Second Regular Session Sixty-eighth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 12-0160.04 Jason Gelender x4330 SENATE BILL 12-179 SENATE SPONSORSHIP Schwartz, King K., Bacon, Heath, Hudak HOUSE SPONSORSHIP Massey, Senate Committees House Committees Education A BILL FOR AN ACT Concerning governmental oversight of public school capital construction projects. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) On and after July 1, 2012, the bill prohibits an individual who has any financial interest in a potential or funded "Building Excellent Schools Today Act" (BEST) project from serving as a member of the public school capital construction assistance board (BEST board). The bill requires the BEST board to include information regarding assistance fund revenues and the assistance fund balance in the annual report that it presents to specified committees of the general assembly and to make the report available electronically on the web site of the department of education. Under current law, the state division of fire safety (division) generally adopts building standards for public school capital construction, conducts plan reviews, permitting, and inspections for public school buildings and structures, and issues certificates of occupancy for the buildings and structures. The division may, however, qualify a local building department to conduct those activities within the department's jurisdiction, and a school board, a charter school, or the state charter school institute may go to a prequalified appropriate building department rather than the division for required plan reviews, permitting, inspections, and certificate of occupancy issuance. An appeals board considers appeals of the division's administrative decisions. The bill: Encourages the division to prequalify appropriate building departments whenever feasible and requires a school board that has buildings or structures only within the territory of one municipality or only within the unincorporated territory of one county, a charter school, or the state charter school institute to go to a prequalified appropriate building department, if one is available, in lieu of the division for required plan reviews, permitting, inspections, and certificate of occupancy issuance; Adds the director of the division of public school capital construction assistance in the department of education (BEST division) to the appeals board and clarifies the scope of the board's powers; Requires the BEST division to conduct supplemental plan reviews for any BEST-funded public school capital construction project for which a prequalified appropriate building department, rather than the division, is conducting necessary plan reviews, issuing building permits, conducting inspections, and issuing a certificate of occupancy; and Requires the BEST division to ensure that the owner's representative for any BEST-funded project to be constructed pursuant to a design-build contract is wholly independent of the contractor. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 22-32-124, amend (2) (a) (I) (B), (2) (a) (II), (2) (a) (III), (2) (a) (IV), (2) (a) (V), and (2) (a) (VI) as follows: 22-32-124. Building codes - zoning - planning - fees - rules - definitions. (2) (a) (I) (B) If inspections are not completed and a building requires immediate occupancy, and if the board of education, state charter school institute, or charter school has passed the appropriate inspections that indicate there are no life safety issues, the division or an appropriate building department prequalified by the division pursuant to subparagraph (II) of this paragraph (a) may issue a temporary certificate of occupancy. The temporary certificate of occupancy shall expire ninety days after the date of occupancy. If no renewal of the temporary certificate of occupancy is issued or a permanent certificate of occupancy is not issued, the building shall be vacated upon expiration of the temporary certificate. The division shall enforce this sub-subparagraph (B) pursuant to section 24-33.5-1213, C.R.S. (II) Pursuant to a memorandum of understanding between the appropriate building department and the division, the division may prequalify an appropriate building department to conduct the necessary plan reviews, issue building permits, conduct inspections, issue certificates of occupancy, and issue temporary certificates of occupancy pursuant to sub-subparagraph (B) of subparagraph (I) of this paragraph (a), to ensure that a building or structure constructed pursuant to subsection (1) or (1.5) of this section has been constructed in conformity with the building and fire codes adopted by the director of the division, and to take enforcement action. Nothing in the memorandum of understanding shall be construed to allow the building department to take enforcement action other than in relation to the building and fire codes adopted by the division. An appropriate building department shall meet certification requirements established by the division pursuant to section 24-33.5-1213.5, C.R.S., prior to prequalification. In lieu of obtaining necessary plan reviews, inspections, building permits, and certificates of occupancy from the division, an affected board of education that has buildings or structures only within the territory of one municipality or only within the unincorporated territory of one county, the state charter school institute, or a charter school may, at its own discretion, opt to shall use a prequalified building department, if any, that has jurisdiction over the territory that includes the affected building or structure and that has entered into a memorandum of understanding with the division as the delegated authority. An affected board of education that has buildings or structures within the territory of more than one municipality, within the territory of a municipality and within the unincorporated territory of a county, or within the unincorporated territory of more than one county may, at its own discretion, opt to use such a prequalified building department that has jurisdiction over the territory that includes the affected building or structure. If a building department conducts an inspection, the building department shall retain the inspection records for two years after the final certificate of occupancy is issued. The fees charged by the building department shall cover actual, reasonable, and necessary costs. For purposes of this section, "appropriate building department" means the building department of a county, town, city, or city and county and includes a building department within a fire department. (III) The division or an appropriate building department prequalified by the division shall cause copies of the building plans to be sent to the appropriate fire department for review of fire safety issues. The fire department shall review the building plans, determine whether the building or structure is in compliance with the fire code adopted by the director of the division, and respond to the division or the appropriate building department within twenty business days; except that the fire department may request an extension of this time from the director of the division on the basis of the complexity of the building plans. (IV) If the fire department declines to perform the plan review or any subsequent inspection, or if no certified fire inspector is available, the division or the appropriate building department prequalified by the division shall perform the plan review or inspection. As used in this section, unless the context otherwise requires, "certified fire inspector" has the same meaning as set forth in section 24-33.5-1202 (2.5), C.R.S. (V) If the building or structure is in conformity with the building and fire codes adopted by the director of the division, and if the appropriate fire department, appropriate building department prequalified by the division, or the division certifies that the building or structure is in compliance with the fire code adopted by the director of the division, the division or the appropriate building department shall issue the necessary certificate of occupancy prior to use of the building or structure by the school district or by the institute charter school. The division is authorized to charge a fee to cover the actual, reasonable, and necessary costs of the inspections of buildings and structures. The amount of the fee shall be determined by the director of the division by rule, on the basis of the direct cost of providing the service. (VI) If the division authorizes building code inspections by a third-party inspector pursuant to subparagraph (I) of this paragraph (a) or authorizes building code plan reviews and inspections by an appropriate building department pursuant to subparagraph (II) of this paragraph (a), the plan reviews and inspections shall be in lieu of any plan reviews and inspections made by the division; except that this subsection (2) shall not be construed to relieve the division of the responsibility to ensure that the plan reviews and inspections are conducted if the third-party inspector or appropriate building department does not conduct the plan reviews and inspections. Nothing in this subsection (2) shall be construed to require a county, town, city, city and county, or fire department to conduct building code plan reviews and inspections except as agreed to by the division and an appropriate building department in a memorandum of understanding entered into pursuant to subparagraph (II) of this paragraph (a). SECTION 2. In Colorado Revised Statutes, 22-43.7-105, add (2) (a.5) as follows: 22-43.7-105. Division of public school capital construction assistance - creation - director - function - powers and duties. (2) The function of the division is to provide professional and technical support to the board as the board exercises its powers and duties as specified in this article so that financial assistance can be provided for public schools in an equitable, efficient, and effective manner. In furtherance of its function, the division, subject to board direction, has the following powers and duties: (a.5) (I) To verify compliance with the public school facility construction guidelines established pursuant to section 22-43.7-107 by conducting supplemental plan reviews for any public school capital construction project for which: (A) The board has awarded financial assistance; and (B) A prequalified appropriate building department, as described in section 22-32-124 (2) (a) (II), rather than the division of fire safety in the office of preparedness, security, and fire safety, in the department of public safety, is conducting necessary plan reviews, issuing building permits, conducting inspections, and issuing a certificate of occupancy. (II) For every capital construction project for which the board has awarded financial assistance that is to be constructed pursuant to a design-build contract, to approve the applicant's owner's representative. The board shall approve the applicant's owner's representative only if the owner's representative is wholly independent of the design-build contractor. SECTION 3. In Colorado Revised Statutes, 22-43.7-106, amend (1) (b) as follows: 22-43.7-106. Public school capital construction assistance board - creation - general powers and duties - rules. (1) (b) Members of the board shall serve for terms of two years and may serve up to three consecutive terms; except that the initial terms of one of the members appointed by the state board, one of the members appointed by the governor, and the members appointed by the president of the senate and the minority leaders of the house of representatives and the senate shall be one year. On and after July 1, 2012, an individual who has any personal or corporate financial interest in a capital construction project for which an applicant is seeking or has received financial assistance is ineligible to serve as a member of the board. Any member serving on the board before July 1, 2012, who has such a financial interest shall cease to be a board member on July 1, 2012, and the appropriate appointing authority shall appoint a new member to the board as soon as feasible thereafter. The appointing authority for a member may remove the member for any cause that renders the member incapable of discharging or unfit to discharge the member's duties. The appropriate appointing authority shall fill any vacancy in the membership of the board by appointment, and a member appointed to fill a vacancy shall serve until the expiration of the term for which the vacancy was filled. Members of the board shall serve without compensation but shall receive reimbursement for travel and other necessary expenses actually incurred in the performance of their duties. The board shall elect a chair at its initial meeting. SECTION 4. In Colorado Revised Statutes, 22-43.7-111, amend (1) introductory portion, (1) (c), (1) (d) (IV), and (2); and add (1) (e) as follows: 22-43.7-111. Reporting requirements - auditing by state auditor. (1) No later than February 15, 2010, and no later than each February 15 thereafter, the board shall present a written report to the education and finance committees of the house of representatives and the senate, or any successor committees, regarding the provision of financial assistance to applicants pursuant to this article. The board shall make the report available electronically on the web site of the department as soon as is feasible after it presents the report. The report shall include, at a minimum: (c) A summary of any differences between the common physical design elements and characteristics of the highest performing schools in the state and the lowest performing schools in the state as measured by academic productivity measures such as the Colorado student assessment program created in part 4 of article 7 of this title or Colorado ACT results; and (d) A list of the financial assistance applications for public school facility capital construction that were denied financial assistance during the prior fiscal year that includes for each project: (IV) A summary of the reasons why the board or the state board denied financial assistance for the project; and (e) Statements of: (I) The aggregate amount and amount by source of the moneys credited to the assistance fund during the prior fiscal year; and (II) The balance of the assistance fund at the end of the prior fiscal year. (2) No later than February 15, 2014, and no later than each February 15 thereafter, the board shall prepare and make available electronically on the web site of the department a report to the taxpayers of the state regarding the provision of financial assistance to applicants pursuant to this article during the five prior fiscal years. The report shall include, at a minimum, the information specified in subsection (1) of this section for each of the five prior fiscal years and an aggregation of any of such information that can feasibly be aggregated for the full five-year period. SECTION 5. In Colorado Revised Statutes, 24-33.5-1203, amend (1) (p) as follows: 24-33.5-1203. Duties of division. (1) The division shall perform the following duties: (p) Conduct construction plan reviews and inspect public school and junior college buildings and structures and enforce the codes adopted in accordance with sections 22-32-124 (2) and 23-71-122 (1) (v), C.R.S., and sections 24-33.5-1213 and 24-33.5-1213.3. The general assembly encourages the division, in performing this duty, to prequalify appropriate building departments to conduct construction plan reviews and inspections of public school buildings and structures as authorized by section 22-32-124 (2) (a) (II), C.R.S., in lieu of conducting the reviews and inspections itself whenever feasible. SECTION 6. In Colorado Revised Statutes, 24-33.5-1213.7, amend (1) (a), (1) (b), (1) (c), and (5) as follows: 24-33.5-1213.7. Board of appeals. (1) (a) There is hereby created in the division a board of appeals, referred to in this section as the "board of appeals". The board of appeals shall consist of seven members appointed by the executive director and, as an ex officio member with full participation and voting rights, the director of the division of public school capital construction assistance in the department of education. (b) The members of the board of appeals shall be persons who are qualified by experience and training to pass upon matters pertaining to building construction and, in addition to the director of the division of public school capital construction assistance in the department of education, shall include one representative nominated by each of the Colorado association of school boards, the Colorado association of school executives, the Colorado chapter of the international code council, the fire marshal's association of Colorado, the Colorado state fire chiefs' association, the rocky mountain chapter of the council for educational facilities facility planners international, and Colorado counties, incorporated, or from a successor to any of these organizations representing comparable interests. (c) The members of the board of appeals shall serve at the pleasure of the executive director; except that the director of the division of public school capital construction assistance in the department of education shall serve for as long as he or she remains the director of the division. For the initial board, the executive director shall appoint one member for a one-year term, two members for two-year terms, and three members for three-year terms. Subsequent appointments shall be for three-year terms; except that an appointment to fill a vacancy on the board shall be for the remainder of the predecessor's term. (5) In addition to hearing appeals as provided in this section, the board of appeals shall advise the director in promulgating rules and enacting standards for the public school construction and inspection program. Such advice may extend to rules and standards regarding contracting procedures and contract forms for both ordinary and design-build contracts. SECTION 7. Effective date. This act takes effect July 1, 2012. SECTION 8. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.