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
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Da
CONTINUED TO DATE SPECIFIC D
CONTINUED TO DATE UNKNOWN D
RETURNED TO STAFF D
OTHER - SEE MINUTES D
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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.
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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.
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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.
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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:
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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:
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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.
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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.
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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.
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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)
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Exhibit 9-A Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local
Agencies
DISADVANTAGED BUSINESS ENTERPRISE
RACE-NEUTRAL
IMPLEMENTATION AGREEMENT
FOR
LOCAL AGENCIES
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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