© 2011 Dannis Woliver Kelley This training is provided for educational, compliance and loss-prevention purposes only and, absent the express, prior agreement of DWK, does not create or establish an attorney-client relationship. The training is not itself intended to convey or constitute legal advice for particular issues or circumstances. Contact a DWK attorney for answers to specific questions. West Contra Costa Unified School District Complying with SB 293: How do Districts retain more than 5% of the Contract Price for Retention? Presenter: Deidree Sakai

© 2011 Dannis Woliver Kelley 2 What is SB 293? Senate Bill No. 293 (Padilla) amends statutes relating to retention, prompt payment requirements for general contractors, notice by claimants on payment bonds on contracts entered into after January 1, SB 293 sunsets on January 1, 2016, unless extended by the legislature.

© 2011 Dannis Woliver Kelley 3 How does SB 293 affect school districts? 5% retention on public works projects ─ Retention proceeds in excess of 5% of the progress payment/contract price are prohibited except under specified conditions. (Pub. Contract Code, § 7201.) ─ Existing law provides that the percentage of retention proceeds withheld cannot exceed the percentage specified in the contract between the public entity and the original contractor. Current Standard: 10%

© 2011 Dannis Woliver Kelley 4 Complying with the Conditions for Retention Exceeding 5% Retention may exceed 5% on specific projects where the governing body of the local public entity, or its designee, has approved or ratified by a majority vote during a properly noticed and normally scheduled public hearing prior to bid that the project is substantially complex and therefore requires a higher retention amount than 5%, and includes this finding and the actual retention amount in the bid documents. (See Pub. Contract Code, § 7201(b)(4).)

© 2011 Dannis Woliver Kelley 5 Steps for Complying with SB 293 Conditions Establish Criteria applicable to all school construction projects for determination of whether a specific project is “substantially complex”. Delegate authority to make finding to Superintendent or Superintendent’s designee. Adopt resolution at properly noticed, normally scheduled public hearing prior to bid. Delegee makes finding whether specific projects are substantially complex based on the resolution. Include the finding and actual retention amount in Notice to Bidders, General Conditions, Special Conditions, etc. Board ratifies the designee’s actions when it awards or ratifies the contract.

© 2011 Dannis Woliver Kelley 6 Why are school construction projects substantially complex? In comparison with other public works projects, school construction projects are: ─ Subject to higher safety standards; ─ Subject to higher levels of testing and inspection; ─ Subject to design approval by Division of State Architect; and/or ─ Have specialized systems and/or safety measures included to protect students, teachers, staff and/or visitors.

© 2011 Dannis Woliver Kelley 7 Deidree Y.M.K. Sakai Thank you for your time and attention!