Loading...
HomeMy WebLinkAbout2006-07-18; City Council; 18650; Disadvantaged Business Enterprise ProgramCITY OF CARLSBAD - AGENDA BILL 18,650AB# MTG. 7/18/06 DEPT. ENG ADOPTION OF THE CITY OF CARLSBAD DJ8ADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM FOR OCTOBER 2005 THROUGH SEPTEMBER 2006 DEPT. HEAD (>ff CITY ATTY. CITY MGR. RECOMMENDED ACTION: Adopt Resolution No. 2006-199 approving the revisions to the City of Carlsbad Disadvantaged Business Enterprise (DBE) Program as contained within City Council Policy Statement No. 67 and authorizing the City Manager to execute the revised DBE Program. ITEM EXPLANATION: The City of Carlsbad is required to revise its Disadvantaged Business Enterprise (DBE) Program in order to continue receiving federal funds for design and/or construction of applicable projects. The City is currently operating under the DBE Program approved by the City Council on February 4, 2003 attached to City Council Policy Statement No. 67. The purpose of the DBE Program is to ensure a good faith effort is made to recruit and retain DBE firms for work on federally-funded (in whole or part) City projects. The intent of the DBE Program is to set a "goal" for inclusion of the DBE firms on federally-funded City projects based on a ratio of available DBE firms to non disadvantaged firms. The revised program sets the inclusionary goal for Carlsbad at 15%. The goal will be recalculated each year based on factors used in the present calculation combined with updated DBE participation data as warranted. The primary revision to the Carlsbad DBE Program is necessary in order to abide by the 9th Circuit Court of Appeals Decision to end California's Race Conscious DBE Program and implement a Race Neutral DBE program for any new federal consultant or construction contracts that have not been executed as of May 1, 2006. City projects currently using federal funds include the Coastal Rail Trail, Seismic retrofit of Carlsbad Boulevard Bridge over the San Diego Northern Railway (SDNR) railroad tracks, Carlsbad Boulevard bridge over railroad concrete barrier repair, Carlsbad Boulevard bridge over Encinas Creek, and Rancho Santa Fe Road wetland mitigation construction. The revised Carlsbad DBE Program was reviewed by City staff and submitted to and preliminarily approved by Caltrans in June 2006. Final approval by Caltrans will occur upon adoption of the revised DBE Program. ENVIRONMENTAL IMPACT: The revised DBE Program is not a "project" as defined by CEQA and therefore does not require environmental review. Each federally-funded project will complete all environmental reviews per federal, state, and local requirements. FISCAL IMPACT: If a Caltrans approved program is not in place, the City could lose currently approved and future appropriations of federal funds for City projects. The federal funding for five current and upcoming capital projects total over twenty six million dollars. Staff time to implement the revised DBE Program is estimated to remain the same as past programs. DEPARTMENT CONTACT: Steven Jantz, (760) 602-2738, siant@ci.carlsbad.ca.us FOf? CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED aa Da CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D Page 2 EXHIBITS: 1. Resolution No. 2006-199 approving the revisions to the City of Carlsbad Disadvantaged Business Enterprise (DBE) Program as contained within City Council Policy Statement No. 67 and authorizing the City Manager to execute the revised DBE Program. 2. Disadvantaged Business Enterprise (DBE) Program for the City of Carlsbad, California, dated June 2006. 1 RESOLUTION NO. 2006-199 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE REVISIONS TO THE 3 CITY OF CARLSBAD DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM AS CONTAINED WITHIN CITY COUNCIL 4 POLICY STATEMENT NO. 67 AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE REVISED DBE PROGRAM. 5 WHEREAS, the Federal Department of Transportation, under the Code of Federal Regulations, Title 49; Part 23, requires each local government entity receiving Federal Transportation funds to implement a Disadvantaged Business Enterprise Program 9 ("DBE Program"); and 1Q WHEREAS, the DBE Program must be included in any local government contracts which are wholly or partially funded with Federal Transportation funds; and 12 WHEREAS, Caltrans has now been entrusted with local agency oversight responsibility 13 for DBE implementation for all federal transportation funded programs, wholly or in part; and 14 WHEREAS, the proposed revisions include revising the DBE Program language to be 15 consistent with a recent Caltrans decision to have the DBE Program strictly Race Neutral and to 16 update the list of federally funded construction projects; and 17 WHEREAS, approval of the attached revised DBE Program for October 2005 through 18 September 2006 will enable the City to receive federal funding for existing and future Capital 19 Projects. 20 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 21 California, as follows: 22 1. That the above recitations are true and correct. 23 2. That the City Council of the City of Carlsbad, California does hereby revise 24 City Council Policy Statement No. 67 by replacing the existing DBE Program with the attached 25 revised DBE Program for the City of Carlsbad dated June 2006. 26 3. That the City Council of the City of Carlsbad, California authorizes the 27 City Manager to execute the revised DBE Program for the City of Carlsbad dated June 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 18th day of July , 2006, by the following vote, to wit: AYES: Council Members Lewis, Hall, Kulchin, Packard, Sigafoose NOES: None ABSENT: None ATTEST: (SEAL) Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM FOR THE CITY OF CARLSBAD CALIFORNIA JUNE, 2006 This Program is in accordance with Title 49 of the Code of Federal Regulations Part 26, and the Model DBE Program as provided in the Caltrans Local Assistance Procedures Manual Chapter 9. DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM Page 9-27 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies City of Carlsbad, California I Definitions of Terms The terms used in this program have the meanings defined in 49 CFR §26.5. II Objectives/Policy Statement (§§26.1, 26.23) The City of Carlsbad has established a Disadvantaged Business Enterprise (DBE) program in accordance with regulations of the U.S. Department of Transportation (DOT), 49 CFR Part 26. The City of Carlsbad has received Federal financial assistance from the DOT, and as a condition of receiving this assistance, the City of Carlsbad will sign an assurance it will comply with 49 CFR Part 26. It is the policy of the City of Carlsbad to ensure that DBEs, as defined in part 26, have an equal opportunity to receive and participate in DOT-assisted contracts. It is also our policy: • To ensure nondiscrimination in the award and administration of DOT-assisted contracts; • To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts; • To ensure the DBE Program is narrowly tailored in accordance with applicable law; • To ensure only firms fully meeting 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; and • To assist the development of firms that can compete successfully in the market place outside the DBE Program. Steven C. Jantz, Associate Engineer, has been delegated as the DBE Liaison Officer. In that capacity, Steven C. Jantz is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the City of Carlsbad in its financial assistance agreements with the California Department of Transportation (Caltrans). The City of Carlsbad has disseminated this policy statement to the City Council of the City of Carlsbad and all the components of our organization. We have distributed this statement to DBE and non-DBE business communities performing work for us on DOT-assisted contracts by publishing this statement in general circulation, minority-focused and trade association publications. Page 9-28 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies III Nondiscrimination (§26.7) The City of Carlsbad 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 its DBE program, the City of Carlsbad 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 with respect to individuals of a particular race, color, sex, or national origin. IV DBE Program Updates (§26.21) The City of Carlsbad will continue to carry out this program until the City of Carlsbad has established a new goal setting methodology or until significant changes to this DBE Program are adopted. The City of Carlsbad will provide to Caltrans a proposed overall goal and goal setting methodology and other program updates by June 1 of every year. V Quotas (§26.43) The City of Carlsbad will not use quotas or set-asides in any way in the administration of this DBE program. VI DBE Liaison Officer (DBELO) (§26.45) The City of Carlsbad has designated the following individual as the Disadvanaged Business Enterprise Liaison Officer (DBELO): Steven C. Jantz, Associate Engineer, City of Carlsbad, Public Works Department, Engineering Division, 1635 Faraday Avenue Carlsbad, California, 92008, Phone Number (760) 602-2738, Fax Number (760) 602-8562, e-mail address, siant@ci.carlsbad.ca.us. The DBELO is responsible for implementing all aspects of the DBE program and ensuring that the City of Carlsbad complies with all provisions of 49 CFR Part 26. This is available on the Internet at osdbuweb.dot.gov/main.cfm. 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 organization chart displaying applicable staff is shown as Exhibit "B" of this document. Page 9-29 LPP 06-01 May 1,2006 7 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies The DBELO is responsible for developing, implementing and monitoring the DBE program, in coordination 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 set overall annual goals. 4. Ensures bid notices and requests for proposals are available to DBEs in a timely manner. 5. Identifies contracts and procurements so that DBE goals are included in solicitations and monitors results. 6. Analyzes the City of Carlsbad's progress toward goal attainment and identifies ways to improve progress. 7. Participates in pre-bid meetings. 8. Advises the City Manager and City Council on DBE matters and achievement. 9. Chairs the DBE Advisory Committee. 10. Participates with the City Attorney's Office and project director to determine contractor compliance with good faith efforts. 11. Provides DBEs with information and assistance in preparing bids, obtaining bonding and insurance. 12. Plans and participates in DBE training seminars. 13. Provides outreach to DBEs and community organizations to advise them of opportunities. VII Federal Financial Assistance Agreement Assurance (§26.13) The City of Carlsbad will sign the following assurance, applicable to all FHWA-assisted contracts and their administration as part of the program supplement agreement for each project: Page 9-30 LPP 06-01 , May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies 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.). VIII DBE Financial Institutions It is the policy of the City of Carlsbad 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 DBE Liaison Officer. The Caltrans Disadvantaged Business Enterprise Program may offer assistance to the DBE Liaison Officer. IX Directory (§26.31) The City of Carlsbad will refer interested persons to the DBE directory available from the Caltrans Disadvantaged Business Enterprise Program website at www.dot.ca.gov/hq/bep. X Overconcentration (§26.33) The City of Carlsbad has not identified any types of work in DOT-assisted contracts that have an Overconcentration of DBE participation. If in the future the City of Carlsbad identifies the need to address Overconcentration, measures for addressing Overconcentration will be submitted to the DLAE for approval. XI Business Development Programs (§26.35) The City of Carlsbad does not have a business development or mentor-protege program. If the City of Carlsbad identifies the need for such a program in the future, the rationale for adopting such a program and a comprehensive description of it will be submitted to the DLAE for approval. Page 9-31 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies XII Required Contract Clauses (§§26.13, 26.29) Contract Assurance The City of Carlsbad ensures the following clause is placed in every DOT-assisted contract and subcontract: 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. Prompt Payment The City of Carlsbad ensures that the following clauses or equivalent will be included in each DOT-assisted prime contract: Prompt Progress Payment to Subcontractors A prime contractor or subcontractor shall pay a 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 violation of Section 7108.5 shall subject the violating contractor or subcontractor to the penalties, sanction and other remedies of that section. Federal regulation (49 CFR 26.29) requires that any delay or postponement of payment over 30 days of receipt of each payment may take place only for good cause and with the agency's prior written approval. These requirements shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise, available to the prime contractor or subcontractor in the event of a dispute involving late payment, or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor. This provision applies to both DBE and non-DBE prime contractors and subcontractors. Page 9-32 LPP 06-01 May 1,2006 IP Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies Release of Retainage 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 a subcontractor within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Federal regulation (49 CFR 26.29) requires that 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 this provision shall subject the violating prime contractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise, available to the prime contractor or subcontractor in the event of a dispute involving late payment, or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor. This provision applies to both DBE and non-DBE prime contractors and subcontractors. XIII Monitoring and Enforcement Mechanisms (§26.37) The City of Carlsbad will assign a Resident Engineer (RE) or Contract Manager to monitor and track actual DBE participation through contractor and subcontractor reports of payments in accordance with the following: After Contract Award After the contract award the City of Carlsbad will review the award documents for the portion of items each DBE and first tier subcontractor will be performing and the dollar value of that work. With these documents the RE/Contract Manager will be able to determine the work to be performed by the DBEs or subcontractors listed. Preconstruction Conference A preconstruction conference will be scheduled between the RE and the contractor or their representative to discuss the work each DBE subcontractor will perform. Page 9-33 LPP 06-01 May 1,2006 fl Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies Before work can begin on a subcontract, the City of Carlsbad will require the contractor to submit a completed "Subcontracting Request," Exhibit 16-B of the LAPM or equivalent. When the RE receives the completed form it will be checked for agreement of the first tier subcontractors and DBEs. The RE will not approve the request when it identifies someone other than the DBE or first tier subcontractor listed in the previously completed "Local Agency Bidder DBE Information," Exhibit 15-G. The "Subcontracting Request" will not be approved until any discrepancies are resolved. If an issue cannot be resolved at that time, or there is some other concern, the RE will require the contractor to eliminate the subcontractor in question before signing the subcontracting request. A change in the DBE or first tier subcontractor may be addressed during a substitution process at a later date. Suppliers, vendors, or manufacturers listed on the "Local Agency Bidder DBE Information" will be compared to those listed in the completed Exhibit 16-1 of the LAPM or equivalent. Differences must be resolved by either making corrections or requesting a substitution. Substitutions will be subject to the Subletting and Subcontracting Fair Practices Act (FPA). Local agencies will require contractors to adhere to the provisions within Subletting and Subcontracting Fair Practices Act (State Law) Sections 4100-4144. FPA requires the contractor to list all subcontractors in excess of one half of one percent (0.5%) of the contractor's total bid or $10,000, whichever is greater. The statute is designed to prevent bid shopping by contractors. The FPA explains a contractor may not substitute a subcontractor listed in the original bid except with the approval of the awarding authority. The RE will give the contractor a blank Exhibit 17-F, "Final Report Utilization of Disadvantaged Business Enterprises, First Tier Subcontractors" and will explain the document will be required at the end of the project, for which payment can be withheld, in conformance with the contract. Construction Contract Monitoring The RE will ensure the RE's staff (inspectors) knows what items of work each DBE is responsible for performing. Inspectors will notify the RE immediately of apparent violations. When a firm other than the listed DBE subcontractor is found performing the work, the RE will notify the contractor of the apparent discrepancy and potential loss of payment. Based on the contractor's response, the RE will take appropriate action: The DBE Liaison Officer will perform a preliminary investigation to identify any potential issues related to the DBE subcontractor performing a commercially useful function. Any substantive issues will be forwarded to the Caltrans Disadvantaged Business Enterprise Program. If the contractor fails to adequately explain why there is a discrepancy, payment for the work will be withheld and a letter will be sent to the contractor referencing the applicable specification violation and the required withholding of payment. Page 9-34 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies If the contract requires the submittal of a monthly truck document, the contractor will be required to submit documentation to the RE showing the owner's name; California Highway Patrol CA number; and the DBE certification number of the owner of the truck for each truck used during that month for which DBE participation will be claimed. The trucks will be listed by California Highway Patrol CA number in the daily diary or on a separate piece of paper for documentation. The numbers are checked by inspectors regularly to confirm compliance. Providing evidence of DBE payment is the responsibility of the contractor. Substitution When a DBE substitution is requested, the RE/Contract Manager will request a letter from the contractor explaining why substitution is needed. The RE/Contract Manager must review the letter to be sure names and addresses are shown, dollar values are included, and reason for the request is explained. If the RE/Contract Manager agrees to the substitution, the RE/Contract Manager will notify, in writing, the DBE subcontractor regarding the proposed substitution and procedure for written objection from the DBE subcontractor in accordance with the Subletting and Subcontracting Fair Practices Act. If the contractor is not meeting the contract goal with this substitution, the contractor must provide the required good faith effort to the RE/Contract Manager for local agency consideration. If there is any doubt in the RE/Contract Manager's mind regarding the requested substitution, the RE/Contract Manager may contact the DLAE for assistance and direction. Record Keeping and Final Report Utilization of Disadvantaged Business Enterprises The contractor shall maintain records showing the name and address of each first-tier subcontractor. The records shall also show: 1. The name and business address, regardless of tier, of every DBE subcontractor, DBE vendor of materials and DBE trucking company. 2. The date of payment and the total dollar figure paid to each of the firms. 3. The DBE prime contractor shall also show the date of work performed by their own forces along with the corresponding dollar value of the work claimed toward DBE goals. When a contract has been completed the contractor will provide a summary of the records stated above. The DBE utilization information will be documented on Exhibit 17-F and will be submitted to the DLAE attached to the Report of Expenditures. The RE will compare the completed Exhibit 17-F to the contractor's completed Exhibit 15-G and, if applicable, to the completed Exhibit 16-B. The DBEs shown on the completed Exhibit 17-F should be the same as those originally listed unless an authorized substitution was allowed, or the contractor used more DBEs and they were added. Page 9-35 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies The dollar amount should reflect any changes made in planned work done by the DBE. The contractor will be required to explain in writing why the names of the subcontractors, the work items or dollar figures are different from what was originally shown on the completed Exhibit 15-G when: • There have been no changes made by the RE. • The contractor has not provided a sufficient explanation in the comments section of the completed Exhibit 17-F. The explanation will be attached to the completed Exhibit 17-F for submittal. The RE will file this in the project records. The City of Carlsbad's Liaison Officer will keep track of the DBE certification status on the Internet at www.dot.ca.gov/hq/bep and keep the RE informed of changes that affect the contract. The RE will require the contractor to act in accordance with existing contractual commitments regardless of decertification. The DLAE will use the PS&E checklist to monitor the City of Carlsbad's commitment to require bidders list information to be submitted to the City of Carlsbad from the awarded prime and subcontractors as a means to develop a bidders list. This monitoring will only take place if the bidders list information is required to be submitted as stipulated in the special provisions. The City of Carlsbad will bring to the attention of the DOT through the DLAE any false, fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided in §26.109. The City of Carlsbad also will consider similar action under our own legal authorities, including responsibility determinations in future contracts. XIV Overall Goals (§26.45) Amount of Goal The City of Carlsbad's overall goal for the Federal fiscal year FY 2005-2006 is the following: 15% of the Federal financial assistance in FHWA-assisted contracts. Methodology See Exhibit 9-B, Annual Overall Goal Information for complete Methodology formulization. Breakout of Estimated Race-Neutral and Race-Conscious Participation See Exhibit 9-B, Annual Overall Goal Information for listing of procedures, which will be in effect for all contracts or proposals, financed in part or in whole with Federal funding. Page 9-36 LPP 06-01 May 1,2006 . Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies Process Starting with the Federal fiscal year 2003, the amount of overall goal, the method to calculate the goal, and the breakout of estimated race-neutral and race-conscious participation will be required annually by June 1 in advance of the Federal fiscal year beginning October 1 for FHWA-assisted contracts. Submittals will be to the Caltrans' DLAE. An exception to this will be if FTA or FAA recipients are required by FTA or FAA to submit the annual information to them or a designee by another date. FHWA recipients will follow this process: Once the DLAE has responded with preliminary comments and the comments have been incorporated into the draft overall goal information, the City of Carlsbad will publish a notice of the proposed overall goal, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at the City of Carlsbad's principal office for 30 days following the date of the notice, and informing the public that the City of Carlsbad's comments will be accepted on the goals for 45 days following the date of the notice. Advertisements in newspapers, minority focus media, trade publications, or websites will be the normal media to accomplish this effort. The notice will include addresses to which comments may be sent and addresses (including offices and websites) where the proposal may be reviewed. The overall goal resubmission to the Caltrans DLAE, will include a summary of information and comments received during this public participation process and the City of Carlsbad's responses. This will be due by September 1 to the Caltrans DLAE. The DLAE will have a month to make a final review so the City of Carlsbad may begin using the overall goal on October 1 of each year. XV Contract Goals (§26.51) The City of Carlsbad will use contract goals to meet any portion of the overall goal the City of Carlsbad does not project being able to meet by the use of race-neutral means. Contract goals are established so that, over the period to which the overall goal applies, they will cumulatively result in meeting any portion of the overall goal that is not projected to be met through the use of race-neutral means. Contract goals will be established only on those DOT-assisted contracts that have subcontracting possibilities. Contract goals need not be established on every such contract, and the size of contract goals will be adapted to the circumstances of each such contract (e.g., type and location of work, availability of DBEs to perform the particular type of work). The contract work items will be compared with eligible DBE contractors willing to work on the project. A determination will also be made to decide which items are likely to be performed by the prime contractor and which ones are likely to be performed by the subcontractor(s). The goal will then be incorporated into the contract documents. Contract goals will be expressed as a percentage of the total amount of a DOT-assisted contract. Page 9-37 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies XVI Transit Vehicle Manufacturers (§26.49) If DOT-assisted contracts will include transit vehicle procurements, the City of Carlsbad will require each transit vehicle manufacturer, as a condition of being authorized to bid or propose on transit vehicle procurements, to certify that it has complied with the requirements of 49 CFR Part 26, Section 49. The City of Carlsbad will direct the transit vehicle manufacturer to the subject requirements located on the Internet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm. XVII Good Faith Efforts (§26.53) Information to be Submitted The City of Carlsbad treats bidders'/offerers' compliance with good faith effort requirements as a matter of responsiveness. A responsive proposal is meeting all the requirements of the advertisement and solicitation. Each solicitation for which a contract goal has been established will require the bidders/offerers to submit the following information to the Purchasing Officer, City of Carlsbad, 1635 Faraday Avenue, Carlsbad, CA 92008 no later than 4:00 p.m. on or before the fourth day, not including Saturdays, Sundays and legal holidays, following bid opening: 1. The names and addresses of known DBE firms that will participate in the contract; 2. A description of the work that each DBE will perform: 3. The dollar amount of the participation of each DBE firm participation: Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; 4. Written and signed confirmation from the DBE that it is participating in the contract as provided in the prime contractor's commitment; and 5. If the contract goal is not met, evidence of good faith efforts. Demonstration of Good Faith Efforts The obligation of the bidder/offerer is to make good faith efforts. The bidder/offerer can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. The following City Staff are responsible for determining whether a bidder/offerer who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive: The City DBE Officer, Steven C. Jantz, 1635 Faraday Avenue, Carlsbad, California, 92008, email address siant@ci.carlsbad.ca.us. or the City Purchasing Officer, Lisa Irvine, 1635 Faraday Avenue, Carlsbad, California, 92008, email address lirvi@ci.carlsbad.ca.us. Page 9-38 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies The City of Carlsbad will ensure that all information is complete and accurate and adequately documents the bidder/offerer's good faith efforts before a commitment to the performance of the contract by the bidder/offerer is made. Administrative Reconsideration Within 10 days of being informed by the City of Carlsbad that it is not responsive because it has not documented sufficient good faith efforts, a bidder/offerer may request administrative reconsideration. Bidder/offerers should make this request in writing to the following reconsideration official: the City Manager, 1200 Carlsbad Village Drive, Carlsbad, California, 92008. The reconsideration official will not have played any role in the original determination that the bidder/offerer did not make document sufficient good faith efforts. As part of this reconsideration, the bidder/offerer will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. The bidder/offerer will have the opportunity to meet in person with the reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do. The City of Carlsbad will send the bidder/offerer a written decision on reconsideration, explaining the basis for finding the bidder did or did not meet the goal or make adequate good faith efforts to do so. The result of the reconsideration process is not administratively appealable to Caltrans, FHWA or the DOT. Good Faith Efforts when a QBE is Replaced on a Contract The City of Carlsbad will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal. The prime contractor is required to notify the RE immediately of the DBE's inability or unwillingness to perform and provide reasonable documentation. In this situation, the prime contractor will be required to obtain the City of Carlsbad's prior approval of the substitute DBE and to provide copies of new or amended subcontracts, or documentation of good faith efforts. If the contractor fails or refuses to comply in the time specified, the City of Carlsbad's contracting office will issue an order stopping all or part of payment/work until satisfactory action has been taken. If the contractor still fails to comply, the contracting officer may issue a termination for default proceeding. XVIII Counting DBE Participation (§26.55) The City of Carlsbad will count DBE participation toward overall and contract goals as provided in the contract specifications for the prime contractor, subcontractor, joint venture partner with prime or subcontractor, or vendor of material or supplies. Page 9-39 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies XIX Certification (§26.83(a)) The City of Carlsbad ensures that only DBE firms currently certified on the Caltrans' directory will participate as DBEs in our program. XX Information Collection and Reporting Bidders List The City of Carlsbad 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 firms. Monitoring Payments to DBEs Prime contractors are required to maintain records and documents of payments to DBEs for three years following the performance of the contract. These records will be made available for inspection upon request by any authorized representative of the City of Carlsbad, Caltrans or FHWA. This reporting requirement also extends to any certified DBE subcontractor. Payments to DBE subcontractors will be reviewed by the City of Carlsbad to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation. Reporting to Caltrans The City of Carlsbad's - Final utilization of DBE participation will be reported to the DLAE using Exhibit 17-F of the Caltrans' LAPM. Confidentiality The City of Carlsbad will safeguard from disclosure to third parties information that may reasonably be regarded as cojafid^epjial business information, consistent with Federal, state, laws.- _ RaymorlSPatcnett, CityMvfeTTayBi- Date: ..'M J- Approved to Form . Ball, City Attorney £X-^ W^^ Date. 7- / »- « 6 • . This Disadvantaged Business Enterprises Program is accepted by: [Signature of DLAE] Date: Page 9-40 LPP 06-01 May 1,2006 I* Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies APPENDIX A TO PART 26 -- GUIDANCE CONCERNING GOOD FAITH EFFORTS I. When, as a recipient, you establish a contract goal on a DOT-assisted contract, a bidder must, in order to be responsible and/or responsive, make good faith efforts to meet the goal. The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting commitments for participation by DBE firms sufficient for this purpose. Second, even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This means the bidder must show it took all necessary and reasonable steps to achieve a DBE goal or other requirement of this part, which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful. II. In any situation in which you have established a contract goal, part 26 requires you to use the good faith efforts mechanism of this part. As a recipient, it is up to you to make a fair and reasonable judgment whether a bidder that did not meet the goal made adequate good faith efforts. It is important for you to consider the quality, quantity, and intensity of the different kinds of efforts that the bidder has made. The efforts employed by the bidder should be those one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements. We emphasize, however, your determination concerning the sufficiency of the firm's good faith efforts is a judgment call: meeting quantitative formulas is not required. III. The Department also strongly cautions you against requiring a bidder meet a contract goal (i.e., obtain a specified amount of DBE participation) in order to be awarded a contract, even though the bidder makes an adequate good faith efforts showing. This rule specifically prohibits you from ignoring bona fide good faith efforts. IV. The following is a list of types of actions which you should consider as part of the bidder's good faith efforts to obtain DBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases. A. Soliciting through all reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified DBEs who have the capability to perform the work of the contract. The bidder must solicit this interest within sufficient time to allow the DBEs to respond to the solicitation. The bidder must determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations. Page 9-41 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood the DBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces. C. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation. D. (1) Negotiating in good faith with interested DBEs. It is the bidder's responsibility to make a portion of the work available to DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of DBEs considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for DBEs to perform the work. (2) A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable. E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the contractor's efforts to meet the project goal. F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor. Page 9-42 LPP 06-01 May 1,2006 ^o Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. H. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs. V. In determining whether a bidder has made good faith efforts, you may take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise the question of whether, with additional reasonable efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but meets or exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts. Page 9-43 LPP 06-01 May 1,2006 Of Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies APPENDIX C RESOLUTION OF THE CITY OF CARLSBAD REGARDING NECESSITY OR EMERGENCY FOR SUBSEQUENT SUBCONTRACTOR IDENTIFICATION (REQUIRED BY PUBLIC CONTRACT CODE SECTION 4109 ENTITLED "Public Emergency Grounds For Change") A. EXPLANATION OF PUBLIC NECESSITY OR EMERGENCY: B. FACTS CONSTITUTING THE PUBLIC NECESSITY OR EMERGENCY: C. FINDINGS: D. RESOLUTION FOR SUBSEQUENT IDENTIFICATION OF SUBCONTRACTORS: E. CERTIFICATE OF SECRETARY 1. MOTION MADE AND DATE 2. VOTING RESULTS 3. SIGNATURES: (a) (Secretary) (b) (Chairperson) Page 9-44 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies LPP 06-01 Page 9-45 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies Exhibit 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies DISADVANTAGED BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENTATION AGREEMENT FOR LOCAL AGENCIES Page 9-46 LPP 06-01 May 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. III 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. Page 9-47 LPP 06-01 May 1,2006 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. Page 9-48 LPP 06-01 May 1,2006 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 9-49 LPP 06-01 May 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. Page 9-50 LPP 06-01 May 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 9-51 LPP 06-01 May 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. Page 9-52 LPP 06-01 May 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: Raymonb°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 Na'me of DLAE] Distribution: (1) Original -DLAE DBE Race-neutral Implementation Agreement for Local Agencies (05-'[ (2) Copy-local agency after signing by DLAE Page 9-53 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-& Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies Exhibit 9-B Local Agency DBE Annual Submittal Form TO: CALTRANS DISTRICT 11 District Local Assistance Engineer The amount of the Annual Anticipated DBE Participation Level (AADPL) and methodology are presented herein, in accordance with Title 49 of the Code of Federal Regulations, Part 26, and the State of California, Department of Transportation Disadvantaged Business Enterprise (DBE) Program Plan. The City of Carlsbad, submits our AADPL information. We have established an AADPL of 15 % for the Federal Fiscal Year 2005/2006, beginning on October 1, 2005, and ending on September 30, 2006. Methodology The overall goal methodology is a two-step process as described in 49 CFR Part 26, Section 26.41. This two-step process is intended to provide maximum flexibility, to ensure narrow program tailoring, and provide meaningful, demonstrable evidence of availability, based upon each agency's relevant market conditions. Stepl • A tabular list of all NAICS Codes applicable to typical Street Road, construction was created. • Each NAICS code provides the number of available certified DBE and the number of CBP Business listed in a separate column. • Calculation of the DBE percentage (base figure) by dividing the total number of available certified DBE's by the total number of CBP business listed in 2003. See attachment Exhibit Step 2 Projected DBE Participation for FY 2005-2006 The breakout of potential DBE participation on Federal DOT-assisted contracts is based on the following projects: Coastal Rail Trail Phase II Construction 15.8% DBE Participation Carlsbad Boulevard Bridge over RR Retrofit 15.8% DBE Participation Carlsbad Boulevard Bridge over RR Concrete Barrier 13.1% DBE Participation Carlsbad Boulevard Bridge over Encinas Creek 13.1% DBE Participation Rancho Santa Fe Road Mitigation Construction 13.8% DBE Participation Average 14.4% Disparity Study The City of Carlsbad is not aware of any current disparity studies within the City's jurisdiction for consideration in the goal-setting analysis and/or adjustment. Page 9-54 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-£ Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies Breakout of Anticipated Annual DBE Participation Level • The City estimates the overall AADPL of 15% will be met through race-neutral participation. Disadvantaged Business Enterprise Liaison Officer (DBELO) The City of Carlsbad has designated the following individual as the Disadvantaged Business Enterprise Liaison Officer (DBELO): Steven C. Jantz, Associate Engineer, City of Carlsbad, Public Works Department, Engineering Division, 1635 Faraday Avenue Carlsbad, California, 92008. Phone Number (760) 602-2738, Fax Number (760) 602-8562, e-mail address, siant(o)ci.carlsbad.ca.us. The DBELO is responsible for implementing all aspects of the DBE program and ensuring the City of Carlsbad compOlies with all provisions of 49 CFR Part 26. Prompt Pay Federal regulation (49 CFR 26.29) requires one of three methods be used in federal-aid contracts to ensure prompt and full payment of any retainage, kept by the prime contractor or subcontractor, to a subcontractor. Attached is a listing of the three methods. On the attachment, please designate which prompt payment provisions the local agency will use.) RaymondCSTPatchett - City Manager ^\ Date (760) 434-2821 Phone Number Reviewed by Caltrans: (Signature of Caltrans District Local Assistance Engineer [DLAE]) ' Date Distribution: (1) Original -DLAE DBE Annual Submittal Form (05/01/06) (2) Copy-local agency after signing by DLAE Page 9-55 LPP 06-01 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9=2 Disadvantaged Business Enterprise Race-Neutral • _ Implementation Agreement for Local Agencies (Attachment) Prompt Payment of Withheld Funds to Subcontractors Federal regulation (49 CFR 26.29) requires one of the following three methods be used in federal-aid contracts to ensure prompt and full payment of any retainage kept by the prime contractor or subcontractor to a subcontractor. Please check the box of the method chosen by the local agency to ensure prompt and full payment of any retainage. CD 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 D 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. [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. Page 9-56 LPP 06-01 May 1, 2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies EXHIBIT A CITY OF CARLSBAD FY 2005-2006 DOT-ASSISTED PROJECTS ESTIMATED DBE PARTICIPATION FOR FUTURE PROJECTS COASTAL RAIL TRAIL CONSTRUCTION (Phase II) Description Clearing & Grubbing Grading Erosion Control Irrigation System Aggregate Base Paving Asphalt Minor Concrete Structure Reinforcing Concrete Pipe UCP '< NAICS 237310 .CENSUS NA1CS 23711 23891 23899 23731 DBEs 132 "All Firms 835 ' ' '"', f • Availability 15.8% Project Cost $2,788,417.50 Bid Item Amount $192,500 $520,712 $125,812 $144,375 $61,875 $215,187 $1,507,330 $20,625 $2,788,417 DBE Contract Amount $30,415 $82,273 $19,878 $22,811 $9,776 $34,000 $238,158 $3,258 $440,570 DBE Goal ' &' .'^ ' JiSf- *A t|# -4.' 15.8% CARLSBAD BOULEVARD SEISMIC RETROFIT CONSTRUCTION Description Grading Erosion Control Reinforcing Concrete Pipe UCP NAICS 237310 CENSUS NAICS 23711 23891 23731 DBEs 132 All Firms 835 Availability 15.8% Project Cost $1,000,000.00 Bid Item Amount $662,600 $5,000 $13,720 $681,320 DBE Contract Amount $104,690.00 $790.00 $2,168.00 $107,648.00 DBE Goal "& f £ 15.8% CARLSBAD BOULEVARD BRIDGE OVER RR CONCRETE BARRIER REPAIR Description Professional Services (PE & CE) Construction UCP NAICS 541330 237310 CENSUS NAICS 541330 23731 DBEs 231 All Firms 1763 Availability 13.1% Project Cost $191,000 Bid Item Amount $41,000 $150,000 $191,000 DBE Contract Amount $5,370 $19,650 $25,020 DBE Goal 13.1% CARLSBAD BOULEVARD BRIDGE OVER ENCINAS CREEK Description Professional Services (PE & CE) Construction UCP NAICS 541330 237310 CENSUS NAICS 541330 23731 DBEs 231 All Firms 1763 Availability 13.1% Project Cost $2,219,250 Bid Item Amount $ 538,000 $1,681,250 $2,219,250 DBE Contract Amount $70,478 $220,244 $290,722 DBE Goal 'If 13.1% RANCHO SANTA FE ROAD WETLAND MITIGATION CONSTRUCTION Description Grading Landscape and Irrigation System UCP NAICS 237310 CENSUS NAICS 23411 23593 DBEs 49 All Firms 355 Availability 13.8% Project Cost $2,000,000 Bid Item • DBE Contract DBE Amount Amount Goal $1,345,000 $655,000 $2,000,000 $185,610 $90,390 $276,000 ^13.8% TOTAL ALL PROJECTS $7,879,987.00 $1,140,682 14.4% LPP 06-01 Page 9-57 May 1,2006 Local Assistance Procedures Manual EXHIBIT 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies Page 9-58 LPP 06-01 May 1,2006 DBE ORGANIZATIONAL CHART EXHIBIT "B" CITY OF CARLSBAD PUBLIC WORKS DIVISION ENGINEERING DEPARTMENT 1635 FARADAY AVENUE CARLSBAD, CA. 92008 CITY COUNCIL CITY MANAGER RAYPATCHETT (760) 434-2821 rpatc@ci. carlsbad. co. us PUBLIC WORKS DIRECTOR GLENN PRUM (760) 602-2730 gprui@ci. carlsbad. co. us CITY ENGINEER SKIPHAMMANN (760) 602-2407 shamm@ci. carlsbad co. us DEPUTY CITY ENGINEER DAVID HAUSER (760) 602-2739 dhaus@ci. carlsbad. co. us ASSOCIATE ENGINEER STEVEN JANTZ (760) 602-2738 sjan t@ci.carlsbad. co. us ~1 |