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Home My WebLink AboutAGENDA REPORT 2009 0520 CC REG ITEM 10I rFEMI� ................. CITY OFMOORPARK,CqL;FX--.;, City Council Meeting of ACTION:_f' -- A BY: MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Yugal K. Lail, City Engineer/Public Works Director Prepared by: Dave Klotzle, Assistant City Engine DATE: May 8, 2009 (CC Meeting of 05/20/09) SUBJECT: Consider California Department of Transportation Disadvantaged Business Enterprise Implementation Agreement BACKGROUND As an eligible recipient of federal-aid highway funds, the City is required to comply with Title 49 of the Code of Federal Regulations, Part 26, which states that grantees must adopt and implement a Disadvantaged Business Enterprise (DBE) Program and annually determine DBE participation goals. This program was implemented by the Federal Highway Administration (FHWA) to ensure non-discrimination in the award and administration of contracts receiving federal aid. California Department of Transportation (Caltrans) administers the DBE program and requires the City to enter into an agreement with Caltrans to implement the DBE program requirements for City projects receiving federal-aid funds. DISCUSSION For years, Caltrans, via counties and cities, implemented a DBE program in accordance with FHWA requirements and included race-conscious components in the program. Under this program, the City was required to set an annual goal for a certain percentage participation by DBE companies on contracts funded with federal-aid highway funds. Title 49 of the Code of Federal Regulations, Part 26 identifies a DBE as a company who is controlled by an individual who is socially and economically disadvantaged according to race or gender as listed in the regulations. In May 2005, the Ninth Circuit Court of Appeals issued a decision requiring all states S:\Publicworks\Everyone\Reports\staff ReportsM09\May\DBE Implementation Agreement.doc f�0 1)�� Honorable City Council May 20, 2009 Page 2 within its jurisdiction, including California, to comply with new evidentiary standards necessary to constitutionally support the use of race-conscious DBE goals. Upon review of its DBE program, Caltrans determined that it was unable to continue with any level of race-conscious DBE program, and that DBE participation would be achieved solely by race-neutral measures. In May 2006, Caltrans implemented a race-neutral DBE program and on May 15, 2007, Caltrans approved the City's current race-neutral DBE Implementation Agreement. The race-neutral program does not include specific percentage participation goals for DBEs, but rather includes measures to assist DBEs in obtaining contracts such as distribution of notices inviting bids to as many DBEs as possible. Caltrans has since conducted an Availability and Disparity Study to verify if their DBE goals could be met by race-neutral means. The study determined that there is "statistically significant" under-utilization 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. Hispanic Male and Subcontinent Asian male groups did not show statistically significant under-utilization. The findings of the study revealed that Caltrans should return to a race- conscious DBE program to address this under-utilization. Caltrans has notified the City of the requirement to adopt and execute the new Race Conscious DBE Implementation Agreement (Attachment 1) by June 2, 2009 in order to remain eligible for federal-aid funding. The new program includes both race-conscious percentage participation goal requirements for the four groups of under-utilized DBEs (UDBE) and race-neutral provisions for the remaining groups of DBEs. In addition to executing the agreement, the City is required to submit an annual form to Caltrans for each federal fiscal year (Oct.1 — Sept. 30) stating the race-conscious percentage participation goal and race-neutral measures that will be included in the contract provisions for projects using federal-aid highway funds. The City currently has two capital road projects programmed to use federal-aid highway funds for construction. The Los Angeles Avenue Widening Project between Spring Road and Moorpark Avenue has $796,770 in federal-aid funds programmed for construction; and the Mountain Trail Street Pavement Rehabilitation Project has $618,566 of the recent federal stimulus funds programmed for construction. The requirements of the new Race Conscious DBE Implementation Agreement and annual contract goals need to be met by these projects for the City to receive the federal-aid funds. FISCAL IMPACT There is no fiscal impact to enter into the Race Conscious DBE Implementation Agreement with Caltrans. However, if the Agreement is not executed and submitted to Caltrans by June 2, 2009, the City will not be eligible to receive federal stimulus and other SAPublic Works\Everyone\Reports\Staff Reports\2oo9\May\DBE Implementation Agreement.doc 4)0 3 Honorable City Council May 20, 2009 Page 3 federal-aid funds for transportation projects. STAFF RECOMMENDATION Approve and authorize the City Manager to sign the California Department of Transportation Disadvantaged Business Enterprise Implementation Agreement. Attachment: California Department of Transportation Disadvantaged Business Enterprise Implementation Agreement SAPublic Works\Everyone\Reports\Staff Repo rts\2009WIay\DBE Implementation Agreement.doc 0 0"Z, 4 Attachment 1 I ty • CITY ENGINEER/PUBLIC WORKS DEPARTMENT 789 Moorpark Avenue,Moorpark,California 88021 (805)517-6256 fax(805)5322555 CALIFORNIA DEPARTMENT OF TRANSPORTATION DISADVANTAGED BUSINESS ENTERPRISE IMPLEMENTATION AGREEMENT For the City of Moorpark,California,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 026.7) 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. JANICE S. PARVIN MARK.VAN DAM ROSEANN MIKOS KEITH F. MILLHOUSE Mayor Mayor.Pro Tom Councilmember Councilmember 0 0 0 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 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. � '� Ole� 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 a staff of 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 1 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. 0022' � 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."] 000200."d" S 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 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. 00 2 9 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 FIFA-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. l,.$ '0 v V 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) Steven Kueny, City Manager Phone Number: (805)517-6200 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 . �2;1L Attachment 1 City of Moorpark DBE Liaison Officer Dave Klotzle Assistant City Engineer 799 Moorpark Avenue Moorpark, CA 93021 dklotzle(m'ci.moorpark.ca.us Organizational Chart City of Moorpark Public Works Department Public Works Director Administrative Assistant Assistant City Senior Management Engineer Analyst DBELO Assistant Clerical Engineer Aide DBE Support DBE Support 000232