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HomeMy WebLinkAbout2006-09-26; City Council; Resolution 2006-2811 RESOLUTION NO. 2006-281 2 A RESOLUTION APPROVING THE CITY OF CARLSBAD, 3 CALIFORNIA, DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM AS CONTAINED WITHIN CITY COUNCIL POLICY 4 STATEMENT NO. 67 AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE DBE RACE-NEUTRAL IMPLEMENTATION 5 AGREEMENT FOR LOCAL AGENCIES EXHIBIT 9-A. 6 WHEREAS, the Federal Department of Transportation, under the Code of Federal 7 Regulations, Title 49; Part 23, requires each local government entity receiving Federal 8 Transportation funds to implement a Disadvantaged Business Enterprise Program g ("DBE Program"); and WHEREAS, the DBE Program must be included in any local government contracts which are wholly or partially funded with Federal Transportation funds; and WHEREAS, Caltrans has now been entrusted with local agency oversight responsibility 12 for DBE implementation for all federal transportation funded programs, wholly or in part; and 13 WHEREAS, Caltrans is requiring the City of Carlsbad to adopt the DBE Race-Neutral 14 Implementation Agreement for Local Agencies Exhibit 9-A to ensure compliance with all elements 15 of Title 49, Part 26 of the CFR entitled "Participation by Disadvantaged Business Enterprises in 16 Department of Transportation Financial Assistance Programs." 17 WHEREAS, adoption of the DBE Race-Neutral Implementation Agreement for Local 1 s Agencies Exhibit 9-A will enable the City to receive federal funding for existing and future Capital 1 g Projects. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows:21 1. That the above recitations are true and correct. 22 2. That the City Council of the City of Carlsbad, California does hereby adopt the 23 DBE Race-Neutral Implementation Agreement for Local Agencies Exhibit 9-A dated July 2006 and 24 replace the existing DBE Program in City Council Policy Statement No. 67. OC 3. That the City Council of the City of Carlsbad, California authorizes the 26 City Manager to execute the DBE Race-Neutral Implementation Agreement for Local Agencies 27 Exhibit 9-A dated July 2006. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 26th day of September , 2006, by the following vote, to wit: AYES: Council Members Lewis, Hall, Kulchin, Packard, Sigafoose NOES: None ABSENT: None ATTEST: ft$E M. WOOD, City Clerk H Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM RACE NEUTRAL IMPLEMENTATION AGREEMENT FOR THE CITY OF CARLSBAD CALIFORNIA JULY 2006 LPP 06-01 Page 1-9 July 1,2006 -, Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies DISADVANTAGED BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENTATION AGREEMENT For the City of Carlsbad, hereinafter referred to as "RECIPIENT." I Definition of Terms The terms used in this agreement have the meanings defined in 49 CFR § 26.5. II OBJECTIVE/POLICY STATEMENT (§26/1. 26/23) The RECIPIENT intends to receive federal financial assistance from the U. S. Department of Transportation (DOT) through the California Department of Transportation (Caltrans), and as a condition of receiving this assistance, the RECIPIENT will sign the California Department of Transportation's Disadvantaged Business Enterprise Implementation Agreement (hereinafter referred to as Agreement). The RECIPIENT agrees to implement the State of California, Department of Transportation Disadvantaged Business Enterprise (DBE) Program Plan (hereinafter referred to as the DBE Program Plan) as it pertains to local agencies. The DBE Program Plan is based on U.S. Department of Transportation (DOT), 49 CFR, Part 26 requirements. It is the policy of the RECIPIENT to ensure that DBEs, as defined in Part 26, have an equal opportunity to receive and participate in DOT-assisted contracts. It is also their policy: • To ensure nondiscrimination in the award and administration of DOT-assisted contracts. • To create a level playing field on which DBE's can compete fairly for DOT-assisted contracts. • To ensure their annual overall DBE participation percentage is narrowly tailored, in accordance with applicable law. • To ensure only firms that fully meet 49 CFR, Part 26 eligibility standards are permitted to participate as DBEs. • To help remove barriers to the participation of DBEs in DOT-assisted contracts. • To assist the development of firms that can compete successfully in the market place outside the DBE Program. Ill Nondiscrimination (§26.7) RECIPIENT will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR, Part 26 on the basis of race, color, sex, or national origin. In administering the local agency components of the DBE Program Plan, the RECIPIENT will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin. LPP 06-01 Page 2- 9 July 1,2006 q Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies IV Annual DBE Submittal Form (§26.21) The RECIPIENT will provide to the Caltrans' District Local Assistance Engineer (DLAE) a completed DBE Annual Submittal Form by June 1 of each year for the following Federal Fiscal Year (FFY). This form includes an Annual Anticipated DBE Participation Level (AADPL), methodology for establishing the AADPL, the name, phone number, and electronic mailing address of the designated DBELO, and the choice of Prompt Pay Provision to be used by the RECIPIENT for the following FFY. V Race-Neutral Means of Meeting the Annual DBE Goal (§26.51) RECIPIENT will assist Caltrans to achieve its Overall Statewide DBE Goal by race neutral means that may include, but are not limited to the following: 1. Advertising solicitations, scheduling bidding periods and opening times, and packaging quantities, specifications, and delivery schedules in ways to facilitate DBE and other small business participation. 2. Providing assistance to DBE and small businesses in overcoming limitations such as inability to obtain bonding or financing (e.g., by such means as simplifying the bonding process, reducing bonding requirements, and providing services to help DBEs and other small businesses obtain bonding and financing). 3. Providing technical assistance and other services to DBE and small businesses. 4. Providing information and communication programs on contracting procedures and specific contract opportunities (e.g., ensuring the inclusion of DBEs and other small businesses on recipient mailing lists of bidders; ensuring the dissemination to bidders on prime contracts of lists of potential subcontractors including DBE's and small businesses; providing the information in languages other than English, where appropriate). 5. Implementing a supportive services program to develop and improve immediate and long- term business management, record keeping, and financial and accounting capability for DBEs and other small businesses. 6. Providing services to help DBEs and other small businesses improve long-term development, increase opportunities to participate in a variety of kinds of work, handle increasingly significant projects, and achieve eventual self-sufficiency. 7. Establishing a program to assist new, start-up firms, particularly in fields in which DBE participation has been historically low. 8. Assisting DBEs and other small businesses to develop their capability to utilize emerging technology and conduct business through electronic media. 9. Implementing or developing a mentor-protege" program. LPP 06-01 Page 3- 9 July 1,2006 ft Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies VI Quotas (§26.43) RECIPIENT will not use quotas or set-asides in any way in the administration of the local agency component of the DBE Program Plan. VII DBE Liaison Officer (DBELO) (§26.25) RECIPIENT has designated a DBE Liaison Officer. The DBELO is responsible for implementing the DBE Program Plan, as it pertains to the RECIPIENT, and ensures the RECIPIENT is fully and properly advised concerning DBE Program Plan matters. The DBELO has direct, independent access to the City Manager for the City of Carlsbad concerning DBE matters. The Planning and Programs Division of the Public Works, Engineering Department, which consists of a Deputy City Engineer, a Senior Engineer, an Associate Engineer and three Engineering Technicians, will support the DBELO. It is the Planning and Programs Division's primary function to implement important programs such as the DBE Program. In addition to the Planning and Programs staff, the support of the Public Works, Engineering Department administrative staff is also available as needed. The name, address, telephone number, electronic mail address, and an organization chart displaying the DBELO's position in the organization are found in Attachment 9-B to this Agreement. This information will be updated annually and included on the DBE Annual Submittal Form. The DBELO is responsible for developing, implementing, and monitoring the RECIPIENT'S requirements of the DBE Program Plan in coordination with other appropriate officials. Duties and responsibilities include the following: 1. Gathers and reports statistical data and other information as required. 2. Reviews third party contracts and purchase requisitions for compliance with this program. 3. Works with all departments to determine projected Annual Anticipated DBE Participation Level. 4. Ensures bid notices and requests for proposals are made available to DBEs in a timely manner. 5. Analyzes DBE participation and identifies ways to encourage participation through race- neutral means. 6. Participates in pre-bid meetings. 7. Advises the CEO/governing body on DBE matters and DBE race-neutral issues. 8. Provides DBEs with information and recommends sources to assist in preparing bids, obtaining bonding and insurance. 9. Plans and participates in DBE training seminars. 10. Provides outreach to DBEs and community organizations to fully advise them of contracting opportunities. Page 4- 9 LPP 06-01 July 1, 2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies VIII Federal Financial Assistance Agreement Assurance (§26.13) RECIPIENT will sign the following assurance, applicable to and to be included in all DOT-assisted contracts and their administration, as part of the program supplement agreement for each project. The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract, or in the administration of its DBE Program, or the requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 CFR, Part 26 to ensure nondiscrimination in the award and administration of DOT- assisted contracts. The recipient's DBE Program, as required by 49 CFR, Part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.). [Note - this language is to be used verbatim, as it is stated in§26.13(a).] IX DBE Financial Institutions (§26.27) It is the policy of the RECIPIENT to investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community to make reasonable efforts to use these institutions, and to encourage prime contractors on DOT-assisted contracts to make use of these institutions. Information on the availability of such institutions can be obtained from the DBELO. The Caltrans' Disadvantaged Business Enterprise Program may offer assistance to the DBELO. X Directory (§26.31) RECIPIENT will refer interested persons to the Unified Certification Program DBE directory available from the Caltrans Disadvantaged Business Enterprise Program's website at www.dot.ca.gov/hq/bep. XI Required Contract Clauses (§§26.13,26.29) RECIPIENT ensures the following clauses or equivalent will be included in each DOT-assisted prime contract: A. CONTRACT ASSURANCE The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as recipient deems appropriate. LPP 06-01 Page 5- 9 July 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies B. PROMPT PAYMENT Prompt Progress Payment to Subcontractors A prime contractor or subcontractor shall pay to any subcontractor not later than 10-days of receipt of each progress payment, in accordance with the provision in Section 7108.5 of the California Business and Professions Code concerning prompt payment to subcontractors. The 10-days is applicable unless a longer period is agreed to in writing. Any delay or postponement of payment over 30-days may take place only for good cause and with the agency's prior written approval. Any violation of Section 7108.5 shall subject the violating contractor or subcontractor to the penalties, sanctions, and other remedies of that Section. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors. Prompt Payment of Withheld Funds to Subcontractors The local agency shall include either (1), (2), or (3) of the following provisions [local agency equivalent will need Caltrans approval] in their federal-aid contracts to ensure prompt and full payment of retainage [withheld funds] to subcontractors in compliance with 49 CFR 26.29. 1. No retainage will be held by the agency from progress payments due to the prime contractor. Prime contractors and subcontractors are prohibited from holding retainage from subcontractors. Any delay or postponement of payment may take place only for good cause and with the agency's prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors. 2. No retainage will be held by the agency from progress payments due the prime contractor. Any retainage kept by the prime contractor or by a subcontractor must be paid in full to the earning subcontractor in 30-days after the subcontractor's work is satisfactorily completed. Any delay or postponement of payment may take place only for good cause and with the agency's prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors. Page 6- 9 LPP 06-01 July 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies 3. The agency shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the agency of the contract work and pay retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from all subcontractors within 30-days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Any delay or postponement of payment may take place only for good cause and with the agency's prior written approval. Any violation of these provisions shall subject the violating prime contractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of: a dispute involving late payment or nonpayment by the contractor; deficient subcontractor performance; and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors. XIV Local Assistance Procedures Manual The RECIPIENT will advertise, award and administer DOT-assisted contracts in accordance with the most current published Local Assistance Procedures Manual (LAPM). XV Bidders List (§26.11) The RECIPIENT will create and maintain a bidders list, consisting of information about all DBE and non-DBE firms that bid or quote on its DOT-assisted contracts. The bidders list will include the name, address, DBE/non-DBE status, age, and annual gross receipts of the firms. XVI Reporting to the DLAE RECIPIENT will promptly submit a copy of the Local Agency Bidder-DBE Information (Exhibit 15-G or Exhibit 10-O of the LAPM) to the DLAE at the time of execution of consultant or construction contract award. RECIPIENT will promptly submit a copy of the Final Utilization of DBE participation to the DLAE using Exhibit 17-F of the LAPM immediately upon completion of the contract for each consultant or construction contract. XVII Certification (§26.83(a)) RECIPIENT ensures that only DBE firms currently certified by the California Unified Certification Program will participate as DBEs on DOT-assisted contracts. LPP 06-01 Page 7- 9 July 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies XVIII Confidentiality RECIPIENT will safeguard from disclosure to third parties, information that may reasonably be regarded as confidential business information consistent with federal, state, and local laws. Date: Raymond R. Patchett - City Manager Phone Number: (760) 434-2821 This California Department of Transportation's Disadvantaged Business Enterprise Program Plan Implementation Agreement is accepted by: Date: [Signature of DLAE] [Print Name of DLAE] Distribution: (1) Original -DLAE DBE Race-neutral Implementation Agreement for Local Agencies (05/01/06) (2) Copy-local agency after signing by DLAE Page 8- 9 LPP 06-01 July 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies LPP 06-01 Page 9- 9 July 1,2006