed by the board.
The board may issue revenue bonds under the Revenue Bond Law of
1941 for any one or more transit facilities authorized to be
acquired, constructed, or completed by, or on behalf of, the board
or, in the alternative, the board may issue revenue bonds under the
Revenue Bond Law of 1941 for the acquisition, construction, and
completion of any one of those transit facilities.
Nothing in this article prohibits the board from availing itself
of, or making use of, any procedure provided in this chapter for the
issuance of bonds of any type or character for any of the transit
facilities authorized hereunder, and all proceedings may be carried
on simultaneously or, in the alternative, as the board may determine.
SEC. 32. Section 120682 is added to the Public Utilities Code, to
read:
120682.
The board or any nonprofit corporation of which the board is the
sole member, may issue pension obligation bonds.
SEC. 33.
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 are the
result of a program for which legislative authority was requested by
that local agency or school district, within the meaning of Section
17556 of the Government Code and Section 6 of Article XIII B of the
California Constitution.
SEC. 34.
This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to make needed changes to the San Diego Metropolitan
Transit Development Board as soon as possible, it is necessary that
this act take effect immediately.