Victorville Using Its Subsidiary H2O District’s Authority To Build Homeless Facility

After a series of legally questionable and pointedly ironic actions, maneuvers and statements along with an eleventh-hour delay that threatened to prevent the project from going forward altogether, the City of Victorville on Thursday committed to paying $4.828 million to a City of Industry-based company to undertake and complete the first phase of the Wellness Center homeless shelter.
Combining what city officials refer to as a “low-barrier” emergency shelter, recuperative care facility, medical clinic, interim housing, and support services venue, Victorville is purposed to build the Wellness Center on 4.5-acres of city-owned land at 16902 First Street. By low-barrier, city officials mean that those who will be eligible to use the facility will need jump through few or no hoops.
Victorville among county cities over the last decade has registered the second highest total of homeless living within its confines, finishing behind only the City of San Bernardino for that dubious distinction when annual counts of the dispossessed are made every February.
In San Bernardino there are three comprehensive homeless shelters, one known as Mary’s Village, which features 85 beds for homeless men, and which is run by the same Catholic social services missionaries who operate Veronica’s Home of Mercy I and Veronica’s Home of Mercy II, each providing 40 beds and other support and social service for homeless women.
There was talk as early as 2018 of Victorville replicating for its homeless population at least some of what has been done in San Bernardino, and by 2019, those discussions had coalesced around the concept of a homeless complex, which evolved into the plans for the Victorville Wellness Center.
The cost of such an undertaking was steep and therefore prohibitive without a sponsor or government subsidization. The city made a rash of grant applications. Largely on the basis of the substantial and persistent homeless problems in Victorville, California’s Department of Housing & Community Development came through with a grant in 2020, but city officials, believing they could not meet the performance deadlines specified, elected not to actuate receipt of the money. Last year, the city was again chosen as a recipient of a $28 million Homekey Grant, which was to cover upwards of 90 percent – or $23.6 million – of the construction cost of a homeless residential and services facility plus $4.4 million to operate it once the facility is built.
There was considerable backslapping and self-congratulations at Victorville City Hall when the announcement of the awarding of the grant came on December 15.
There were, however, three conditions to the grant award in December which taken together threaten to trip up city staff. The first is the requirement in California law as well as within the Victorville City Code that public works projects be subjected to a competitive bid process. The second is the requirement in both federal and state law – known as the Davis-Bacon Act and The California Prevailing Wage law – that construction workers on public projects be paid union scale wages for their work. The third was a strict timetable by which the City of Victorville had to perform on the Victoria Wellness Center project in order to collect the $28 million in Homekey Grant funding. Given the December 15, 2021 awarding of the grant, the city had eight months – until August 15, 2022 – to expend the $23.6 million in construction funds. It further had a construction completion deadline of December 15, 2022, and a 90 day deadline after the project completion to have homeless from the community occupying the center.
It was at that point that Victorville City Manager Keith Metzler failed to act with alacrity so that the city could meet the California Department of Housing & Community Development’s timelines and stay within the bounds of state statutes and local code. Instead of immediately moving to secure bids on the project, he temporized. Indeed, he failed entirely to have staff solicit bids for doing the construction work on the project.
Even as the awarding of the grant was announced, the city already faced a challenge in meeting the three deadlines. This week, three full months had elapsed without the city obtaining or even seeking bids on the project. To make up that gap, city staff turned to a public contractor-registering data base kept five states away to find a company that would do the work. Selection of a contractor from that data base, the State of Minnesota’s clearinghouse for contractors that goes by the identifier Sourcewell, does not meet the State of California’s criteria for an open bidding process. Nor does the Victorville Municipal Code allow a contract above the $500,000 threshold to be awarded by means of a cooperative purchasing service such as Sourcewell.
The city had a way of working around those limitations that consisted of getting four-fifths of its statutory five-member council to sign off on using the cooperative purchasing service route in meeting the competitive bid requirement. That, however, would prove problematic.
In March 2021, the city council had removed Rita Ramirez from the city council after Councilwoman Liz Becerra alleged Ramirez was no longer living in Victorville as a consequence of her attempting to recover at her son’s home in Twentynine Palms from a progressive triple amputation of her foot, ankle and lower leg in 2020. Efforts to replace Ramirez by appointment thereafter failed, as the two remaining Republicans on the council – Becerra and Mayor Deborah Jones – could not come to terms with the two remaining Democrats on the council, Leslie Irving and Blanca Gomez, on whom to appoint. The council has remained at four-fifths strength for over a year.
Gomez, who was first elected to the city council in 2016 and is at present its longest serving member, was at odds with her council colleagues from shortly after she was sworn into office. A Democrat, she clashed with then-Mayor Gloria Garcia, a Republican, and the remaining members of the council – Jim Kennedy, Jim Cox and Eric Negrete – all of whom were members of the GOP, as well. Gomez, a social justice and political change advocate, also fell out of sorts with city staff, as she had a somewhat imperfect understanding of the extent and reach of local government, and her belief that city employees should meet her expectations were regularly thwarted, particularly since those employees were ultimately answerable to a city manager who was himself answerable to the four members of the council at odds with her. There followed a marginal improvement in the workability of the city council when Ramirez, a Democrat, was elected in 2018 to replace the Republican Negrete. In 2020, when Gomez was reelected and Irving, another Democrat, was elected to the council, Victorville had its first majority Democratic city council in its then 58-year history. It seemed that Gomez might come into her own as a civic leader. But the hold that the city’s Republican establishment had on the machinery of government was substantial. Despite Gomez being the senior member of the council and thus being due under the city’s well-established tradition to be rotated into the mayoralty, she was denied appointment as mayor. In large measure, this was a byproduct of what her council colleagues and city staff deem to be here contrariness and enmity to the Victorville establishment. In making that case, her opponents have frequently referenced her disrespect for rules and protocol. In response, Gomez has long maintained that it is not she who has failed to abide by established rules but rather her political rivals. Gomez’s discomfiture intensified with the orchestrated sacking of Ramirez, which Gomez opposed and which brought to a close after less than three months the historic advancement of Democrats into control of the council.
At this week’s regular council meeting on April 15, after having delayed for three months taking any meaningful steps toward getting the Victoria Wellness Project moving and construction under way to meet the California Department of Housing & Community Development’s deadlines, city staff had prepared for the council an item by which the city could initiate work on the project by a vote to award the construction contract to City of Industry-based Angeles Contractor Inc. and simultaneously sign off on Angeles Contractor Inc. carrying out the first phase of the project for $4.828 million.
Because the law specifically requires a four-fifths vote and four votes in total to allow the selection of a contractor from a roster of contractors provided by a cooperative purchasing service to substitute for an open bid process, all four of the city council members on Tuesday night needed to assent to the hiring of Angeles.
Gomez, having been chastised repeatedly for not adhering to protocol and tradition and the rule and laws applicable to her status as a public official, was at that point in a position of putting on display the failure of the Victorville establishment to adhere to the rules. Pointing out that state law required an open bidding process for a construction project such as the one Angeles was about to embark on and that the Victorville Municipal Code would not allow a selection from a cooperative purchasing service’s list of contractors to substitute for a competitive bid, Gomez voted against conferring the contract on Angeles.
There was a degree of irony or perhaps even double irony in the moment. It is generally Gomez who is the standard bearer for the movement to assist the downtrodden. It is her political rivals who dismiss her as an insufferable bleeding heart who puts the interests of the dysfunctional and indolent who are incapable of paying for anything ahead of the interests of the hardworking and motivated members of the community who are being imposed upon to bear the costs of whatever social welfare program is being proposed by Gomez and her band of do-gooders. Tuesday night and again on Thursday morning, she was the one obstructing one of the most energetic social welfare programs ever proposed for Victorville. It is generally the Victorville political establishment, currently led by Victorville Mayor Deborah Jones, who constantly decry Gomez’s efforts to steer around regulations, the rules of order, protocol and the law. Tuesday night, it was Gomez who was making an issue of the council majority’s readiness to cast aside the regulations which are intended to prevent the squandering of taxpayer dollars by adhering to the process of enlisting the lowest bidder to carry out public projects.
Despite efforts to emphasize that the project funding and thus the project were in jeopardy and pleas with her to temper her opposition, Gomez remained steadfast.
“This is something that has been hugely monumental for us as a city,” said City Manager Keith Metzler. “It’s the ultimate goal, once we are complete with this project … that we will have this as a permanent facility to address the needs of our homeless population.”
The waiving of the bidding requirements to grant Angeles Contractor Inc. the contract and initiate work by paying the company $4,827,947.76 for the first phase of the construction was not the only item relating to the Wellness Center on the agenda. There was action relating to an agreement with the Victor Valley Wastewater Authority with regard to the placement of a sewer pipe on the property; an agreement with ECORP Consulting, Inc. for an additional scope of work relating to environmental services associated with the construction of the Wellness Center, extending the term of the company’s work to December 31, 2022 and increasing ECORP’s cumulative remuneration from $115,975 to $239,475; and a professional services agreement for construction management on the project with Pacifica Services, Inc., in an amount not to exceed of $2,373,601.
When Gomez pressed Metzler on why there was no open bidding for the project work, Metzler detailed Assistant City Manager Jenele Davidson to respond.
“Normally, for a construction project of this size, we would go through a formal bidding requirement, that per our municipal code, and that usually takes at least six months,” Davidson said. “Due to the time constraints on this project and the funding source we have used, the Sourcewell cooperative purchasing process, which is somewhat unusual, we are asking the council to make certain findings that allow us to utilize that, due to the schedule and to the fact that we don’t believe there would be any additional benefit to going through that full-scale formal bidding process in this instance.”
Gomez specifically asked why the city had not moved rapidly in December to seek bids upon obtaining the grant.
“There have been a number of items we needed to finalize,” Davidson said in seeking to justify the delay. “Part of that was working through the state to get the standard agreement that is in process. The city did go through a formal RFP [request for proposal] process to select a construction manager. Even if the plans were in place back at that time, that would still be putting us into construction around June or July so that would still present quite a challenge.”
It is the city’s intention for the earthwork and utility installation to begin in April, followed by the initial phase of construction, to be followed by further phases of construction, according to staff. The earliest that the construction in earnest could begin, whether a traditional bidding arrangement or the Sourcewell method is used, is by June or July, it was indicated.
Mayor Deborah Jones asked, “Is it fair to say that we are doing this at the earliest possible time that it was reasonable for staff to bring this to the council?”
“Yes,” said Metzler.
“If we don’t approve this tonight, we have little to no hope of meeting the timeline and the restrictions set upon us by the state for the expenditure of the grant money?” the mayor said, more as a question than a statement.
“That’s correct, and effectively, the money that we agreed to receive would be jeopardized,” Metzler said.
There followed an effort by Metzler to explain that the city had received a state “allocation of funds in 2020” that could have been used to construct a slightly less energetic version of the homeless facility.
“At that time we had brought something similar,” Metzler said, adding that the city was then “relying on a Sourcewell type contract. We were actually contemplating a much different project in terms of construction type. But I will tell you that even had we a little more time in that first award that would have been an extremely unconventional way of moving forward with the construction project. I was personally very nervous because we didn’t necessarily have the traditional intellect that you have at least when you go through full scale design. So, when we made the decision after the first round of funding that we just literally could not make the deadline…  we would literally have to design and build at the same time while we’re on site. A lot of risk to go along with it, but the type back then, they were modulars, so that was believed to be a way to make it work quickly, but certainly not within the timeframe that was imposed upon the city at the time. So, we chose not to accept that money because it was too risky to accept that money, but what we did choose to do immediately after we turned that money down is we focused our efforts in the design. So we actually spent, relying on our POHA money, to actually bring on the architect much closer to a fully designed project, and we’re there now.”
Metzler did not bother to explain to the uninitiated what the acronym POHA refers to.
“So I would say, we’re a lot more knowledgeable to the point where when we were actually able to get solicitations for quotes on what it’s going to cost to build, we actually have a good basis in the design that’s already in place,” Metzler said. “So, with that being said, the award was announced in December, but we didn’t really receive draft contracts until the last couple of weeks, and we’ve been going back and forth and it wouldn’t have been the most responsible thing to do to start any sooner than having those contracts signed. We’ve been fortunate to time it where we’ve been signing the contracts, anticipating council’s approval in moving forward, and with the schedule we have in place, we actually believe with the approvals tonight we can actually meet the timeframes that are imposed by the state. The timeframes that we’re dealing with are slightly better than the timeframes we were dealing with before, but we’ve got to get moving if we’re going to take this project on and actually build it and really try to help address our homeless community’s needs.”
City staff’s assertions that using the established method of competitive bidding would at this point prove too time consuming and risk the city not achieving the milestones and deadlines specified in the California Department of Housing & Community Development’s conditions for the grant proved unpersuasive to Gomez. Indeed, Metzler’s elaboration on how the city had experienced the tight timeframes in 2020 and had elected at that point to back off only seemed to strengthen Gomez’s perception that staff should have been prepared to react more speedily this time around.
City officials did not do themselves any favors by withholding from the public the back-up documents relating to the item. They were not included in the full-scale agenda and its packet of accompanying documents posted to the city’s website. It was not clear whether those documents had been provided to Gomez.
The council vote on the items relating to the Wellness Center ended with a 3-to-1 vote in favor of approving them, with Gomez dissenting.
Councilwoman Liz Becerra, remarking that “If we don t get the unanimous vote, this project is dead,” asked City Attorney Andre deBortnowsky if a vote to reconsider could be taken. deBortnowsky said a motion to that effect could be made. Becerra made such a motion, which was seconded by the mayor. A vote was again taken with Gomez voting no.
“You are about to kill a project for our homeless,” Becerra said. We’re about to lose a project because of her, and that needs to be the headlines: Gomez Loses Wellness Center Project.”
Gomez responded, “No, Ms. Becerra. Staff was responsible for this. Not Blanca Gomez.”
Councilwoman Leslie Irving then said, “I would just like to encourage my colleague to think about her position as a champion for the most vulnerable people, those who are fragile in our community This Wellness Center will address some of those needs and mitigate that for some of the most vulnerable in our community. More importantly, I know that you care about the homeless, and I would ask that you think about the time constraints in terms of commencing construction within the timelines for the grant that has been awarded to us. We have to begin construction and complete it within a timeline. Thereby, it is imperative that we conduct business in this way, to get on with building the Wellness Center. I ask you, please reconsider.”
Gomez responded, saying that the homeless in Victorville have been victimized and exploited by the Victorville establishment, and were again being used. She suggested that the city was using the theme of compassion for the destitute to mask a giveaway of taxpayer money to development interests well-connected to the political establishment who will turn a profit by getting the contract to build the center. She implied that the lack of a bidding process was being used to confer the construction contract on those insider contracting businesses at a cost higher than what would otherwise be paid if a proper bidding competition were held.
“So, the most vulnerable for many years by the City of Victorville have been a commodity,” she said. “The $28 million that can be expended or would be expended if this project were to pass will be lining the pockets of individuals for campaign contributions.”
Gomez said the other members of the council had evinced newfound empathy for the community’s downtrodden solely because $28 million is now available to enrich those who will provide them with campaign contributions.
“None of the colleagues I have here have been face to face, talked to, individuals on the streets,” Gomez said.
The city up to this point had victimized the homeless rather than helping them, she said. She pointed out that city code enforcement officers had endeavored to strip from those living on the streets what shelter they possessed by confiscating their sleeping bags.
Mayor Jones, whose enmity toward Gomez is particularly pronounced, sought to assuage her.
“This is the one thing that I’ve always respected about Council Member Gomez… her soft heart for all of the vulnerable in our community,” Jones said. “I’ve heard it for years. She’s in her sixth year behind the dais. And I’ve heard it consistently that she cares about our homeless population. We all have different ways of reaching out. This is one of the ways our council is seeking to help our most vulnerable population. I know there’s been at least one other time when Council Member Gomez did change her mind on a subject that she was adamantly opposed to, and she changed her mind after she was able to talk to some people. I would certainly hope my colleague would tap into all of those good things in her heart.”
Metzler once more sought to convince Gomez that it was acceptable to bypass the formal bidding process.
“It doesn’t fit exactly within our provisions of code regarding bidding, but my understanding is there is a process that Gordian Sourcewell [has], where they serve effectively as a procurement agent, no different than the cooperative we use for other goods and services,” Metzler said. “So, it’s a type of process that we’re familiar with. We are only doing what we have many, many times before, which is to award a construction contract that is necessary to move forward, and waiving the bidding process. It’s necessary to move forward.”
Ultimately, Tuesday night, however, the entire weight of the council and city staff failed to convince Gomez to abandon her opposition to waiving the need to engage in a formal bidding process on the Wellness Center project.
Consequently, the city in less than 36 hours went to a duo of quickly-hatched alternatives, Plan B and Plan C.
A special meeting was called for 6 a.m. Thursday, March 17, at which the city council, acting in its capacity as the city’s water district board of directors was to consider Plan B, consisting of the Victorville Water District, in lieu of the city, awarding the phase 1 construction contract on the Wellness Center project to Angeles Contractor, Inc. A second item on the agenda, Plan B, called for the council considering the appointment of a city resident to the vacant council seat formerly held by Ramirez.
The somewhat dubitable strategy at play consisted of having the water district take on the assignment of being the lead agency, at least insofar as the first phase, pursuing the Wellness Center project undertaking. According to City Attorney deBortnowsky, the city council could go forward on the theory that the water district was not bound by the four-fifths vote requirement on waiving the formal bid process for the project. If somehow that did not work, the city was prepared to take its chances in an appeal to Irving to have her cross party lines and join with Becerra and Jones in choosing a replacement for Ramirez, and then following through in quick order with swearing that individual in. Presumably, Ramirez’s successor could be convinced to provide a fourth vote to hire Angeles Contractor, Inc. on the first phase of the contract as soon as another special meeting to consider that issue could be scheduled.
Wednesday night, the city council was provided with a staff report explaining the strategy and basis for utilizing the water district’s authority.
The Victorville Water District is the product of the merging of the former Baldy Mesa Water District and the Victor Valley County Water District that took place in 2008. According to the staff report, the water district can be considered the contracting agency on the work Angeles is to carry out. The report states that the phase 1 work on the project is being awarded to Angeles based on the “Sourcewell ezIQC program,” which is being substituted for the regular bidding process.
The document does not specify what the acronym or nomenclature ezIQC signifies.
According to the staff report, authored by Metzler and deBortnowsky, “given that the Victorville Water District is a member of Sourcewell’s cooperative purchasing system, the Victorville Water District will utilize the Sourcewell ezIQC program to
award a construction contract (work order) to Angeles Contractor Inc. The Sourcewell ezIQC cooperative purchasing program is administered by Gordian. It is different from traditional bidding in that the ezIQC competitively bids pricing up front so that a contract can be awarded using competitively bid pricing without having to competitively bid individual projects. This allows for organizations to expedite projects when scheduling constraints exist.”
The report does not clarify who or what Gordian is.
Early Thursday morning, before the council began its deliberations, Roger LePlante, Valentine Godina, Andrea Knight and Mary Emstate [whose name is spelled using a phonetic approximation] were present in the council chamber to comment on the matter, and Ralph Brown, Kareema Abdul, Basil Kimbrew and Maggie Martin addressed the council telephonically.
Speaking as a member of the public at the public comment lectern, Gomez said, “It does not take six months for the bidding process to take place.” She said 130,0000 residents of Victorville had entrusted civic authority to the city council with the expectation that “we would continue doing a competitive bidding process in the City of Victorville. It was not put out for the general public to do a bidding process for $28 million. It’s called fiscal prudency. I do not vote for something that will not allow for the democratic process, with a small d, mind you.”
Metzler sought to put his and staff’s best foot forward by saying, “The award of a construction contract to Angeles Contractor, Inc. is being sought in your role as the water district board of directors. This item… is not seeking a waiver of a city bidding requirement, since the water district can rely on State Water Code law and also public contract code.” He said the city and community is now “relying on the water district because it is a separate legal agency, has separate legal authorities. We certainly believe that gives us just an additional belt-and-suspenders approach to trying to curb any potential challenges, to the extent they exist.”
de Bortnowsky weighed in with an assurance that “This has been a publicly-bid project. It has just been bid through a different process than is provided by the municipal code.”
Metzler said a resolution of waiver adopted by the council on August 18, 2020 obviated the necessity of the resolution of waiver that was passed 3-to-1 by the council on Tuesday evening.
That assertion nearly untracked the entire meeting and its purpose, as it prompted Councilwoman Irving to ask, if no waiver was needed, why the water district board was being appealed to that morning to lend its authority to the contract approval.
This discombobulated Metzler, who stumbled, acknowledging that “There’s certainly an appearance that we’re trying to mask or skirt, if you will, some of the provisions of our code.” He sought, nonetheless, to assure Irving, her council colleagues and the public “that certainly is not the case, certainly not believed by staff or legal counsel.”
This satisfied Irving, who voted with Jones and Becerra to approve the item 3-1, with Gomez casting the dissenting vote.
Gomez intimated that a legal challenge of what had occurred would be forthcoming. Indeed, the city appears to be on shaky ground in that respect, since it would be hard put to explain what a water district is doing constructing a homeless shelter. Moreover, the water district exists as a “subsidiary district” of the City of Victorville, meaning, by some interpretations, the water district needed to approve the contract on a four-fifths vote.
The calculation by Metzler, deBortnowsky and the council is that Gomez does not have access to an attorney to make such a legal challenge, since any attorney likely to be aligned with her would be loathe to initiate legal action obstructing the development of a homeless housing facility.
One unaddressed weakness in the city’s rush to close the deal with Angeles relates to the provisions relating to the State of California’s prevailing wage law and the federal Davis Bacon Act, which require that the workers on public projects be provided with union scale wages. The contract with Angeles states, “Contractor shall be responsible for using the correct and current prevailing wage rates.” This places Angeles on the honor system. Whether the company can actually perform the work it is being called upon to carry out and do so without losing money while paying union scale rates is subject to question. If the matter is pressed, and the company is put in the position of going into the red in order to complete the project, it may seek change orders or adjustments to its remuneration. If the city does not comply with those requests, Angeles may feel it needs to slow the timetable of its performance to achieve profitability. That could lead to the city having to surrender the grant money back to the state. Being caught in this bind could lead to the city needing to significantly increase the construction budget on the project to well above $23.6 million, vindicating Gomez in her call for the city to have conducted a standard bidding process on the project.
-Mark Gutglueck


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