HomeMy WebLinkAboutCalifornia Department of Transportation - CALTRANS - 2009-06-01Z 7-19-, 7�;7-
Council/Agency Meeting Held:
Deferred/Continued to:
;C}Ap rovbd ❑ o ditionally prov d ❑ Denied
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Council Meeting Date: 6/1/2009
Department ID Number: PW 09-16
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY C CIL MEMBERS
SUBMITTED BY: FRED A. WILSON, CITY ADMINIS ORSBLI PREPARED BY: TRAVIS K. HOPKINS, PE, DIRECT OF4C KS
SUBJECT: Disadvantaged Business Enterprise (DBE) Program Implementation
Agreement
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue: The City's execution of the Disadvantaged Business Enterprise (DBE)
Program Implementation Agreement with the California Department, of Transportation
(Caltrans) is necessary to remain eligible to receive Federal -aid funding for transportation
related projects.
Funding Source: No funding source is necessary for this action.
Recommended Action: Motion to:
Authorize the Director of Public Works to execute the California Department of
Transportation Disadvantaged Business Enterprise Program Implementation Agreement for
Local Agencies.
Alternative Action(s): Deny the recommended action and indefinitely suspend the City's
eligibility to participate in federally funded transportation projects.
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 6/1/2009 DEPARTMENT ID NUMBER: PW 09-16
Analysis: On June 5, 2006, the City authorized the Director of Public Works to execute the
DBE Race -Neutral Implementation Agreement for the City of Huntington Beach to remain
eligible to receive Federal -aid funds for local transportation projects. Due to a recent change
in methodology, both the Federal Highway Administration (FHWA) and the State of California
Department of Transportation (Caltrans) is requiring all local agencies intending to participate
in Federally funded transportation projects to utilize the prescribed Race -Neutral / Race -
Conscious methodology in establishing their overall annual DBE goal.
Per Caltrans' requirements, the attached DBE Program Implementation Agreement is to be
executed by the City no later than June 2, 2009.
Public Works Commission Action: Not necessary for this action.
Strategic Plan Goal: 1-1 Improve the City's plan for funding and completing infrastructure
needs, and develop strategies for resolving crucial infrastructure problems to preserve the
physical foundation of the community and enable the community's value to grow.
Environmental Status: Not applicable.
Attachment(s):
-2- 5/18/2009 1:26 PM
ATTACHMENT #1 -----Jl
Exhibit 9-A Disadvantaged Business Enterprise Implementation Agreement for Local Agencies
DEPARTMENT OF TRANSPORTATION
DISADVANTAGED BUSINESS ENTERPRISE
IMPLEMENTATION AGREEMENT
LOCAL AGENCIES
March 4, 2009
CALIFORNIA DEPARTMENT OF TRANSPORTATION DISADVANTAGED BUSINESS
ENTERPRISE IMPLEMENTATION AGREEMENT
For the City of Huntington Beach, hereinafter referred to as "RECIPIENT."
I (Definition of Tereus
The terms used in this agreement have the meanings defined in 49 CFR § 26.5.
I1 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)
G The RECIPIENT will provide to the Caltrans District Local Assistance Engineer (DLAE) a completed Local
Agency DBE Annual Submittal Form (Exhibit 9-13) by June l 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
surety 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
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. [Specify resources available to the DBELO; e.g., the DBELO has a staff
of two professional employees assigned to the DBE program on a full-time basis and two support personnel who
devote a portion of their time to the 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:
' Gathers and reports statistical data and other information as required.
J 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."]
March 4, 2009
2
B. PROMPT PAYMENT
Prompt Prottress 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 DBE
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 10-0(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 10-0(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.
c
March 4, 2009
XVII Certification (§26.83(a))
RECIPIENT ensures that only DBE firms currently certified by the California Unified Certification Program will
rticipate as DBEs on DOT -assisted contracts.
I XVIH Confidentiality
RECIPIENT will safeguard from disclosure to third parties, information that may reasonably be regardec as
confidential business information consistent with federal, state, and local laws.
Travis K. Hopkins, P.E., Director of Public Works
City of Huntington Beach
Phone Number: (714) 536-5431
This California Department of Transportation's Disadvantaged Business Enterprise Program Implementation
Agreement is accepted by:
Date: 7 oc
[Signature of Dl�,AEJ
-- � p vY. 0�- N O lA`r �•
[Print Name of DLAE]
Distribution: (1) Original — DLAE
(2) Signed copy by the DLAE — Local Agency
(Updated: March 4, 2009)
March •I, 2009
INITIATING DEPARTMENT: Public Works
SUBJECT: Disadvantaged Business Enterprise (DBE) Program
Implementation Agreement
COUNCIL MEETING DATE: June 1, 2009
RCA ATTACHMENTS
,
STATUS -
Ordinance w/exhibits & legislative draft if
( g' applicable)
Attached
❑
Not Applicable
❑
Resolution (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
❑
Tract Map, Location Map and/or other Exhibits
Attached
❑
Not Applicable
❑
Contract/Agreement (w/exhibits if applicable)
Attached
❑
(Signed in full by the City Attorney)
Not Applicable
❑
Subleases, Third Party Agreements, etc.
Attached
❑
(Approved as to form by City Attorney)
Not Applicable
❑
Certificates of Insurance (Approved by the City Attorney)
Attached
❑
Not Applicable
❑
Fiscal Impact Statement (Unbudgeted, over $5,000)
Attached
❑
Not Applicable
❑
Bonds (If applicable)
El
Notached
t Applicable
❑
Staff Report (If applicable)
Attached
❑
t Applicable
❑
Commission, Board or Committee Report (If applicable)
Attached
❑
Not Applicable
❑
Findings/Conditions for Approval and/or Denial
Attached
❑
Not Applicable
❑
RCA Author: LJT:jg