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HomeMy WebLinkAbout2009-05-05; City Council; 19787; Disadvantaged Business Enterprise ProgramCITY OF CARLSBAD - AGENDA BILL 19,787AB# MTG. 5/5/09 DEPT. ENG APPROVE AND ADOPT THE CITY OF CARLSBAD DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM DEPT. HEAD CITY ATTY. CITYMGR. (jj> _approving the City of Carlsbad Disadvantaged Business RECOMMENDED ACTION: Adopt Resolution No. 2009-085 Enterprise (DBE) Program Implementation Agreement as contained within City Council Policy Statement No. 67 and authorizing the City Manager to execute the DBE Program Implementation Agreement for the City of Carlsbad, California. ITEM EXPLANATION: The City of Carlsbad is required to adopt a Disadvantaged Business Enterprise (DBE) Program in order to continue receiving federal transportation funds for design and/or construction of applicable projects. The purpose of the DBE Program is to ensure a good faith effort is made to recruit and retain DBE firms for work on City projects which include federal transportation funds. The DBE Program sets a "goal" for inclusion of the DBE firms based on a ratio of available DBE firms to non- disadvantaged firms. The goal is recalculated each year based on factors used in the present calculation combined with updated DBE participation data as warranted. By June 2, 2009, the California Department of Transportation (Caltrans) and local agencies receiving federal transportation funds must begin transitioning to the new Race Conscious DBE (RC DBE) Program and adopt a new California Department of Transportation DBE Program Implementation Agreement. Under the new RC DBE Program, local agencies must incorporate an appropriate DBE race-conscious goal for Underutilized Disadvantaged Business Enterprise (UDBE) companies in all future construction projects using federal transportation funding. The Caltrans Availability and Disparity Study revealed statistically significant underutilization in four of the six groups presumed to be disadvantaged as defined by the Code of Federal Regulation, 49 CFR Part 26. The four groups are African American, Asian Pacific American, Native American and Women. Public agencies advertising projects with federal transportation funding must reach out to UDBE firms and encourage UDBE companies to bid on the public projects. In addition, the RC DBE Program requires prime contractors to make a specific amount of the contract available to Caltrans certified UDBE's. To ensure compliance, local agencies must incorporate the new race conscious contract specifications in all consultant and construction contracts which use federal transportation funds. The Disadvantage Business Enterprise Program Implementation Agreement formalizes the responsibilities of both Caltrans and the City to ensure compliance with all elements of Title 49 Part 26 of the CFR entitled "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs." Adoption of the Implementation Agreement is necessary to ensure the City complies with the DBE requirements so federal transportation funds can be used to design and construct transportation projects. The Implementation Agreement is attached to City Council Policy Statement No. 67. The Implementation Agreement will stay in effect until such time as the federal government requires revisions in order to comply with applicable federal law as they relate to DBE program requirements. DEPARTMENT CONTACT: Steve Jantz, (760) 602-2738, steve.iantz@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D D D D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER-SEE MINUTES D Page 2 As part of the City Council's action, staff is recommending the Council authorize the City Manager to execute the Disadvantaged Business Enterprise (DBE) Program Implementation Agreement for the City of Carlsbad, California. ENVIRONMENTAL IMPACT: The Carlsbad Disadvantaged Business Enterprise (DBE) Program Implementation Agreement does not constitute a "project" pursuant to Section 15378(b)(4) of the California Environmental Quality Act (CEQA) and no environmental review is required. 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. FHWA has indicated that failure to implement the overall goal and contract goals could result in the imposition of sanctions authorized by 23 CFR Section 1.36. The estimated cost for the four projects with federal transportation funds in the upcoming City Capital Improvement Program (CIP) is estimated at $6.1M. Staff time to implement the revised DBE Program is estimated to remain the same as past programs. EXHIBITS: 1. Resolution No. 2009-085 approving the City of Carlsbad Disadvantaged Business Enterprise (DBE) Program Implementation Agreement as contained within City Council Policy Statement No. 67 and authorizing the City Manager to execute the DBE Program Implementation Agreement for the City of Carlsbad, California. 2. Disadvantaged Business Enterprise (DBE) Program Implementation Agreement for the City of Carlsbad, California, dated May 2009. /^ / 1 RESOLUTION NO. 2009-085 2 A RESOLUTION APPROVING THE CITY OF CARLSBAD 3 DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM IMPLEMENTATION AGREEMENT AS CONTAINED WITHIN CITY 4 COUNCIL POLICY STATEMENT NO. 67 AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE DBE PROGRAM 5 IMPLEMENTATION AGREEMENT FOR THE CITY OF CARLSBAD, CALIFORNIA. 6 7 WHEREAS, the Federal Department of Transportation, under the Code of Federal 8 Regulations, Title 49; Part 23, requires each local government entity receiving Federal n Transportation funds to implement a Disadvantaged Business Enterprise Programy ("DBE Program"); and 10 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 Caltrans Civil Rights Program has made technical changes to the Disadvantaged Business Enterprise (DBE) Program Plan consisting of modifying the race- 15 conscious measures to include considerations and goals for Underutilized Disadvantaged 1 fi Business Enterprises (UDBE's); and 17 WHEREAS, Caltrans is requiring the City of Carlsbad to execute the DBE Program 18 Implementation Agreement for the City of Carlsbad, California, to ensure compliance with all ig elements of Title 49, Part 26 of the CFR entitled "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs"; and 20 WHEREAS, adoption of the DBE Program Implementation Agreement for the City of 21 Carlsbad, California, will enable the City to receive federal funding for existing and future Capital 22 Projects. 23 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 24 California, as follows: 1. That the above recitations are true and correct.25 2. That the City Council of the City of Carlsbad, California, does hereby approve the 26 Disadvantaged Business Enterprises Program Implementation Agreement for the City of Carlsbad, 27 28 1 California, attached to AB # 19.787 and incorporated in City Council Policy 2 Statement No. 67. 3. That the City Council of the City of Carlsbad, California, authorizes the O City Manager to execute the DBE Program Implementation Agreement for the City of Carlsbad, 4 California. 5 /// 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 20 21 22 23 24 25 26 27 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 5th day of May, 2009, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: None. ATTEST: LORRAINE M. YV0OD, City Clerk CALIFORNIA DEPARTMENT OF TRANSPORTATION DISADVANTAGED BUSINESS ENTERPRISE PROGRAM IMPLEMENTATION AGREEMENT FOR LOCAL AGENCIES EXHIBIT 9-A CITY OF CARLSBAC May, 2009 March 4,2009 , -e? CALIFORNIA DEPARTMENT OF TRANSPORTATION DISADVANTAGED BUSINESS ENTERPRISE 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 Disadvantaged Business Enterprise Program 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 that their annual overall DBE participation percentage is narrowly tailored, in accordance with applicable law. • To ensure that 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. March 4,2009 IV Annual DBE Submittal Form (§26.21) The RECIPIENT will provide to the Caltrans District Local Assistance Engineer (DLAE) a completed Local Agency DBE Annual Submittal Form (Exhibit 9-B) 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 Overall Statewide Annual DBE Goal (§26.51) RECIPIENT must meet the maximum feasible portion of its AADPL by using race-neutral means of facilitating DBE participation. Race-neutral DBE participation includes any time a DBE wins a prime contract through customary competitive procurement procedures, is awarded a subcontract on a prime contract that does not carry a DBE goal, or even if there is a DBE goal, wins a subcontract from a prime contractor that did not consider its DBE status in making the award (e.g., a prime contractor that uses a strict low-bid system to award subcontracts). Race-neutral means include, but are not limited to, the following: 1. Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate DBE, and other small businesses, participation (e.g., unbundling large contracts to make them more accessible to small businesses, requiring or encouraging prime contractors to subcontract portions of work that they might otherwise perform with their own forces); 2. Providing assistance in overcoming limitations such as inability to obtain bonding or financing (e.g., by such means as simplifying the bonding process, reducing bonding requirements, eliminating the impact of surely costs from bids, and providing services to help DBEs, and other small businesses, obtain bonding and financing); 3. Providing technical assistance and other services; 4. Carrying out 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; provision of 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 types 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 historically been low; 8. Ensuring distribution of your DBE directory, through print and electronic means, to the widest feasible universe of potential prime contractors; and 9. Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and conduct business through electronic media. March 4,2009 a VI Race Conscious Means of Meeting the Overall Statewide Annual DBE Goal (§26.51 (d)) RECIPIENT must establish contract goals for Underutilized Disadvantaged Business Enterprises (UDBEs) to meet any portion of your AADPL you do not project being able to meet using race-neutral means. UDBEs are limited to these certified DBEs that are owned and controlled by African Americans, Native Americans, Women, and Asian Pacific Americans. VII 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. VIII 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 that the RECIPIENT is fully and properly advised concerning DBE Program Plan matters. The DBELO has direct, independent access to the Public Works Director of the City of Carlsbad concerning DBE matters. The DBELO responsibilities reside in the Planning and Programs Division of the Engineering Department of the Carlsbad Public Works Major Service Area (MSA). The Planning and Programs Division consists of a Deputy City Engineer, a Senior Civil Engineer Engineer, an Associate Engineer and three Engineering Technicians. In addition to the Planning and Programs staff, the support of the Public Works, Engineering Department administrative staff is also available as needed. It is the Planning and Programs Division's primary function to implement provisions of various state, federal and local construction related programs such as the DBE Program. The name, address, telephone number, electronic mail address, and an organization chart displaying the DBELO's position in the organization are found in Attachment A 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 that 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. March 4,2009 IX 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).] X 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. XI 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. XII Required Contract Clauses (§§26.13,26.29) RECIPIENT ensures that 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. [Note - This language is to be used verbatim, as is stated in §26.13(b). See Caltrans Sample Boiler Plate Contract Documents on the Internet at www.dot.ca.gov/hq/LocalPrograms under "Publications."] \0 March 4,2009 B. PROMPT PAYMENT Prompt Progress Payment to Subcontractors The local agency shall require contractors and subcontractors to be timely paid as set forth 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 DDE and non-DBE subcontractors. Prompt Payment of Withheld Funds to Subcontractors The local agency shall ensure prompt and full payment of retainage from the prime contractor to the subcontractor within thirty (30) days after the subcontractor's work is satisfactorily completed and accepted. This shall be accompanied by including 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. March 4,2009 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 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. XIII 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). XIV Transit Vehicle Manufacturers (§ 26.49) If FTA-assisted contracts will include transit vehicle procurements, RECIPIENT 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. XV Bidders List (§26.11(c)> 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/nonDBE status, age, and annual gross receipts of the firm. XVI Reporting to the DLAE RECIPIENT will promptly submit a copy of the Local Agency Bidder/Proposer-UDBE Commitment (Consultant Contract), (Exhibit 10-O(1) "Local Agency Bidder/Proposer-DBE Commitment (Consultant Contract)") or Exhibit 15-G(1) "Local Agency Bidder-UDBE Commitment (Construction Contract) to the DLAE at the time of award of the consultant or construction contracts. RECIPIENT will promptly submit a copy of the Local Agency Bidder-DBE Information (Exhibit 15-G(2) "Local Agency Bidder-DBE (Construction Contracts) - Information" or Exhibit 10-O(2) "Local Agency Proposer/Bidder-DBE (Consultant Contracts)-Information" of the LAPM) to the DLAE at the time of execution of consultant or construction contract. RECIPIENT will promptly submit a copy of the Final Utilization of DBE participation to the DLAE using Exhibit 17-F "Final Report - Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors" of the LAPM immediately upon completion of the contract for each consultant or construction contract. March 4,2009 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. 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. Phone Number: 760-602-2738T.-ica Hi Ida brand, City Manager (Print Name and Title) ADMINISTERING AGENCY (Authorized Governing Body Representative) This California Department of Transportation's Disadvantaged Business Enterprise Program Implementation Agreement is accepted by: Date: [Signature of DLAE] [Print Name of DLAE] Distribution: (1) Original-DLAE (2) Signed copy by the DLAE - Local Agency (Updated: March 4, 2009) 13 March 4,2009 DBE ORGANIZATIONAL CHART EXHIBIT "A" CITY OF CARLSBAD PUBLIC WORKS DIVISION ENGINEERING DEPARTMENT 1635 FARAD A Y A VENUE CARLSBAD, CA 92008 City Council City Manager Lisa Hildabrand (760) 434-2821 Lisa. Hildabrand@carlsbadca. gov Public Works Director Glenn Pruim (760) 602-2730 Glenn. Pruim@carlsbadca.gov City Engineer Bob Johnson (760) 602-2752 Bob.Johnson@carlsbadca.gov Deputy City Engineer David Mauser (760) 602-2739 David.Hauser@carlsbadca.gov Senior Civil Engineer Marshall Plantz (760) 602-2766 Marshall. Plantz@carlsbadca.gov Associate Engineer Steven Jantz (760) 602-2738 Steve.Jantz@carlsbadca.gov