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HomeMy WebLinkAboutCC AG PKT 2009-03-23 #JAGENDA STAFF REPORT DATE: March 23, 2009 TO: Honorable Mayor and City Council THRU: David Carmany, City Manager FROM: Vince Mastrosimone, Director of Public Works SUBJECT: DISADVANTAGED BUSINESS ENTERPRISE (DBE) - APPROVAL OF FY 2008/09 GOAL AND METHODOLOGY SUMMARY OF REQUEST: The City Council is asked to adopt Resolution No. 5851 approving the Annual Anticipated DBE Participation Level FY 2008/09 Agreement with the California State Department of Transportation. BACKGROUND: The California State Department of Transportation (Caltrans) has recently changed the DBE Program requirements to include Race Conscious component. (See attached letter.) Caltrans is now soliciting each city to adopt the new DBE Program. The new Race Conscious DBE Program is required for all Federally Assisted projects receiving Federal funds. The City anticipates Federal funding from the Economic Stimulus Plan. The dollar amount the City shall receive, if any, has not been determined yet. Staff has completed the Annual Anticipated DBE Participation Level (AADPL) and resulted with a 3.3% overall goal. Staff attached a FAQ's sheet with a website for additional information on how to achieve the goal and methodology at: http://www.dot.ca.gov/hq/LocalPrograms/DBE_CRLC.html FINANCIAL IMPACT: There is no impact at this time. Agenda Item J Page 2 RECOMMENDATION: The City Council adopt Resolution No. 5851 approving the Annual Anticipated DBE Participation Level FY 2008/09 Agreement with the California State Department of Transportation. SUB I ED Vinc astrosimone Director of Public Works NOTED AND APPROVED: David Carm y, City Manager Attachments: A. Resolution No. 5851 B. Caltrans Letter C. Agreement and Submittal Form D. FAQ's RESOLUTION NUMBER 5851 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH APPROVING THE DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM AND OVERALL ANNUAL ANTICIPATED GOAL OF THREE POINT THREE PERCENT (3.3%) FOR FEDERAL FISCAL YEAR 2008/09 FOR ADOPTION AND SUBMISSION TO THE CALIFORNIA DEPARTMENT OF TRANSPORTATION (CALTRANS) WHEREAS, the City of Seal Beach is required to develop and submit a Disadvantaged Business Enterprise (DBE) Program and Overall Annual Goal for DBE participation for U.S. Department of Transportation (DOT) assisted contracts as a condition of federal financial assistance, WHEREAS, in accordance with DBE regulations, the City of Seal Beach has completed the Annual Anticipated DBE Participation Level (AADPL) and resulted with a 3.3% overall goal for Federal Fiscal Year 2008/09. THE CITY COUNCIL OF THE CITY OF SEAL BEACH HEREBY RESOLVES AS FOLLOWS: SECTION 1. Approves the DBE Program and Overall Annual Goal for Federal Fiscal Year 2008/09 is hereby approved. SECTION 3. Appoints City Manager as agent of the Seal Beach City Council to authorize and execute the Disadvantaged Business Enterprise (DBE) Program and Overall Annual Goal for Federal Fiscal Year 2008/09 and submission to the California Department of Transportation (Caltrans) on behalf of the city for funding authority approval. PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal Beach on this 23rd day of March , 2009 by the following vote: AYES: Councilmembers NOES: Councilmembers ABSENT: Councilmembers ABSTAIN: Councilmembers ATTEST: Mayor City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Linda Devine, City Clerk of Seal Beach, California, do hereby certify that the foregoing resolution is the original copy of Resolution Number 5851 on file in the office of the City Clerk, passed, approved, and adopted by the City Council of the City of Seal Beach, at a regular meeting thereof held on the 23rd day of March , 2009. City Clerk STATE OF CALIFORNIA-BUSINESS TRANSPORTATION AND HOUSIIYG AGENCY nNnr City R? r,[` amor DEPARTMENT OF TRANSPORTATION DMSION OF LOCAL ASSISTANCE - M.S. 1 1120 N STREET P. O. BOX 942874 SACRAMENTO, CA 94274-0001 PHONE (916) 653-1776 FAX (916) 654-2409 TTY 711 March 4, 2009 TO: ALL CITIES AND COUNTIES IN CALIFORNIA METROPOLITAN PLANNING ORGANIZATIONS REGIONAL TRANSPORTATION PLANNING AGENCIES Dear Directors: Re: Mandatory Race Conscious DBE Program ~~ J Flez your power! Be energy effu:[ent! The Federal Highway Administration (FHWA) has approved the California Department of Transportation's 2009 Disadvantaged Business Enterprise (DBE) Annual Overall Goal. FHWA's approval requires the immediate implementation of the new DBE Program that includes a Race Conscious component (RC DBE Program). Effective immediately the California Department of Transportation (Caltrans) and local agencies receiving federal-aid funds must begin transitioning to the new RC DBE Program. Transition Period Local agencies may have until June 2, 2009 to transition to the newly approved RC DBE Program. This allows local agencies until June 2, 2009, to adopt and execute the new RC DBE Program and allows projects authorized to proceed under the old Race Neutral (RN) DBE program to proceed to contract awazd. As soon as possible but before June 2, 2009, local agencies must adopt and execute a new California Department of Transportation DBE Program Implementation Agreement (DBE Implementation Agreement). Upon execution of the new DBE Implementation Agreement, local agencies shall proceed under the new RC DBE Program. Under the new RC DBE Program, local agencies must incorporate the new race conscious contract specifications into all federal-aid consultant and construction contracts. These specifications are incorporated in the new contract boilerplate language referenced below. Impacts to Federal-Aid Proiects • ALL CONTRACTS AWARDED AFTER June 2, 2009 SHALL INCLUDE RC DBE REQUIREMENTS (i.e. contract goals, good faith efforts}. • Any project that receives Authorization to Proceed under the old RN DBE • requirements must award the contract by June 2, 2009. • Any Authorization to Proceed received under the old RN DBE requirements that does not meet the June 2, 2009 contract award deadline, shall be re-evaluated. "Coltrmu improves mobility ocraw California „ Cities & Counties in California MPOs RTPAs March 4, 2009 Page 2 Local agencies must resubmit their projects to Caltrans for approval to ensure compliance with the new RC DBE requirements prior to bid opening. Authorizations to Proceed will be withdrawn if projects do not comply with the new RC DBE requirements. • Contracts awarded after June 2, 2009, without meeting the new RC DBE requirements will be ineligible for federal funding. • Local agencies' Requests for Aathorization to Proceed for projects under the old RN DBE Program will continue to be received and processed subject to the preceding conditions. • In submitting Requests for Authorization to Proceed for projects under the old RN DBE Program, the project sponsors need to be mindful of the minimum advertising period of three weeks, and the time it takes for bid opening and contract approval by their governing bodies. • Requests for Authorization to Proceed with the new RC DBE requirements may be submitted for processing and have funds obligated/authorized before the District Local Assistance Engineer (DEAF) receives the new DBE Implementation Agreements; however, projects shall not be awarded prior to the approval of the new DBE Implementation Agreement by the DLAE. • Existing federal-aid project contracts awarded with race neutral requirements shall continue under the old RN DBE Program. Contract Goals Limited to Underutilized Disadvantaged Business Enterprises (UDBEs) Contract goals and the Good Faith Effort requirement are reinstated; however, they are limited to Underutilized DBEs (UDBEs). The findings from 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 Regulations, 49 CFR Part 26. The four groups are African American, Asian Pacific American, Native American and Women. Contract goals will be limited to these four groups of UDBEs. Use of the UDBEs above the contract goal and/or use of DBEs owned and controlled by Hispanic Males or Subcontinent Asian Males shall be reported and counted toward the Race Neutral portion of the local agencies' overall Anticipated Annual DBE Percentage Levels (AADPLs). Old RN and New RC DBE Forms. Boilerplate Specifications For contracts that will be advertised and awarded under the old RN DBE Program, the appropriate DBE forms will be available on the Local Assistance Website: htty://www.dot.ca.gov/hq/L.ocalProarams/DBE CRLC html You may download the new DBE Implementation Agreement and consultant and construction contract boilerplate language from the Local Assistance website at: httn://www.dot.ca.gov/hq/L,ocalPrograms/ "carunns rmprover mobirrry across Col~ra" Cities & Counties in California MPOs RTPAs March 4, 2009 Page 3 For specific guidance on federal-aid consultant and construction contracts and access to the new DBE forms, please refer to the enclosures addressing consultant contracts and construction contracts. Local Assistance Procedures Manual (LAPM) The Division of Local Assistance will be issuing the changes to the LAPM. Until the LAPM changes are issued, the updated forms, guidance, and Frequently Asked Questions are available on the Caltrans, Division of Local Assistance (DLA) website: http://www.dot.ca.g v/hq/I.ocalProgtams/ Annual Anticipated DBE Percentage Levels (AADPLI Local agencies are not required to resubmit previously approved 2008/2009 AADPLs to include segregated Race Conscious (RC) and Race Neutral (RN) components; however, contract goals shall be calculated and placed on all contracts after the local agency has ezecuted the new DBE Implementation Agreement. The 2009/2010 AADPLs shall report segregated RC and RN anticipated percentage level components. Guidance for AADPL calculation under the new RC DBE Program is available at the Caltrans DLA website under "Announcements." If you have questions, please refer to the Frequently Asked Questions posted on the Caltrans, DLA website: http://www.dot.ca.gov/hq/LocalPmgrams/befnre contacting your DLAE. Sincere , • i, DENIX D. ANBIAH, Chief Division of Local Assistance Enclosures c: Local Agency DBE Liaison Officers "Calnnnr improves mobiii[y access California" Division of Locat Assistance Enclosure i ~ 1 ~~ Office of Procedures Development and Training March 4, 2009 ~/ Enclosure 1 Consultant Contracts: Contracts awarded prior to June 2, 2009, whose authorizations were granted prior to the adoption of the Race Conscious DBE Implementation Agreement may follow the Race Neutral DBE Program. All contracts awarded after June 2, 2009 must follow the Race Conscious DBE Program and use the following new Race Conscious LAPM Exhibits currently located on the Caltrans Local Assistance website under "Announcements." • Exhibits 3-A, 3-B, or 3-C: Request to Proceed with Preliminary Engineering, Right-of--Way, or Utility Relocation • Exhibit 3-E: Request for Authorization to Proceed Data Sheet(s) • Exhibit 10-C: Consultant Agreement Reviewers Checklist • Exhibit 10-D: Consultant Agreement Outline • Exhibit 10-I: Notice to Bidders/Proposers DBE Requirements and Instructions • Exhibit 10-J: Standard Agreement for Subcontractor/DBE Participation • Exhibit 10-0(1): Local Agency Bidder/Proposer UDBE Commitment (Consultant Contracts) • Exhibit 10-0(2): Local Agency Bidder/Proposer DBE Commitment (Consultant Contract) • Exhibit 17-F: Final Report Utilization of DBE, First-Tier Subcontractors r~ioft Fileoama 03-03-20091t<Faclosuie l.doc Fsepa~adbY~ I~~ul Division of Local Assistance Enclosure 2 ~~ ~ ~~ Office of Procedures Development and Training IMamh 4~ 2009 t ~ Enclosure 2 Construction Contracts: Contracts to be advertised and awarded before the execution of the new DBE Implementation Agreement and before June 2, 2009, may proceed to advertise and award using Race Neutral boilerplate specifications and Race Neutral LAPM Exhibits 12-D, 15-A, 15-B, 15-G. 15-I, 15-L and 17-F. All other contracts shall use the new Race Conscious boilerplate specifications and the following new Race Conscious LAPM Exhibits currently located on the Caltrans Local Assistance website under "Announcements:" • Exhibit 3-D: Request for Authorization to Proceed with Construction • Exhibit 3-E: Request for Authorization to Proceed Data Sheet(s) • Exhibit 12-D: PS&E Checklist • Exhibit 15-A: Local Agency Construction Contract Administration Checklist • Exhibit 15-B: Resident Engineer's Construction Contract Administration Checklist • Exhibit 15-G(1): Local Agency BidderlProposer UDBE Commitment (Construction Contracts) • Exhibit 15-G(2): Local Agency Bidder/Proposer DBE Commitment (Construction Contracts) • Exhibit 15-H: Good Faith Efforts Submittal • Exhibit 15-I: Local Agency Bid Opening Checklist • Exhibit 1 S-L: Local Agency Contract Award Checklist • Exhibit 17-F: Final Report Utilization of DBE, First-Tier Subcontractors Page 1 of 1 Filename: 03-03-2009 !tr Enclosure 2.doc Plod by: [PCazrollj CALIFORNIA DEPARTMENT OF TRANSPORTATION DISADVANTAGED BUSINESS ENTERPRISE IMPLEMENTATION AGREEMENT For the City of Seal Beach, hereinafter referred to as "RECIPIENT." 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 RECII'IENT 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 ofDOT-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 fums 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.'n 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 RECII'IENT will provide to the Caltrans District Local Assistance Engineer (DEAF) 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 RECIlIENT 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 VI Race Conscious Means of Meeting the Overall Statewide Annual DBE Goal (§26.51(d)) RECII'IENT 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 aze limited to these certified DBEs that aze owned and controlled by Afi-ican 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 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 incoordination 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) RECIl'IENT 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 ofDOT-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 B. PROMPT PAYMENT Promat 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 DBE and non-DBE subcontractors. Promat 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 fizll 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 RECIl'IENT 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 RECIl'IENT 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. RECIl'IENT 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 ProposerBidder-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. By (Signature ) David Carmany, City Manager City of Seal Beach Phone Number: (562)431-2527 This California Department of Transportation's Disadvantaged Business Enterprise Program Implementation Agreement is accepted by: [Signature of DLAE] [Print Name of DLAE] Distribution: (1) Original -DLAE (2) Signed copy by the DLAE -Local Agency (Updated: March 4, 2009) Date: March 4, 2009 March 5, 2009 Local Agency DBE Annual Submittal Form Homa Nouri, T.E. Department of Transportation, District 12 Office of Local Programs 3337 Michelson Drive Ste. CN-380 Irvine, CA 92612 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 Seal Beach, submits our AADPL information. We have established an AADPL of 17% for the Federal Fiscal Year 08/09, beginning on October 1, 2008, and ending on September 30, 2009. Methodoloay 1. FHWA ASSISTED CONTRACTING PROGRAM FOR FEDERAL FISCAL YEAR 2008-2009. The following represents the City of Seal Beach's projected FHWA funded contracts and expenditures by work category for FFY 2008-2009: Work Category Work Category Estimated Dollar % of Federal Funding Description Value b Work Category A Roadway Resurfacing and $1,000,000 100% Reconstruction 2. OVERALL PARTICIPATION AVAILABILITY METHODOLOGY. Step 1: Determination of a Base Figure (§26.45): The City of Seal Beach elected to utilize the following methodology in establishing its Base Figure of relative DBE availability for FFY 2008-2009: - For the numerator: Caltrans' DBE Directory - For the denominator: Los Angeles and Orange County census bureau's business pattern database. (highway & street construction and Blue Book Directory) The City will calculate its weighted Base Figure by first determining the number of ready, willing and able DBEs in the DBE Directory by work category, and dividing the number of DBEs by the total number of firms in the same work category. Application of this formula yields the following baseline information: Number of Ready. Willing and Able DBEs _ BASe FicuRe Number of All Ready, Willing and Able Firms Base Figure = DBEs in A Firms in A Base Figure = 14 418 Base Figure = (0.033) Base Figure = (0.033)100 = 3.3% Step 2: Adjusting the Base Figure: Upon establishing the Base Figure, the City of Seal Beach reviewed and assessed other known relevant evidence to determine what additional adjustments, if any, were needed to narrowly tailor the Base Figure to the City of Seal Beach's marketplace. Factors considered in determining the City of Seal Beach participation that can be expected, absent discrimination, including the following: A. Current Capacity of DBE's Measured By Actual Attainments The past three years, the City of Seal Beach has utilized no Federally assisted funds. B. Disparity Study Results; DBE Availability Ratios vs. Utilization Ratios: A disparity study was not completed by the City of Seal Beach. Studies performed in neighboring Cities such as Huntington Beach, Los Alamitos and Cypress have similar results. C. Resultant Goal Adjustment Based upon available information the adjusted AADPL for 2008-2009 is 3.3%. Disadvantaged Business Enterprise Liaison Officer (DBELO) Michael Ho DBE Liaison Officer (DBLEO) mho(a~ci.eseal-beach.ca.us Office (562) 431-2527 x1322 Fax (562) 430-8763 Prompt Pay The City of Seal Beach 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. Submitted by: Signature David Carmanv City Manager Reviewed by Caltrans: (Signature of Caltrans District Local Assistance Engineer [DEAF]) Date (562) 431-2527 Phone Number Date Exhibit 9-A Disadvantaged Business Enterprise Implementation Agreement for Local Agencies CALIFORNIA DEPARTMENT OF TRANSPORTATION DISADVANTAGED BUSINESS ENTERPRISE PROGRAM IMPLEMENTATION AGREEMENT FOR LOCAL AGENCIES March 4, 2009 Division of Local Assistance -Office Bulletin Race Conscious DBE Program FAQs /.-] ~ Office of Procedures Development and Training March 3, 2009 ~` • ~f Race Conscious IDBE Program Implementation Frequently Asked Questions 1. Why are we going back to a Race Conscious DBE Program? The findings from the Caltrans Availability and Disparity Study revealed that the Department should return to a Race Conscious Program to address underutilization. 2. What were the results of the Disparity Study? "Statistically significant" underutilization was found in four of the six groups presumed to be disadvantaged as defined by the Code of Federal Regulations, 49 CFR Part 26. The four groups were African American, Asian Pacific American, Native American and Women. Hispanic Male and Subcontinent Asian male groups did not show statistically significant underutilization. The Subcontinent Asian male group includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka. How will the transition back to the Race Conscious DBE Program impact federal-aid projects? • All contracts awarded after May 31, 2009, shall include race conscious DBE requirements (i.e. contract goals, good faith efforts. • Any project that receives Authorization to Proceed under the old Race Neutral (RN) DBE requirements must award the contract by May 31, 2009. • Any Authorization to Proceed received under the old RN DBE requirements that does not meet the May 31, 2009 contract award deadline shall be re-evaluated. Local agencies must resubmit their projects to Caltrans for approval to ensure compliance with the new RC DBE requirements prior to bid opening. • Contract awazded after May 31, 2009, without meeting the new RC DBE requirements will be ineligible for federal funding. • Local agencies' Requests for authorization to Proceed for projects under the old RN DBE Program will continue to be received and processed subject to the preceding conditions. • In submitting Requests for Authorization to Proceed for projects under the old RN DBE Program, the project sponsors need to be mindful of the minimum advertising period of three weeks, and the time it takes for bid opening and contract approval by their governing bodes. • Requests for authorizations to Proceed with the new RC DBE requirements maybe submitted for processing and have funds obligated/authorized before the DLAE receives the new DBE Implementation Agreements; however, projects shall not be awazded prior to the approval of the new DBE Implementation Agreement by the DLAE. • Existing federal-aid project contracts authorized after May 1, 2006, shall continue under the old RN DBE Program. 4. How do the Disparity Study results affect the local agencies' Annual Anticipated DBE Percentage Levels (AADPLs)? The Dispazity Study results require local agencies to split out their AADPLs into Race Neutral and Race Conscious portions. The Race Conscious portion of the AADPL is limited to the four underutilized groups. The Race Neutral portion of the AADPL is inclusive of all six groups. If local agencies have previously submitted their 2009 AADPLs prior to the transition back to a Race Conscious DBE Program, are they required to resubmit their AADPLs? No, local agencies are not required to resubmit their 2009 AADPLs. They are, however, required to determine the portion of the AADPLs they believe they can meet through race neutral means, and the portion of their AADPLs they can meet through using contract goals (race conscious), and set individual contract goals. To determine the Race Neutral portion of the AADPL, local agencies may use the previous yeaz's actual DBE attainment level. The remaining percentage of the AADPL may be the Race Conscious portion. Page 1 of 2 Filename: RC DBE FAQz Mar 3 prepared by: PCairoll ~'[~~ Division of Local Assistance -Office Bulletin Race Conscious DBE Program FAQs ~~'=~:~ ""'~ Office of Procedures Development and Training March 3, 2009 ~~°.~~-v: ~.. J 6. The Overall Statewide Goal is 13.5% (6.75w%Race Neutral, 6.75%Race Conscious). Can local agencies adopt this goal instead of calculating their own AADPLs? No, in order to maintain a narrowly tailored DBE Program, local agencies must calculate their AADPLs based on their respective mazket azeas, types ofwork, and total dollars. Are local agencies' proposed AADPLs subject to a 45-day public comment period and consultation with minority, women's and general contractor groups, etc.? A public comment period is not required in the development of local agencies' AADPLs. What is a UDBE? A UDBE is an underutilized Disadvantaged Business Enterprise. UDBEs fall into one of the following groups: African American, Asian Pacific American, Native American, and Women. 9. How do local agencies and contractors locate UDBEs I the California Unified Certification Program (CUCP) data base? Is there a UDBE certification? There is no specific certification for UDBEs. To facilitate locating UDBEs, the CUCP database breaks out DBEs by gender and ethnicity. 10. Do local agencies count participation by DBEs that are owned by Hispanic Males and Subcontinent Asian Males- the two groups that were found not to have statistically significant disparity in the Study? Yes, but they are not counted towards the contract goals nor the Race Conscious portion of the local agencies' AADPLs. Participation by Hispanic Males and Subcontinent Asian Males is counted towards the Race Neutral portion of the local agencies' respective AADPLs. 11. Are we reinstating the Good Faith Effort requirement in the procurement process for federal-aid contracts? Where can on find Good Faith Effort guidance? Yes. The Good Faith Effort requirement is being reinstated but is limited to UDBEs. Guidance may be found at Caltrans, Division of Local Assistance website under "Announcement" at: httL:://www.dot.ca.gov/hq/LocalPro rg ams/ 12. Are contractors on federal-aid contracts required to substitute UDBEs with UDBEs or make a good a faith effort to do so? Yes, contractors on federal-aid contracts aze required to notify the local agency and document good faith efforts to replace the UDBE with another UDBE. 13. Are the United States Forest Service (USFS) and the National Park Service (NPS) exempt from DBE requirements? Yes, the Federal Government has its own contracting regulations, the Federal Acquisition Regulations (FAR) that both USFS and NPS must follow. The FAR contains the requirements of the 8a Program Page 2 of 2 Filename: RC DSE FAQz Mar 3 Prepared by: PCarroll