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HomeMy WebLinkAbout16-Development Services CITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION Date: July 23, 2001 C~''''''''L ., i........ Ii. Subject: Resolution of the City of San Bernardino approving the DBE Goals for FFY 2001/2002 and the DBE Liaison Officer for the Disadvantaged Business Enterprise (DBE) program. From: James Funk, Director Dept: Development Services File No. DBE MCC Date: 8/20/01 Synopsis of Previous Council Action: 4/16/01 Council approved the establishment of a Disadvantaged Business Enterprise (DBE) Program and DBE Goal for FFY 2000/2001 for Federal (DOT) financially assisted projects funded through CALTRANS. Recommended Motion: Adopt Resolution ~,~ Contact person: Raymond A, Casey, City Engineer Phone: '\111 Supporting data attached: Staff Report, Resolution, DBE Program Ward: All FUNDING REQUIREMENTS: Amount. N I A Source: (Acct. No,) N/A Acct. Description: N/ A Finance: Council Notes: 'V~ 0# 2()G \ - d.St" Agenda Item No. I to g /J..() /01 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution of the City of San Bernardino approving DBE goals for Federal financial assistance projects for the FFY 2001/2002 and approving a new DBE Liaison Officer to implement and monitor the Disadvantaged Business Enterprise (DBE) program, Background: As a condition of Federal financial assistance pursuant to recently revised regulations set for forth under Title 49 CFR, Part 26; Participation by Disadvantaged Business Enterprise in Department of Transportation Programs, the City of San Bernardino is required to develop and submit a Disadvantaged Business Enterprise Program and Overall Annual Goal for DBE participation on D, S. Department of Transportation assisted contracts. In accordance with these regulations, the City developed, and CALTRANS reviewed and approved, a DBE Program and an Overall Annual DBE Goal for Federal Fiscal Year (FFY) 2000/2001. In order to ensure full compliance with relevant regulatory requirements, the Annual DBE Goal must be updated each year and submitted to CALTRANS, The City must also appoint a DBE Liaison Officer who is responsible for implementing and monitoring the DBE Program, The prior DBE Liaison, Mr. T. Jarb Thaipejr, is no longer employed by the City of San Bernardino, The City's DBE Program established Overall Annual DBE Goal is 13 percent of the Federal financial assistance in FHWA-assisted contracts for the Federal Fiscal Year 200112002, This goal was developed utilizing the Federal goal-setting methodology that is described in detail in the attached "EXHIBIT 1". Briefly, the baseline goal above was obtained by identifying the types of work categories involved in the federally-assisted projects for this fiscal year and dividing the number of established DBE firms within San Bernardino County by the number of all established firms within San Bernardino County in these identified work categories, Data for this process was obtained from current official state and federal sources, This process will be repeated annually to maintain relevancy to local market conditions and factors impacting DBE availability, Ronald C. Blymiller, Associate Engineer with the Public Works Division of the Development Services Department has been appointed to implement and monitor the DBE Program. This is the only change in the DBE Program (attached as "EXHIBIT 2"), that was approved by Resolution No, 2001-69, Financial Impact: There is no financial impact to the City. Recommendation: Adopt Resolution, .- i,-, r- ,-. 25 III 26 ~ 27 III '- 28 l~(Q)~V 1 2 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 3 BERNARDINO APPROVING THE DBE GOALS FOR FEDERAL FINANCIAL 4 ASSISTANCE PROJECTS FOR THE FISCAL YEAR 2001/2002, AND APPROVING A NEW DBE LIAISON OFFICER FOR THE ESTABLISHED DISADVANTAGED 5 BUSINESS ENTERPRISE (DBE) PROGRAM. 6 7 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: WHEREAS, 49 CFR Part 23 heretofore requires a Disadvantaged Business Enterprises (DBE) Program for recipients of Department of Transportation funds; and 9 10 11 12 13 WHEREAS, the Federal Register states that all sub-recipients of Department of Transportation funds must provide an annual proposed overall goal and goal setting methodology in compliance with its own DBE Program; and WHEREAS, the DBE Program requires a DBE Liaison Officer who is responsible for implementing and monitoring the DBE Program; and 14 WHEREAS, the City of San Bernardino intends to be a sub-recipient of Department of Transportation funds; 15 16 17 18 19 20 21 22 23 24 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: L The following DBE goals are established for the period of October I, 2001 to September 30, 2002: Disadvantaged Business Enterprises Goal of 13,0 % , Proposed Regional Baseline DBE Goal Methodology for FFY 200l/2002 is attached hereto as Exhibit 1 and incorporated in this resolution; and 2, The City of San Bernardino hereby approves the new DBE Liaison Officer for implementing and monitoring the DBE Program, which is attached hereto as Exhibit 2 and incorporated in this resolution: Ronald Co Blymiller, Associate Engineer, Public Works Division, Development Services Department is the new appointed DBE Liaison Officer (DBELO). I 1l0. I~ r /UJ/o/ ,- 1 RESOLUTION...APPROVING THE DBE GOALS FOR FEDERAL FINANCIAL '- 2 ASSISTANCE PROJECTS FOR THE FISCAL YEAR 200112002, AND APPROVING A NEW DBE LIAISON OFFICER FOR THE ESTABLISHED DISADVANTAGED 3 BUSINESS ENTERPRISE (DBE) PROGRAM. - '- -- ~ 4 5 6 7 the _ day of I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on , 2001, by the following vote, to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 ESTRADA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LIEN MC GINNIS SCHNETZ SUAREZ ANDERSON MC CAMMACK City Clerk The foregoing resolution is hereby approved this day of , 2001. Judith Valles, Mayor City of San Bernardino Approved as to Form and legal content: JAMES F. PENMAN, 26 City Anorney 27 BY:~A 1, p.~- 28 () 2 \\ EXHIBIT 1 " ,~.~ CITY OF SAN BERNARDINO )L Proposed Regional Baseline DBE Goal Methodology for FFY 2001/2002 Submitted in fulfillment of: Section 1101 of the Transportation Equity Act for the 21st Century Title 49 Code of Federal Regulations, Part 26 and Caltrans Local Assistance Procedures Manual "'..,-- ,~ City of San Bernardino DB E PROGRAM I APPENDIX D I '-' CITY OF SAN BERNARDINO BASELINE DISADVANTAGED BUSINESS ENTERPRISE (DBE) GOAL METHODOLOGY FOR FEDERAL FISCAL YEAR (FFY) 200112002 (October 1,2001 to September 30,2002) INTRODUCTION: An Overall Annual Goal was established for DBE participation in City of San Bernardino's FY 2001/2002 DOT-assisted contracts in compliance witb recently revised federal regulations set forth in Title 49 CFR, Part 26, Participation by Disadvantaged Business Enterprises in u.s, Department of Transportation (DOT) Programs and in Caltrans' Local Assistance Procedures Manual. The recommended Overall Annual DBE Goal for contracts assisted by DOT is ll%, This goal identifies the relative availability ofDBEs based on evidence of ready, willing ""' and able DBEs in relationship to all comparable businesses which are known to be available to "-' compete for tbe City of San Bernardino's DOT -assisted contracts, The following describes tbe methodology undertaken to establish the recommended goal and tbe race-neutral and race- conscious measures, which would be applied to achieve tbe overall goal. I. DOT ASSISTED CONTRACTING PROGRAM FOR FFY 2001/02 Table 1 below presents tbe anticipated areas of contracting, by project type for which the City of San Bernardino (City) intends to disburse Department of Transportation (DOT) assisted funds for transportation-related projects in FFY 2001/02, as follows: Table 1 Street Construction Street Rehabilitation Si alization Brid e Seismic Retrofit - '-' S'lPuhlicWorksIDBE/DBE Goal OI-02-Aooendix D City of San Bernardino DB E PROGRAM ....-. I APPENDIX D I '...... Tabte 2 below represents a summary of corresponding subspecialty work areas grouped under two primary categories; Construction and Professional Services. The Caltrans DBE Directory Work Category Codes (WWC) and Descriptions and comparable 1997 and 1998 Census Business Patterns database, North American Industry Classification System (NAICS) work category codes utilized are also presented, as follows: Table 2 PRIMARY WORK CAL TRANS NAICS CATEGORY WORK CATEO,ORY;,< CATEGORY. DESCRIPTION CODES <- " .' CONSTRUCTION: C1601, C1910, C2000, C2201, Highway & Street C3910, C3901, C5620, C7112, 23411 Construction C7191, C8406, C8501, C8602, C1901, C511O, C5135, C7301 PROFESSIONAL SERVICES: Engineering Services I C8703, C8720, C8760, C8770 I 54133 "'- , "- II. GOAL-METHODOLOGY Step I: Determination of a Base Figure (26.45) To determine a Base Figure of relative availability ofDBEs, the City embraced a methodology which included a review of the ratio of all available (ready, willing and able) established DBE firms in relation to all available established firms within the City's market area. This was accomplished by utilizing the Caltrans on-line Bulletin Board System (BBS) DBE Directory of Certified Firms within the two primary work categories as its numerator and the 1997 and 1998 U.s, Census Bureau County Business Patterns (CBP) Database of all comparable established firms as its denominator, The City made a concerted effort to ensure that the scope of businesses included in the numerator was as close as possible to the scope included in the denominator, To derive the relative availability of DBEs for each major work category, the City divided the numerator' by the denominator2, which yielded a Base Figure, utilizing the following formula: Number of Ready, Willing and Able DBE Firms = BASE FIGURE Number of All Available Firms .~ \- 1 Numerator represents all available established DBE finns within the San Bernardino County, I Denominator represents all available established finns within the San Bernardino County. S'J1>uhlicWorks/DBE/DBE Goal OI-02-Aooendix D i~ \- r- '-' i'.- --- City of San Bernardino DB E PROGRAM I APPENDIX D Table 3 below presents the results of the application of this formula within each major category, and the basis for calculating the resultant Base Figure of the relative availability of DBEs. Table 3 Base Figure = (DBEsinC1601 CI91O*)+ CBPs in NAICS 23411** Base Figure = [LQID + llZ} ] 770 300 Base Figure = G779 + ,0567 ] IDBEs in C8703 C8720*) CBPs in NArCS 23571** Base Figure = (,1346) 100 = 13.46 = 13%*** * For detailed listing of all Caltrans Work Categories grouped in each major category, refer to City's Regional DBE Goal Analysisfor FFY 2001/2002, Attachment L .. For detailed listing of all NAICs and SIC Work Codes grouped in each major category, refer to City's Regional DBE Goal Analysis for FFY 2001/2002, Attachment IL ..* Rounded to the nearest whole number, Step II: Adjustment o/the Base Figure The Base Figure of 13% was not further adjusted, as each respective member agency within City's jurisdiction will perform this task to ensure narrow tailoring, in conformance with Title 49 CFR, Part 26 prescribed goal setting methodology, Therefore, the resultant Base Figure remains 13%, III. OVERALL ANNUAL GOAL AND PROJECTION OF RACE-NEUTRAL AND RACE-CONCIUS PARTICIPATION The Overall Annual ( FFY 2001/2002) DBE Goal for the City of San Bernardino's DOT -assisted contracts is 13.%.. The Overall Goal is expressed as a percentage of all DOT-assisted funds that the City of San Bernardino will expend in FHW A-assisted contracts in the forthcoming fiscal year, This goal further serves to identify the relative availability of DBEs based on evidence of ready, willing, and able DBEs compared to all firms known to be available to compete for and S:/PublicWorks/DBE/DBE Goal OI-02-Appendix D City of San Bernardino DB E PROGRAM ,tJI""'" I APPENDIX D I "'- perform on the City of San Bernardino's DOT-assisted contracts, The Overall Annual Goal reflects a determination of the level ofDBE participation, which would be expected absent the effects of discrimination. The City of San Bernardino projects to meet lli of the goal utilizing race-neutral methods, including making efforts to assure that bidding and contract requirements facilitate participation by DBEs and other small businesses in conformance with new regulatory requirements. The City of San Bernardino projects to meet the remaining 1!l%. of the goal utilizing race-conscious measures, including utilizing contract-specific numeric goals, as necessary, to achieve the overall goat. IV. PUBLIC PARTICIPATION AND FACILITATION In conformance with Public Participation Regulatory Requirements of Title 49 CFR, Part 26 and Caltrans Local Assistance Procedures Manual (LAPM), this goal analysis will be offered for review by minority, women, local business chambers, and community organizations within the City of San Bernardino's geographic market area. - '-' Additionally, the City of San Bernardino will publish a Public Notice in general circulation media announcing the City's overall Annual Goal for the FFY 2001/2002 DOT-assisted contracts. Such notice will inform the public that the proposed goal and its rationale is available for inspection at the City of San Bernardino's Public Works Division, on the 3rd floor of City Hall during normal business hours for 30 days following the date of the Public Notice and that the City of San Bernardino will accept comments on the goal analysis for 45 days from the date of the Public Notice, The required public participation provisions will be fully satisfied prior to submitting the City of San Bernardino's DBE Program and Overall Annual DBE Goal to Caltrans for final review and approval. -- "'- S:lPublicWorksIDBEIDBE Goal OI-02-Appendix D f~ '- City of San Bernardino DB E PROGRAM I APPENDIX D I CITY OF SAN BERNARDINO DBE GOAL ANALYSIS FOR FFY 2001/2002 IESTABLISHMENTOFTHENUME~tQi: .1 # OF ESTABLISHED DBE FIRMS IN SAN BERNARDINO COUNTY1 AlTACHMENT I S.B. COUNTY ZIP CODES CONSTRUCTION: NAICS CODE: 23411 Highway & Street Construction CI601 Clearing & Grubbing CI910 Grading C2000 Highway Planting C2201 Finishing Roadway C3910 Paving Asphalt 917 922 923 924 935 TOTAL 4 4 12 3 3 26 C390 I Asphalt Concrete C5620 Roadside Sign r C7112 Reinforce Concrete Sewer Pipe \,... C7191 Sewer Manhole C8406 Painted Traffic Stripe & Marking 3 o 3 3 10 C850 I Pavement Marking C8602 Signal & Lighting CI901 Roadway Excavation HIGHWAY & STREET CONSTRUCTION NArCS CODE: 23571 Concrete Contractors C5110 Concrete Surface Finish C5135 Concrete Block & Masonry Retaining Wall C7301 Concrete Curb & Sidewalk CONCRETE CONTRACTORS PROFESSIONAL SERVICES NAICS CODE: 54133 Engineering Services C8703 Traffic Engineer NAICS CODE 54136 Geophysical Surveying & Mapping C8760 Surveyor SIC CODE 8741 Management Services C8770 Construction Management r ENGINEERING SERVICES, ~ GEOPHYSICAL SURVEYING;AND MAPPING AND MANAGEMENT SERviCES 3 I 6 2 o 12 48 5 2 5 o o 12 12 2 o I o 4 3 o I 2 o 6 3 2 I I o 7 17 I DATA SOURCE: Caltrans Bulletin Board System List ofDBE Certified Firms (;::./D"hl;~ur....rlrC'rnRHrnRH n""!lll 01_0'_Att!lll'hrTIpnt T City of San Bernardino DB E PROGRAM I APPENDIX D I ,,- '- CITY OF SAN BERNARDINO DBE GOAL ANALYSIS FOR FFY 2001/2002 I ESTABLISHMENT OF THE DENOMINATOt{: I ATTACHMENT II # OF ESTABLISHED DBE FIRMS IN SAN BERNARDINO COUNTY1 CONSTRUCTION: NAICS AND SIC CODE NAICS/SIC DESCRIPTION 23411 23412 23499 23521 23593 23599 32412 HIGHWAY 8r. STREET CONSTRUCTION BRIDGE 8r. TUNNEL CONSTRUCTION ALL OTHER HEAVY CONSTRUCTION PAINTING 8r. WALL COVERING CONTACTORS EXCAVATION CONTRACTORS ALL OTHERSPEClALTRADE CONTRACTORS ASPHALT PAVING, ROOFING 8r. SATURATED MATERIAL MANUFACTURING HIGHWAY 8r. STREET CONSTRUCTION FERROUS METAL FOUNDRIES CONCRETE CONTRACTORS MASONRY 8r. STONE CONTRACTORS TOTAL ESTABUSHED FIRMS 51 6 79 148 54 156 r '- 1610 33151 23571 23541 11 59 4 136 66 770 PROFESSIONAL SERVICES: NAICS AND SIC CODE NAICS/SIC DESRIPTION: 54133 ENGINEERING SERVICES 185 54136 GEOPHYSICAL SURVEYING 8r. MAPPING SERVICES 3 8741 MANAGEMENT SERVICES 112 TOTAL NUMBER OF FIRMS 300 - '- 1 DATA SOURCE: U,S, Census Bureau: County Business Patterns. NAICS and SIC Work S:/PublicWorksIDBEIDBE Goal OI-02-Attachment II \\ ExHIBIT 2./1 CITY OF SAN BERNARDINO DISADV ANTAGED BUSINESS ENTERPRISE PROGRAM AUGUST 20, 2001 Submitted in fulfillment of: Section 1101 of the Transportation Equity Act for the 21st Century Title 49 Code of Federal Regulations, Part 26 and Caltrans Local Assistance Procedures Manual c I II III IV V VI VII VIII IX X XI I"""" XII '- XIII XIV XV XVI XVII XVIII XIX XX CITY OF SAN BERNARDINO DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM TABLE OF CONTENTS Definition of Terms ........................................................................................... 1 Objectives/Policy Statement ............................................................................ 1 N ondiscrimination............................................................................................ 2 DBE Program Updates ....................................................................................2 Quotas ............................................................................................................... 2 DBE Liaison Officer ........................................................................................3 Federal Financial Assistance Agreement Assurance................................... 3 DBE Financial Institutions ............................................................................ 4 Directory ......................................................................................................... 4 Overconcentration .......................................................................................... 4 Business Development Programs .................................................................. 5 Required Contract Clauses ............................................................................ 5 Monitoring and Enforcement Mechanisms ................................................. 6 Overall Goals .................................................................................................. 9 Contract Goals ............................................................................................. 11 Transit Vehicle Manufacturers .................................................................. 11 Good Faith Efforts ...................................................................................... 12 Counting DBE Participation .....................................................................14 Certification ................................................................................................ 14 Information Collection and Reporting..................................................... 14 Attachment to DBE Program: To Be Used For Design-Build Contracts Appendix A: (Appendix A to Part 26) Guidance Concerning Good Faith Efforts Appendix B: DBE Program Organizational Chart Appendix C: Bidders List and Prompt Payment Certification Form Appendix D: Overall Annual DBE Goal Analysis for FFY 2000/01 Appendix E: Necessity or Emergency For Subsequent Subcontractor Selection ~ ......... r This Program is in accordance with Title 49 of the Code of Federal Regulations Part 26 '- DISADV ANT AGED BUSINESS ENTERPRISE PROGRAM FOR THE CITY OF SAN BERNARDINO I Definitions of Terms The terms used in this program have the meanings defined in Title 49 CFR ~26.5. II Objectives /Policy Statement (~~26.l, 26.23) ,.... '- The City of San Bernardino has established a Disadvantaged Business Enterprise (DBE) program in accordance with regulations of the U.S. Department of Transportation (DOT), Title 49 CFR, Part 26, The City of San Bernardino has received Federal financial assistance from the DOT, and as a condition of receiving this assistance, the City of San Bernardino will sign an assurance that it will comply with Title 49 CFR, Part 26, (For Design-Build Contracts see also Attachment to this document) It is the policy of the City of San Bernardino to ensure that DBEs, as defined in Part 26, have an equal opportunity to receive and participate in DOT -assisted contracts, It is also our policy: . To ensure nondiscrimination in the award and administration of DOT-assisted contracts . To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts . To ensure that the DBE Program is narrowly tailored in accordance with applicable law . To ensure that only firms that fully meet Title 49 CFR, Part 26 eligibility standards are permitted to participate as DBEs . To help remove barriers to the participation ofDBEs in DOT-assisted contracts . To assist the development of firms that can compete successfully in the market place outside the DBE Program, - ...... 1 r- Ronald Co Blymiller*, Associate Engineer with the Public Works Division, has been delegated as \",... the DBE Liaison Officer. In that capacity, Mr, Blymiller is responsible for implementing all aspects of the DBE program, Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the City of San Bernardino in its financial assistance agreements with the California Department of Transportation (Caltrans), The City of San Bernardino has disseminated this policy statement to the Mayor and Common Council and all the components of our organization, We have distributed this statement to DBE and non-DBE business communities that perform work for us on DOT-assisted contracts by publishing this statement in general circulation, minority-focused and trade association publications, III Nondiscrimination (926,7) The City of San Bernardino will not 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 Title 49 CFR, Part 26 on the basis of race, color, sex, or national origin. - "- In administering its DBE program, the City of San Bernardino will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program with respect to individuals of a particular race, color, sex, or national origin, IV DBE Program Updates (926.21) The City of San Bernardino will continue to carry out this program until the City of San Bernardino has established a new goal setting methodology or until significant changes to this DBE Program are adopted. The City of San Bernardino will provide to Caltrans a proposed overall goal and goal setting methodology and other program updates by June I of every year. V Quotas (926.43) The City of San Bernardino will not use quotas or set-asides in any way in the administration of this DBE program, - '- *New DBE Liaison Officer - 6/15/01 2 - """'" VI DBE Liaison Officer (DBELO) (g26.45) The City of San Bernardino has designated the following individual as the DBE Liaison Officer: Mr, Ronald C. Blymiller, Associate Engineer* Division of Public Works, Department of Development Services 300 North "D" Street, San Bernardino, CA 92418 Phone: (909) 384-5154, E-mail: blymillerJo@cLsan-bernardino.ca.us In that capacity, Mr. Blymiller is responsible for implementing all aspects of the DBE program and ensuring that the City of San Bernardino complies with all provisions of Title 49 CFR, Part 26, "Participation by Disadvantaged Business Enterprise Regulations in Department of Transportation Financial Assistance Programs ". This is available on the Internet at osdbuweb.dot.gov/main.cfm, Mr, Blymiller has direct, independent access to the Mayor and Common Council concerning DBE program matters, An organization chart displaying the DBE Liaison Officer's position in the organization is found in "Appendix B" to this program, The DBE Liaison Officer is responsible for developing, implementing and monitoring the DBE program, in coordination with other appropriate officials, Duties and responsibilities include the following: I, Gathers and reports statistical data and other infonnation as required, ,_ 2, Reviews third party contracts and purchase requisitions for compliance with this program, \,.... 3, Works with all departments to set overall annual goals for DBE participation in DOT- assisted contracts, 4, Ensures that bid notices and requests for proposals are available to DBEs in a timely manner, 5, Identifies contracts and procurements so that DBE goals are included in solicitations when warranted (both race-neutral methods and contract specific goals) and monitors results, 6, Analyzes the City of San Bernardino's progress toward goal attainment and identifies ways to improve progress, 7, Participates in pre-bid meetings, 8, Advises the CEO/governing body on DBE matters and achievement. 9, Chairs the DBE Advisory Committee, 10, Participates with the legal counsel and project director to detennine contractor compliance with good faith efforts, II, Provides DBEs with infonnation and assistance in preparing bids, obtaining bonding and insurance, 12, Plans and participates in DBE training seminars, 13, Provides outreach to DBEs and community organizations to advise them of opportunities. VII Federal Financial Assistance Agreement Assurance (g26,13) The City of San Bernardino will sign the following assurance, applicable to all FHW A-assisted - contracts and their administration as part of the program supplement agreement for each project: '-' *New DBE Liaison Officer - 6/15/01 3 ,..... 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 Title 49 CFR, part 26, The recipient shall take all necessary and reasonable steps under Title 49 CFR, Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts, The recipient's DBE Program, as required by Title 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 Vpon 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 V,S,C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 V.S.C. 3801 et seq,), [Note - this language is to be used verbatim, as it is stated in S26,13(a), However, approval authority of the recipient's DEE Program has been delegated to Caltrans for FHWA-assisted contracts} VIII DBE Financial Institutions It is the policy of the City of San Bernardino to investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to use these institutions, and to ,..... encourage prime contractors on DOT-assisted contracts to make use of these institutions. \"... Information on the availability of such institutions can be obtained from the DBE Liaison Officer. The Caltrans Disadvantaged Business Enterprise Program may offer assistance to the DBE Liaison Officer. IX DBE Directory (g2631) The City of San Bernardino will refer interested persons to the DBE directory available from the Caltrans Disadvantaged Business Enterprise Program website at www.dot.ca.gov/hqlbep. X Over-concentration (g26.33) The City of San Bernardino has not identified any types of work in DOT -assisted contracts that have an over-concentration of DBE participation, If in the future, the City of San Bernardino identifies the need to address over-concentration, measures for addressing over-concentration will be submitted to the DLAE for approval. - \""... 4 r- '- XI Business Development Programs (926.35) The City of San Bernardino does not have a business development or mentor-protege program. If the City of San Bernardino identifies the need for such a program in the future, the rationale for adopting such a program and a comprehensive description of it will be submitted to the DLAE for approval. XII Required Contract Clauses (9926.13,26,29) Contract Assurance The City of San Bernardino ensures that the following clause is placed in every DOT-assisted contract and subcontract: The contractor or subcontractor shall not discriminate on the basis of race. color, national origin, or sex in the performance of this contract, The contractor shall carry out applicable requirements of TITLE 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, r' Prompt Payment ""'" The City of San Bernardino ensures that the following clauses or equivalent will be included in each DOT-assisted prime contract: Sati~factory Peiformance The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory peiformance of its contract no later than 10 days from the receipt of each payment the prime contractor receives from the City of San Bernardino, Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City of San Bernardino. This clause applies to both DBE and non-DBE subcontractors Release Q/ Retainage The prime contractor agrees fUrther to release retainage payments to each subcontractor within 30 days after the subcontractor's work is satisfactorily completed, Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City of San Bernardino, This clause applies to both DBE and non-DBE subcontractors, -......... '- Ongoin'l ComDliance Monitorinrr 5 - ~. It is the responsibility of the prime contractor to provide evidence of all subcontractor payments in accordance with the above stated Prompt Payment Provisions, Verification of payments made to subcontractors shall accompany each prime contractor's request for payment, As an alternative, the prime contractor can complete the City of San Bernardino Form: "Prompt Payment Certification" and submit with each request for payment. Failure to comply with the above stated provisions may result in a delay in processing the prime contractor's request for payment or be subject to other remedies as the City of San Bernardino deems appropriate, XIII Monitoring and Enforcement Mechanisms (~26.37) The City of San Bernardino will assign a Resident Engineer (RE) or Contract Manager to monitor and track actual DBE participation through contractor and subcontractor reports of payments in accordance with the following: After Contract Award After the contract award, the City of San Bernardino will review the award documents for the portion of items each DBE and first tier subcontractor will be performing and the dollar value of that work. With these documents the RE/Contract Manager will be able to determine the work to be performed by the DBEs or subcontractors listed, t"""'" '~ ( For Design-Build Contracts see also Attachment to this document) Preconstruction Conference A preconstruction conference will be scheduled between the RE and the prime contractor or their representative to discuss the work each DBE subcontractor will perform, (For Design-Build Contracts see also Attachment to this document) Before work can begin on a subcontract, the City of San Bernardino will require the contractor to submit a completed "Subcontracting Request", Exhibit 16-B of the Caltrans Local Assistance Program Manual (LAPM) or equivalent When the RE receives the completed form, it will be checked for agreement of the first tier subcontractors and DBEs. The RE will not approve the request when it identifies someone other than the DBE or first tier subcontractor listed in the previously completed "Local Agency Bidder DBE Information," Exhibit 15-G of the Caltrans LAPM, The "Subcontracting Request" will not be approved until all discrepancies are resolved, If an issue cannot be resolved at that time, or there is some other concern, the RE will require the contractor to eliminate the subcontractor in question before signing the subcontracting request A change in the DBE or first tier subcontractor may be addressed during a substitution process at a later date, Suppliers, vendors, or manufacturers listed on the "Local Agency Bidder DBE Information" will .r" be compared to those listed in the completed Exhibit 16-1 of the Caltrans LAPM or equivalent \",.. Differences must be resolved by either making corrections or requesting a substitution, 6 ,,,..... Substitutions will be subject to the Subletting and Subcontracting Fair Practices Act (FPA), The I",.,.... City of San Bernardino will require contractors to adhere to the provisions within Subletting and Subcontracting Fair Practices Act (State Law) Sections 4100-4144, FP A requires the contractor to list all subcontractors in excess of one half of one percent (0.5%) of the contractor's total bid or $10,000, whichever is greater. The statute is designed to prevent bid shopping by contractors. The FP A explains that a contractor may not substitute a subcontractor listed in the original bid except with the approval of the awarding authority, The RE will give the contractor a blank Exhibit l7-F, "Final Report Utilization of Disadvantaged Business Enterprises, First Tier Subcontractors" from the Caltrans LAPM and will explain to them that the document will be required at the end of the project, for which payment can be withheld, in conformance with the contract. Construction Contract Monitorine The RE will ensure that the RE's staff (inspectors) know what items of work each DBE is responsible for performing, Inspectors will notify the RE immediately of apparent violations, When a firm other than the listed DBE subcontractor is found performing the work, the RE will notify the contractor of the apparent discrepancy and potential loss of payment. Based on the contractor's response, the RE will take appropriate action: The DBE Liaison Officer will perform a preliminary investigation to identify any potential issues related to the DBE ,_ subcontractor performing a commercially useful function, Any substantive issues will be '-- forwarded to the Caltrans Disadvantaged Business Enterprise Program, If the contractor fails to adequately explain why there is a discrepancy, payment for the work will be withheld and a letter will be sent to the contractor referencing the applicable specification violation and the required withholding of payment. If the contract requires the submittal of a monthly trucking document, the contractor will be required to submit documentation to the RE showing the owner's name, the California Highway Patrol CA number, and the DBE certification number of the owner of the truck for each truck used during that month for which DBE participation will be claimed. The trucks will be listed by California Highway Patrol CA number in the daily diary or on a separate piece of paper for documentation. The numbers are checked by inspectors regularly to confirm compliance. Providing evidence ofDBE payment is the responsibility of the contractor, (For Design-Build Contracts see also Attachment to this document) Substitution ,-. When a DBE substitution is requested, the RE/Contract Manager will request a letter from the \,.... contractor explaining why substitution is needed, The RE/Contract Manager must review the letter to be sure names and addresses are shown, dollar values are included, and reason for the request is explained, If the RE/Contract Manager agrees to the substitution, the RE/Contract 7 <'_ Manager will notify, in writing, the DBE subcontractor regarding the proposed substitution and '-' procedure for written objection from the DBE subcontractor in accordance with the Subletting and Subcontracting Fair Practices Act If the contractor is not meeting the contract goal with this substitution, the contractor must provide the required good faith effort to the RE/Contract Manager for local agency consideration, If there is any doubt in the RE/Contract Manager's mind regarding the requested substitution, the RE/Contract Manager may contact the DLAE for assistance and direction, Record Keeping and Final Report Utilization of Disadvantaged Business Enterprises The contractor shall maintain records showing the name and address of each first-tier subcontractor, The records shall also show: L The name and business address, regardless of tier, of every DBE subcontractor, DBE vendor of materials and DBE trucking company, 2, The date of payment and the total dollar figure paid to each of the firms, 3, The DBE prime contractor shall also show the date of work performed by their own forces along with the corresponding dollar value of the work claimed toward DBE goals, When a contract has been completed, the contractor will provide a summary of the records stated ~ above, The DBE utilization information will be documented on Exhibit 17-F of Caltrans LAPM <'-' and will be submitted to the DLAE attached to the Report of Expenditures. The RE will compare the completed Exhibit 17-F to the contractor's completed Exhibit 15-0 and, if applicable, to the completed Exhibit 16-B ofCaltrans LAPM, The DBEs shown on the completed Exhibit 17-F should be the same as those originally listed unless an authorized substitution was allowed, or the contractor used more DBEs and they were added. The dollar amount should reflect any changes made in planned work done by the DBE. The contractor will be required to explain in writing why the names of the subcontractors, the work items or dollar figures are different from what was originally shown on the completed Exhibit 15-0 when: . There have been no changes made by the RE. . The contractor has not provided a sufficient explanation in the comment section of the completed Exhibit 17-F, The explanation wi\l be attached to the completed Exhibit 17-F for submittal. The RE wi\l file this in the project records, The City of San Bernardino's DBE Liaison Officer wi\l keep track of the DBE certification status on the Internet at www.dot.ca.gov/hqlbep and keep the RE informed of changes that affect the contract The RE wi\l require the contractor to act in accordance with existing contractual commitments regardless of decertification. ".... The DLAE wi\l use the PS&E checklist to monitor the City of San Bernardino's commitment to <'-" require bidders list information to be submitted to the City of San Bernardino from the awarded prime and subcontractors as a means to develop a bidders list This monitoring wi\l only take 8 - 1........ place if the bidders list information is required to be submitted as stipulated in the special provIsIOns, The City of San Bernardino will bring to the attention of the DOT through the DLAE any false, fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps (e,g" referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided in 926.109, The City of San Bernardino also will consider similar action under our own legal authorities, including responsibility determinations in future contracts, XIV Overall Goals (926,45) Amount of Goal The City of San Bernardino's overall goal for the Federal fiscal year (FFY) 2000/2001 is the following: 13 % of the Federal financial assistance in FHW A-assisted contracts This overall goal is broken down into 10 % race-conscious and 3 % race-neutral components, r- Methodolol!V '- ,- '- Before working on this section, refer to the two step process and choice of methods in Section 9.4 of this chapter in the LAPM, Refer to "Appendix D" for the City of San Bernardino's Overall Annual DBE Goal Methodology for the FFY 2000/2001. 9 I"'""'- Breakout of Estimated Race-Neutral and Race-Conscious Participation '-' The City of San Bernardino shall achieve the overall annual goals for DBE participation through a combination of race-neutral and race-conscious measures including the use of contract-specific goals as needed to meet its overall annual DBE goaL Race-Neutral Measures The City of San Bernardino intends to use race-neutral measures to the extent feasible to achieve its overall annual goaL The City of San Bernardino will use the following measures as appropriate to facilitate DBE and other small business participation in the City of San Bernardino's contracting program: (a) (b) (c) (d) <- '-' (e) Configuring large contracts into smaller contracts to make contracts more accessible to small contractors, when doing so would not impose significant additional cost, delay or risk to the City of San Bernardino, Encouraging contractors to consider subcontractors for components of the work for which there is a known supply of ready, willing and able subcontractors, including DBE subcontractors, in preparing their bids, Assisting in overcoming limitations in bonding and financing, Providing technical assistance in orienting small contractors to public contracting procedures, use of the Internet, and facilitating introductions to the City of San Bernardino's and other FHW A recipients' contracting activities, Providing information on contract procedures and contract opportunities to ensure the inclusion ofDBEs and other small contractors, Race-Conscious Measures Goals {section 26.5lJ The City of San Bernardino will annually consider various factors to project levels of DBE participation to be met through race-conscious measures and will use race-conscious measures such as contract-specific goals to meet that portion of the overall goal which is not likely to be met utilizing race-neutral measures. The City of San Bernardino shall monitor and adjust the estimated utilization of race-neutral and race-conscious measures as required in accordance with regulatory guidelines. Process Starting with the Federal fiscal year 2002, the amount of overall goal, the method to calculate the goal, and the breakout of estimated race-neutral and race-conscious participation would be required annually by June I in advance of the Federal fiscal year beginning October I for FHWA-assisted contracts, Submittals will be to the Caltrans' DLAE, An exception to this will be if FT A or FAA recipients are required by FT A or FAA to submit the annual information to them or a designee by another date, FHW A recipients will follow this process: t"""" Once the DLAE has responded with preliminary comments and the comments have been '-' incorporated into the draft overall goal information, the City of San Bernardino will publish a notice of the proposed overall goal, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at the City of San Bernardino's 10 __ principal office for 30 days following the date of the notice, and informing the public that the \....- City of San Bernardino's comments will be accepted on the goals for 45 days following the date of the notice. Advertisements in newspapers, minority focus media, trade publications, and websites will be the normal media to accomplish this effort. The notice will include addresses to which comments may be sent and addresses (including offices and websites) where the proposal may be reviewed. The overall goal resubmission to the Caltrans DLAE, will include a summary of information and comments received during this public participation process and the City of San Bernardino's responses. This will be due by September I to the Caltrans DLAE. The DLAE will have a month to make a final review so the City of San Bernardino may begin using the overall goal on October I of each year. XV Contract Goals (g26.51) The City of San Bernardino will use contract goals to meet any portion of the overall goal the City of San Bernardino does not project being able to meet by the use of race-neutral means. Contract goals are established so that, over the period to which the overall goal applies, they will cumulatively result in meeting any portion of the overall goal that is not projected to be met through the use of race-neutral means. C Contract goals will be established only on those DOT -assisted contracts that have subcontracting possibilities. Contract goals need not be established on every such contract, and the size of contract goals will be adapted to the circumstances of each such contract (e,g., type and location of work, availability ofDBEs to perform the particular type of work). The contract work items will be compared with eligible DBE contractors willing to work on the project A determination will also be made to decide which items are likely to be performed by the prime contractor and which ones are likely to be performed by the subcontractor( s). The goal will then be incorporated into the contract documents. Contract goals will be expressed as a percentage of the total amount of a DOT-assisted contract XVI Transit Vehicle Manufacturers (g26.49) If DOT-assisted contracts will include transit vehicle procurements, the City of San Bernardino 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 TITLE 49 CFR Part 26, Section 49. The City of San Bernardino will direct the transit vehicle manufacturer to the subject requirements located on the Internet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm. - '-' 11 ,'-' XVII Good Faith Efforts (926.53) '- Information to be Submitted The City of San Bernardino treats bidders'/offerors' compliance with good faith effort requirements as a matter of responsiveness, A responsive proposal is meeting all the requirements of the advertisement and solicitation. Each solicitation for which a contract goal has been established will require the bidders/offerors to submit the following information to the City of San Bernardino, 300 North "D" Street, San Bernardino, CA 92418, no later than 4:00 p,m. on or before the fourth day, not including Saturdays, Sundays and legal holidays, following bid opening: L 2. 3. 4. 5, 6. 7. - 8, '- The names and addresses of known DBE firms that will participate in the contract. A description of the work that each DBE will perform, The dollar amount of the participation of each DBE firm participation, Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goaL Written and signed confirmation from the DBE that it is participating in the contract as provided in the prime contractor's commitment. If the contract goal is not met, evidence of good faith efforts, ( For Design-Build Contracts see also Attachment to this document) ( For Design-Build Contracts see also Attachment to this document) - ....... Demonstration of Good Faith Efforts The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts, Examples of good faith efforts are found in "Appendix A to Part 26", which is attached, ( For Design-Build Contracts see also Attachment to this document) The following personnel are responsible for determining whether a bidder/offeror who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive: Mr. Ronald C. Blymiller, DBE Liaison or designee The City of San Bernardino will ensure that all information is complete and accurate and adequately documents the bidder/offeror's good faith efforts before a commitment to the performance of the contract by the bidder/offeror is made. 12 ,- Administrative Reconsideration '- Within 10 days of being informed by the City of San Bernardino that it is not responsive because it has not documented sufficient good faith efforts, a bidder/offeror may request administrative reconsideration, Bidder/offerors should make this request in writing to the following reconsideration official: Raymond A. Casey, City Engineer Development Services - Public Works Division City of San Bernardino 300 North "D" Street San Bernardino, CA 92418, The reconsideration official will not have played any role in the original determination that the bidder/offeror did not make or document sufficient good faith efforts, As part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to meet the goaL The bidder/offeror will have the opportunity to meet in person with the reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to meet the goaL The City of San Bernardino will send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the r bidder did or did not meet the goal or make adequate good faith efforts to meet the goaL The '-' result of the reconsideration process is not administratively appealable to Caltrans, FHW A or the DOT, Good Faith Efforts when a DBE is Replaced on a Contract The City of San Bernardino will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goaL The prime contractor is required to notify the RE immediately of the DBE's inability or unwillingness to perform and provide reasonable documentation. In this situation, the prime contractor will be required to obtain the City of San Bernardino prior approval of the substitute DBE and to provide copies of new or amended subcontracts, or documentation of good faith efforts, If the contractor fails or refuses to comply in the time specified, the City of San Bernardino contracting office will issue an order stopping all or part of payment/work until satisfactory action has been taken, If the contractor still fails to comply, the contracting officer may issue a termination for default proceeding, r '- 13 ,...,...., XVIII Counting DBE Participation (S26.55) \- The City of San Bernardino will count DBE participation toward overall and contract goals as provided in the contract specifications for the prime contractor, subcontractor, joint venture partner with prime or subcontractor, or vendor of material or supplies. See the Caltrans' Sample BoilerPlate Contract Documents previously mentioned. Also, refer to XIII. "After Contract Award. " XIX Certification (S26.83(a)) The City of San Bernardino ensures that only DBE finns that are currently certified on the Caltrans' directory would participate as DBEs in our program. xx Information Collection and Reporting Bidders List The City of San Bernardino will create and maintain a bidder list, consisting of infonnation about all DBE and non-DBE finns that bid or quote on its DOT-assisted contracts. The bidder list will include the name, address, DBE/non-DBE status, age, and annual gross receipts offinns. ,..... '-' Monitoring Payments to DBEs Prime contractors are required to maintain records and documents of payments to DBEs for three years following the perfonnance of the contract. These records will be made available for inspection upon request by any authorized representative of the City of San Bernardino, Caltrans, FHW A, or DOT. This reporting requirement also extends to any certified DBE subcontractor. Payments to DBE subcontractors will be reviewed by the City of San Bernardino to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule ofDBE participation. Reporting to Caltrans The City of San Bernardino will report final utilization of DBE participation to the DLAE using Exhibit 17-F of the Caltrans' LAPM. ,-. '-' ,. .'- '---- - "- .~ '- Confidentiality The City of San Bernardino will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal, state, and local laws. Judith Valles, Mayor City of San Bernardino Date This Disadvantaged Business Enterprises Program is accepted by: Signature ofDLAE Date 15 - 'I........ I"""" '- - ....... This Program is in accordance with Title 49 of the Code of Federal Regulations Part 26 DISADVANTAGED BUSINESS ENTERPRISE PROGRAM FOR THE CITY OF SAN BERNARDINO I Definitions of Terms The terms used in this program have the meanings defined in Title 49 CFR ~26.5. II Objectives IPolicy Statement (~~26.1, 26.23) The City of San Bernardino has established a Disadvantaged Business Enterprise (DBE) program in accordance with regulations of the U.s. Department of Transportation (DOT), Title 49 CFR, Part 26. The City of San Bernardino has received Federal financial assistance from the DOT, and as a condition ofreceiving this assistance, the City of San Bernardino will sign an assurance that it will comply with Title 49 CFR, Part 26. (For Design-Build Contracts see also Attachment to this document) It is the policy of the City of San Bernardino to ensure that DBEs, as defined in Part 26, have an equal opportunity to receive and participate in DOT-assisted contracts. It is also our policy: +To ensure nondiscrimination in the award and administration of DOT-assisted contracts + To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts + To ensure that the DBE Program is narrowly tailored in accordance with applicable law + To ensure that only firms that fully meet Title 49 CFR, Part 26 eligibility standards are permitted to participate as DBEs +To help remove barriers to the participation ofDBEs in DOT-assisted contracts + To assist the development of firms that can compete successfully in the market place outside the DBE Program. ,_ Ronald Co Blymiller*, Associate Engineer with the Public Works Division, has been delegated as "-' the DBE Liaison Officer. In that capacity, Mr. Blymiller is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the City of San Bernardino in its financial assistance agreements with the California Department of Transportation (Caltrans). The City of San Bernardino has disseminated this policy statement to the Mayor and Common Council and all the components of our organization. We have distributed this statement to DBE and non-DBE business communities that perform work for us on DOT-assisted contracts by publishing this statement in general circulation, minority-focused and trade association publications. III Nondiscrimination (926.7) The City of San Bernardino will not 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 Title 49 CFR, Part 26 on the basis of race, color, sex, or national origin. In administering its DBE program, the City of San Bernardino will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect ,_ of defeating or substantially impairing accomplishment of the objectives of the DBE program '-' with respect to individuals of a particular race, color, sex, or national origin. IV DBE Program Updates (926.21) The City of San Bernardino will continue to carry out this program until the City of San Bernardino has established a new goal setting methodology or until significant changes to this DBE Program are adopted. The City of San Bernardino will provide to Caltrans a proposed overall goal and goal setting methodology and other program updates by June I of every year. V Quotas (926.43) The City of San Bernardino will not use quotas or set-asides in any way in the administration of this DBE program. - ,-. *New DBE Liaison Officer - 6/15/01 2 .- '- VI DBE Liaison Officer (DBELO) (926.45) The City of San Bernardino has designated the following individual as the DBE Liaison Officer: Mr. Ronald Co Blymiller, Associate Engineer* Division of Public Works, Department of Development Services 300 North "D" Street, San Bernardino, CA 92418 Phone: (909) 384-5154, E-mail: blymillerJo@cLsan-bernardino.ca.us In that capacity, Mr. Blymiller is responsible for implementing all aspects of the DBE program and ensuring that the City of San Bernardino complies with all provisions of Title 49 CFR, Part 26, "Participation by Disadvantaged Business Enterprise Regulations in Department of Transportation Financial Assistance Programs ". This is available on the Internet at osdbuweb.dot.gov/main.cfm. Mr. Blymiller has direct, independent access to the Mayor and Common Council concerning DBE program matters. An organization chart displaying the DBE Liaison Officer's position in the organization is found in "Appendix B" to this program. The DBE Liaison Officer is responsible for developing, implementing and monitoring the DBE program, in coordination with other appropriate officials. Duties and responsibilities include the following: I. Gathers and reports statistical data and other information as required. ,_ 2. Reviews third party contracts and purchase requisitions for compliance with this program. '- 3. Works with all departments to set overall annual goals for DBE participation in DOT- assisted contracts. 4. Ensures that bid notices and requests for proposals are available to DBEs in a timely manner. S. Identifies contracts and procurements so that DBE goals are included in solicitations when warranted (both race-neutral methods and contract specific goals) and monitors results. 6. Analyzes the City of San Bernardino's progress toward goal attainment and identifies ways to improve progress. 7. Participates in pre-bid meetings. 8. Advises the CEO/governing body on DBE matters and achievement. 9. Chairs the DBE Advisory Committee. 10. Participates with the legal counsel and project director to determine contractor compliance with good faith efforts. I L Provides DBEs with information and assistance in preparing bids, obtaining bonding and Insurance. 12. Plans and participates in DBE training seminars. 13. Provides outreach to DBEs and community organizations to advise them of opportunities. VII Federal Financial Assistance Agreement Assurance (926.13) The City of San Bernardino will sign the following assurance, applicable to all FHW A-assisted _ contracts and their administration as part of the program supplement agreement for each project: '- *New DBE Liaison Officer - 6/15/01 3 C 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 Title 49 CFR, part 26, The recipient shall take all necessary and reasonable steps under Title 49 CFR, Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient's DBE Program, as required by Title 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 UOS,C 3801 et seq,), [Note - this language is to be used verbatim, as it is stated in s26,13(a). However, approval authority of the recipient's DEE Program has been delegated to Caltrans for FHWA-assisted contracts} VIII DBE Financial Institutions It is the policy of the City of San Bernardino 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 C. encourage prime contractors on DOT-assisted contracts to make use of these institutions. Information on the availability of such institutions can be obtained from the DBE Liaison Officer. The Caltrans Disadvantaged Business Enterprise Program may offer assistance to the DBE Liaison Officer, IX DBE Directory (926.31) The City of San Bernardino will refer interested persons to the DBE directory available from the Caltrans Disadvantaged Business Enterprise Program website at www.dot.ca.gov/hq/bep. X Over-concentration (926.33) The City of San Bernardino has not identified any types of work in DOT-assisted contracts that have an over-concentration of DBE participation. If in the future, the City of San Bernardino identifies the need to address over-concentration, measures for addressing over-concentration will be submitted to the DLAE for approval. - '-' 4 ,........ \- - '-' ,-. "- XI Business Development Programs (926.35) The City of San Bernardino does not have a business development or mentor-protege program. If the City of San Bernardino identifies the need for such a program in the future, the rationale for adopting such a program and a comprehensive description of it will be submitted to the DLAE for approval. XII Required Contract Ctauses (9926.13,26.29) Contract Assurance The City of San Bernardino ensures that the following clause is placed in every DOT -assisted contract and subcontract: The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of TITLE 49 CFR. Part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as recipient deems appropriate. Prompt Payment The City of San Bernardino ensures that the following clauses or equivalent will be included in each DOT -assisted prime contract: Sati!i,factory Performance The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than 10 days from the receipt of each payment the prime contractor receives from the City of San Bernardino. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City of San Bernardino. This clause applies to both DBE and non-DBE subcontractors Release Qf Retainalle The prime contractor agrees further to release retainage payments to each subcontractor within 30 days after the subcontractor's work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City of San Bernardino. This clause applies to both DBE and non-DBE subcontractors. Onf{oinv Comvliance Monitorinr: 5 ~- It is the responsibility of the prime contractor to provide evidence of all subcontractor payments in accordance with the above stated Prompt Payment Provisions. Verification of payments made to subcontractors shall accompany each prime contractor's request for payment. As an alternative, the prime contractor can complete the City of San Bernardino Form: "Prompt Payment Certification" and submit with each request for payment. Failure to comply with the above stated provisions may result in a delay in processing the prime contractor's request for payment or be subject to other remedies as the City of San Bernardino deems appropriate. '- XIII Monitoring and Enforcement Mechanisms (g2637) The City of San Bernardino will assign a Resident Engineer (RE) or Contract Manager to monitor and track actual DBE participation through contractor and subcontractor reports of payments in accordance with the following: After Contract Award After the contract award, the City of San Bernardino will review the award documents for the portion of items each DBE and first tier subcontractor will be performing and the dollar value of that work. With these documents the RE/Contract Manager will be able to determine the work to be performed by the DBEs or subcontractors listed. r- ~ ( For Design-Build Contracts see also Attachment to this document) Preconstruction Conference A preconstruction conference will be scheduled between the RE and the prime contractor or their representative to discuss the work each DBE subcontractor will perform. (For Design-Build Contracts see also Attachment to this document) Before work can begin on a subcontract, the City of San Bernardino will require the contractor to submit a completed "Subcontracting Request", Exhibit l6-B of the Caltrans Local Assistance Program Manual (LAPM) or equivalent When the RE receives the completed form, it will be checked for agreement of the first tier subcontractors and DBEs. The RE will not approve the request when it identifies someone other than the DBE or first tier subcontractor listed in the previously completed "Local Agency Bidder DBE Information," Exhibit l5-G of the Caltrans LAPM. The "Subcontracting Request" will not be approved until all discrepancies are resolved. If an issue cannot be resolved at that time, or there is some other concern, the RE will require the contractor to eliminate the subcontractor in question before signing the subcontracting request A change in the DBE or first tier subcontractor may be addressed during a substitution process at a later date. Suppliers, vendors, or manufacturers listed on the "Local Agency Bidder DBE Information" will ,'" be compared to those listed in the completed Exhibit 16-1 of the Caltrans LAPM or equivalent \".... Differences must be resolved by either making corrections or requesting a substitution. 6 r- Substitutions will be subject to the Subletting and Subcontracting Fair Practices Act (FPA). The """ City of San Bernardino will require contractors to adhere to the provisions within Subletting and Subcontracting Fair Practices Act (State Law) Sections 4100-4144. FPA requires the contractor to list all subcontractors in excess of one half of one percent (0.5%) of the contractor's total bid or $10,000, whichever is greater. The statute is designed to prevent bid shopping by contractors. The FP A explains that a contractor may not substitute a subcontractor listed in the original bid except with the approval ofthe awarding authority. The RE will give the contractor a blank Exhibit 17-F, "Final Report Utilization of Disadvantaged Business Enterprises, First Tier Subcontractors" from the Caltrans LAPM and will explain to them that the document will be required at the end of the project, for which payment can be withheld, in conformance with the contract Construction Contract Monitoring The RE will ensure that the RE's staff (inspectors) know what items of work each DBE is responsible for performing. Inspectors will notify the RE immediately of apparent violations. When a firm other than the listed DBE subcontractor is found performing the work, the RE will notify the contractor of the apparent discrepancy and potential loss of payment Based on the contractor's response, the RE will take appropriate action: The DBE Liaison Officer will perform a preliminary investigation to identify any potential issues related to the DBE ..-. subcontractor performing a commercially useful function. Any substantive issues will be "'- forwarded to the Caltrans Disadvantaged Business Enterprise Program. If the contractor fails to adequately explain why there is a discrepancy, payment for the work will be withheld and a letter will be sent to the contractor referencing the applicable specification violation and the required withholding of payment If the contract requires the submittal of a monthly trucking document, the contractor will be required to submit documentation to the RE showing the owner's name, the California Highway Patrol CA number, and the DBE certification number of the owner of the truck for each truck used during that month for which DBE participation will be claimed. The trucks will be listed by California Highway Patrol CA number in the daily diary or on a separate piece of paper for documentation. The numbers are checked by inspectors regularly to confirm compliance. Providing evidence of DBE payment is the responsibility of the contractor. (For Design-Build Contracts see also Attachment to this document) Substitution -- "'- When a DBE substitution is requested, the RE/Contract Manager will request a letter from the contractor explaining why substitution is needed. The RE/Contract Manager must review the letter to be sure names and addresses are shown, dollar values are included, and reason for the request is explained. If the RE/Contract Manager agrees to the substitution, the RE/Contract, 7 c Manager will notify, in writing, the DBE subcontractor regarding the proposed substitution and procedure for written objection from the DBE subcontractor in accordance with the Subletting and Subcontracting Fair Practices Act If the contractor is not meeting the contract goal with this substitution, the contractor must provide the required good faith effort to the RE/Contract Manager for local agency consideration. Ifthere is any doubt in the RE/Contract Manager's mind regarding the requested substitution, the RE/Contract Manager may contact the DLAE for assistance and direction. Record Keepin~ and Final Report Utilization of Disadvantaged Business Enterprises The contractor shall maintain records showing the name and address of each first-tier subcontractor. The records shall also show: L The name and business address, regardless of tier, of every DBE subcontractor, DBE vendor of materials and DBE trucking company. 2. The date of payment and the total dollar figure paid to each of the firms. 3. The DBE prime contractor shall also show the date of work performed by their own forces along with the corresponding dollar value of the work claimed toward DBE goals. When a contract has been completed, the contractor will provide a summary of the records stated f""'" above. The DBE utilization information will be documented on Exhibit 17-F of Caltrans LAPM '-' and will be submitted to the DLAE attached to the Report of Expenditures. The RE will compare the completed Exhibit 17-F to the contractor's completed Exhibit 15-0 and, if applicable, to the completed Exhibit 16-B of Caltrans LAPM. The DBEs shown on the completed Exhibit 17-F should be the same as those originally listed unless an authorized substitution was allowed, or the contractor used more DBEs and they were added. The dollar amount should reflect any changes made in planned work done by the DBE. The contractor will be required to explain in writing why the names of the subcontractors, the work items or dollar figures are different from what was originally shown on the completed Exhibit 15-0 when: . There have been no changes made by the RE. . The contractor has not provided a sufficient explanation in the comment section of the completed Exhibit 17-F. The explanation will be attached to the completed Exhibit 17-F for submittaL The RE will file this in the project records. The City of San Bernardino's DBE Liaison Officer will keep track of the DBE certification status on the Internet at www.dot.ca.gov/hq/bep and keep the RE informed of changes that affect the contract The RE will require the contractor to act in accordance with existing contractual commitments regardless of decertification. "..... The DLAE will use the PS&E checklist to monitor the City of San Bernardino's commitment to \,... require bidders list information to be submitted to the City of San Bernardino from the awarded prime and subcontractors as a means to develop a bidders list This monitoring will only take 8 - place if the bidders list information is required to be submitted as stipulated in the special provIsions. '- The City of San Bernardino will bring to the attention of the DOT through the DLAE any false, 'fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided in 926.109. The City of San Bernardino also wil1 consider similar action under our own legal authorities, including responsibility determinations in future contracts. XIV Overall Goals (926.45) Amount of Goat The City of San Bernardino's overal1 goal for the Federal fiscal year (FFY) 2000/2001 is the fol1owing: 1.3..% of the Federal financial assistance in FHWA-assisted contracts This overal1 goal is broken down into 10 % race-conscious and ~ race-neutral ,.... components. ~ Methodology Before working on this section, refer to the two step process and choice of methods in Section 9.4 of this chapter in the LAPM. Refer to "Appendix 0" for the City of San Bernardino's Overal1 Annual DBE Goal Methodology for the FFY 2000/2001. ,- '- 9 C Breakout of Estimated Race-Neutral and Race-Conscious Participation The City of San Bernardino shall achieve the overall annual goals for DBE participation through a combination of race-neutral and race-conscious measures including the use of contract-specific goals as needed to meet its overall annual DBE goal. Race-Neutral Measures The City of San Bernardino intends to use race-neutral measures to the extent feasible to achieve its overall annual goaL The City of San Bernardino will use the following measures as appropriate to facilitate DBE and other small business participation in the City of San Bernardino's contracting program: (a) (b) (c) (d) ,- '- (e) Configuring large contracts into smaller contracts to make contracts more accessible to small contractors, when doing so would not impose significant additional cost, delay or risk to the City of San Bernardino. Encouraging contractors to consider subcontractors for components of the work for which there is a known supply of ready, willing and able subcontractors, including DBE subcontractors, in preparing their bids. Assisting in overcoming limitations in bonding and financing. Providing technical assistance in orienting small contractors to public contracting procedures, use of the Internet, and facilitating introductions to the City of San Bernardino's and other FHW A recipients' contracting activities. Providing information on contract procedures and contract opportunities to ensure the inclusion ofDBEs and other small contractors. Race-Conscious Measures Goals {section 26.511 The City of San Bernardino will annually consider various factors to project levels of DBE participation to be met through race-conscious measures and will use race-conscious measures such as contract-specific goals to meet that portion of the overall goal which is not likely to be met utilizing race-neutral measures. The City of San Bernardino shall monitor and adjust the estimated utilization of race-neutral and race-conscious measures as required in accordance with regulatory guidelines. Process Starting with the Federal fiscal year 2002, the amount of overall goal, the method to calculate the goal, and the breakout of estimated race-neutral and race-conscious participation would be required annually by June 1 in advance of the Federal fiscal year beginning October 1 for FHW A-assisted contracts. Submittals will be to the Caltrans' DLAE. An exception to this will be if FT A or FAA recipients are required by FT A or FAA to submit the annual information to them or a designee by another date. FHW A recipients will follow this process: _ Once the DLAE has responded with preliminary comments and the comments have been '"""' incorporated into the draft overall goal information, the City of San Bernardino will publish a notice of the proposed overall goal, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at the City of San Bernardino's 10 - principal office for 30 days following the date of the notice, and informing the public that the City of San Bernardino's comments will be accepted on the goals for 45 days following the date of the notice. Advertisements in newspapers, minority focus media, trade publications, and websites will be the normal media to accomplish this effort. The notice will include addresses to which comments may be sent and addresses (including offices and websites) where the proposal may be reviewed. ......... The overall goal resubmission to the Caltrans DLAE, will include a summary of information and comments received during this public participation process and the City of San Bernardino's responses. This will be due by September I to the Caltrans DLAE. The DLAE will have a month to make a final review so the City of San Bernardino may begin using the overall goal on October I of each year. XV Contract Goats (S26.51) The City of San Bernardino will use contract goals to meet any portion of the overall goal the City of San Bernardino does not project being able to meet by the use of race-neutral means. Contract goals are established so that, over the period to which the overall goal applies, they will cumulatively result in meeting any portion of the overall goal that is not projected to be met through the use of race-neutral means. _ Contract goals will be established only on those DOT -assisted contracts that have subcontracting '--' possibilities. Contract goals need not be established on every such contract, and the size of contract goals will be adapted to the circumstances of each such contract (e.g., type and location of work, availability ofDBEs to perform the particular type of work). The contract work items will be compared with eligible DBE contractors wilIing to work on the project. A determination will also be made to decide which items are likely to be performed by the prime contractor and which ones are likely to be performed by the subcontractor(s). The goal will then be incorporated into the contract documents. Contract goals will be expressed as a percentage of the total amount of a DOT -assisted contract. XVI Transit Vehicle Manufacturers (S26.49) If DOT -assisted contracts will include transit vehicle procurements, the City of San Bernardino 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 TITLE 49 CFR Part 26, Section 49. The City of San Bernardino will direct the transit vehicle manufacturer to the subject requirements located on the Internet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm. - ......... 11 ,- , '- XVII Good Faith Efforts (926.53) Information to be Submitted The City of San Bernardino treats bidders'/offerors' compliance with good faith effort requirements as a matter of responsiveness. A responsive proposal is meeting all the requirements of the advertisement and solicitation. Each solicitation for which a contract goal has been established will require the bidders/offerors to submit the following information to the City of San Bernardino, 300 North "0" Street, San Bernardino, CA 92418, no later than 4:00 p.m. on or before the fourth day, not including Saturdays, Sundays and legal holidays, following bid opening: L The names and addresses of known OBE firms that will participate in the contract 2. A description of the work that each OBE will perform. 3. The dollar amount of the participation of each OBE firm participation. 4. Written and signed documentation of commitment to use a OBE subcontractor whose participation it submits to meet a contract goaL 5. Written and signed confirmation from the OBE that it is participating in the contract as provided in the prime contractor's commitment 6. If the contract goal is not met, evidence of good faith efforts. 7. (For Design-Build Contracts see also Attachment to this document) _ 8. (For Design-Build Contracts see also Attachment to this document) i '-' ~ '- Demonstration of Good Faith Efforts The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. Examples of good faith efforts are found in "Appendix A to Part 26", which is attached. ( For Design-Build Contracts see also Attachment to this document) The following personnel are responsible for determining whether a bidder/offeror who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive: Me. Ronald C. Blymiller, OBE Liaison or designee The City of San Bernardino will ensure that all information is complete and accurate and adequately documents the bidder/offeror's good faith efforts before a commitment to the performance of the contract by the bidder/offeror is made. 12 _ Administrative Reconsideration '- Within 10 days of being informed by the City of San Bernardino that it is not responsive because it has not documented sufficient good faith efforts, a bidder/offeror may request administrative reconsideration. Bidder/offerors should make this request in writing to the following reconsideration official: Raymond A. Casey, City Engineer Development Services - Public Works Division City of San Bernardino 300 North "D" Street San Bernardino, CA 92418. The reconsideration official will not have played any role in the original determination that the bidder/offeror did not make or document sufficient good faith efforts. As part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to meet the goal. The bidder/offeror will have the opportunity to meet in person with the reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to meet the goal. The City of San Bernardino will send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the _ bidder did or did not meet the goal or make adequate good faith efforts to meet the goal. The '--' result of the reconsideration process is not administratively appealable to Caltrans, FHW A or the DOT. Good Faith Efforts when a DBE is Reptaced on a Contract The City of San Bernardino will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal. The prime contractor is required to notify the RE immediately of the DBE's inability or unwillingness to perform and provide reasonable documentation. In this situation, the prime contractor will be required to obtain the City of San Bernardino prior approval of the substitute DBE and to provide copies of new or amended subcontracts, or documentation of good faith efforts. If the contractor fails or refuses to comply in the time specified, the City of San Bernardino contracting office will issue an order stopping all or part of payment/work until satisfactory action has been taken. If the contractor still fails to comply, the contracting officer may issue a termination for default proceeding. - --- 13 I"'" XVIII Counting DBE Participation (g26.SS) '-' The City of San Bernardino will count DBE participation toward overall and contract goals as provided in the contract specifications for the prime contractor, subcontractor, joint venture partner with prime or subcontractor, or vendor of material or supplies. See the Caltrans' Sample BoilerPlate Contract Documents previously mentioned. Also, refer to XIII. "After Contract Award." XIX Certification (g26.83(a)) The City of San Bernardino ensures that only DBE firms that are currently certified on the Caltrans' directory would participate as DBEs in our program. xx Information Collection and Reporting Bidders List The City of San Bernardino will create and maintain a bidder list, consisting of information about all DBE and non-DBE firms that bid or quote on its DOT-assisted contracts. The bidder list will include the name, address, DBE/non-DBE status, age, and annual gross receipts of firms. ,-. '-' Monitoring Payments to DBEs Prime contractors are required to maintain records and documents of payments to DBEs for three years following the performance of the contract These records will be made available for inspection upon request by any authorized representative of the City of San Bernardino, Caltrans, FHW A, or DOT. This reporting requirement also extends to any certified DBE subcontractor. Payments to DBE subcontractors will be reviewed by the City of San Bernardino to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule ofDBE participation. Reporting to Caltrans The City of San Bernardino will report final utilization of DBE participation to the DLAE using Exhibit 17-F of the Caltrans' LAPM. ,-. '- 14 - '-'" - \"... ;~ "- Confidentiality The City of San Bernardino will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal, state, and local laws. Judith Valles, Mayor City of San Bernardino Date This Disadvantaged Business Enterprises Program is accepted by: Signature ofDLAE Date 15 .f""" '-' ATTACHMENT TO DBE PROGRAM TO BE USED FOR DESIGN-BUILD CONTRACTS The following are hereby incorporated into the Agency's Disadvantaged Business Enterprise (DBE) Program: II Objectives {Policy Statement (9926.1,26.23) At the end of the first paragraph, add the following: The Agency recognizes that certain modifications are necessary to adapt the program for use in connection with design-build contracts, and has therefore established certain procedures applicable to design-build DBE contracts under the DBE Program. Public Contract Code Section 4109 requires subcontractors to be identified by the prime contractor for the subletting or subcontracting of any portion of the work in excess of one-half of 1 percent of the prime contractor's total bid. Exceptions are only in the cases of public emergency or necessity, and then only after a finding reduced to writing as a public record of ,- the awarding authority setting forth the facts constituting the emergency or necessity. The ~ written public record of the awarding authority/Agency as to either emergency or necessity is attached hereto. See "Appendix E" for example. XIII Monitoring and Enforcement Mechanisms (926.37) At the end of the first paragraph below "After Contract Award", add the following paragraph: After Design-Build Contract Award - '- As described in the Section entitled "GOOD FAITH EFFORTS" below, each proposer for an Agency design-build contract will be required to submit a DBE Performance Plan as part of a responsive proposaL Following award of a design-build contract and during both the design and construction portions of the project, the design-build contractor will be required to submit documentation, in the form of progress reports described below, to show that the design-build contractor is meeting the contract goal for the project, or if the goal is not being met, the design-build contractor must submit satisfactory evidence that it has made good faith efforts, in accordance with that Section, to meet the goaL Evidence of good faith efforts, as described in 49 CFR Part 26 Section 26.5349 and Appendix A, will be monitored by the Agency throughout the duration of the design-build project. r '- ATTACHMENT TO DBE PROGRAM TO BE USED FOR DESIGN-BUILD CONTRACTS At the end of the first paragraph below "Preconstruction Conference", add the following sentence: . . . . . . . .. The contractor will promptly provide the Agency with the information required by the form entitled "Local Agency DBE Information" upon selection of any DBE or other subcontractor not previously identified by the design-build contractor. During the course of the contract, differences must be explained and resolved by either making corrections or requesting a substitution. At the end of the fourth paragraph below "Construction Contract Monitoring", add the following paragraph: ,- '- The contractor will provide DBE Progress Reports to the Agency with each invoice and will provide an annual report on or before August 1 of each year of the design-build contract. Each report must also include a narrative summary stating whether the contractor is on target with respect to the DBE goal set forth in the design-build contract, whether the goal has been exceeded (stating the amount of the excess), or whether the contractor is behind target (stating the amount of the deficit). XVII Good Faith Efforts (926.53) At the end of the third paragraph below "Information to be Submitted", add the following items: 7. A DBE Performance Plan containing a detailed description of the design-build contractor's planned methodology for achieving the DBE goal stated in the contract, including a description of the good faith efforts the design-build contractor intends to undertake to achieve that goal. 8. A design-build proposal must also include an affidavit that the proposer will either attain the DBE goals for the design-build contract or will exercise good faith efforts to do so. At the end of the first paragraph below "Demonstration of Good Faith Efforts", add the following sentence: r . . . . . . . .. Ifit is a design-build contract, each contractor proposing will be required to '- submit a DBE Performance Plan as part of a responsive proposal and good faith efforts. 2 - '-' r'"' '- .r'"' '- ATTACHMENT TO DBE PROGRAM TO BE USED FOR DESIGN-BUILD CONTRACTS Judith Valles, Mayor City of San Bernardino Date This Attachment to the Disadvantaged Business Enterprise Program to be used for Design-Build Contracts is accepted by: Signature of DLAE Date 3 City of San Bernardino DB E PROGRAM ,- I APPENDIX A I \- APPENDIX A TO PART 26 GUIDANCE CONCERNING GOOD FAITH EFFORTS I When, as a recipient, you establish a contract goal on a DOT -assisted contract, a bidder must, in order to be responsible and/or responsive, make good faith efforts to meet the goal. The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting commitments for participation by DBE firms sufficient for this purpose. Second, even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This means that the bidder must show that it took all necessary and reasonable steps to achieve a DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful. ~ '- II In any situation in which you have established a contract goal, part 26 requires you to use the good faith effort mechanism of this part. As a recipient, it is up to you to make a fair and reasonable judgment whether a bidder that did not meet the goal made adequate good faith efforts. It is important for you to consider the quality, quantity, and intensity of the different kinds of efforts that the bidder has made. The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere jlIQ forma efforts are not good faith efforts to meet the DBE contract requirements. We emphasize, however, that your determination concerning the sufficiency of the firm's good faith efforts is a judgment call: meeting quantitative formulas is not required. III The Department also strongly cautions you against requiring that a bidder meet a contract goal (Le., obtain a specified amount of DBE participation) in order to be awarded a contract, even though the bidder makes an adequate good faith efforts showing. This rule specifically prohibits you from ignoring hlmll ~ good faith efforts. r- '- City of San Bernardino DB E PROGRAM I APPENDIX A I ,- \--- IV The following is a list of types of actions, which you should consider as part of the bidder's good faith efforts to obtain OBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases. A. Soliciting through all reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified OBEs who have the capability to perform the work of the contract The bidder must solicit this interest within sufficient time to allow the OBEs to respond to the solicitation. The bidder must determine with certainty if the OBEs are interested by taking appropriate steps to follow up initial solicitations. B. Selecting portions of the work to be performed by OBEs in order to increase the likelihood that the OBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate OBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces. ,... '-' C. Providing interested OBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation. O. (1) Negotiating in good faith with interested OBEs. It is the bidder's responsibility to make a portion of the work available to OBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available OBE subcontractors and suppliers, to facilitate OBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of OBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for OBEs to perform the work. ~ ''-" (2) A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including OBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using OBEs is not in itself sufficient reason for a bidder's failure to meet the contract OBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from OBEs if the price difference is excessive or unreasonable. 2 City of San Bernardino DB E PROGRAM ,- I APPENDIX A I ...... E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the contractor's efforts to meet the project goal. F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor. G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. H. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement ofDBEs. ,- '- V In determining whether a bidder has made good faith efforts, you may take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise the question of whether, with additional reasonable efforts; the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but meets or exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts. ,-. ...... 3 ,- ,r '-... ,,-. '-' - '- CITY OF SAN BERNARDINO DBE PROGRAM ORGANIZATIONAL CHART City of San Bernardino DB E PROGRAM I APPENDIX B I City of San Bernardino MAYOR AND COMMON COUNCIL CITY ADMINISTRATOR Fred Wilson DIRECTOR OF EQUAL EMPLOYMENT DEVELOPMENT SERVICES OFFICER James Funk Wallace Green PUBLIC WORKS CITY ENGINEER Raymond A. Casey ASSOCIATE ENGINEER DBE LIAISON OFFICER Ronald C. Blymiller* *N~w ORE I j~i<nn Offi"~r - 6/15101 - i_ r- i...- r '- City of San Bernardino DB E PROGRAM I APPENDIX C I PROMPT PAYMENT CERTIFICATION I, , hereby certify that (Name) (Prime Contractor) has fully complied with all Prompt Payment provisions set forth in the City of San Bernardino's DBE Program, and will make verification of payment records immediately available at the City of San Bernardino's request. I certify under penalty of perjury that the information provided is true and correct Signature Date ,...-.... ,~ r- \...- ,-. '-' City of San Bernardino DB E PROGRAM I APPENDIX C I CITY OF SAN BERNARDINO PUBLIC WORKS BIDDERS LIST All bidders/proposers are required to provide the following information for all DBE and non- DBE contractors, who provided a proposal, bid, quote, or were contacted by the proposed prime. This information is also required from the proposed prime contractor, and must be submitted with their bid/proposal. The CITY of SAN BERNARDINO will use this information to maintain and update a Bidders List to assist in the overall annual DBE goal setting process. Firm Name: Phone: Address: Fax: Contact Person: No. of Years in Business: Is the firm currently certified as DBE under the new regulations (Title 49 CFR,Part 26)? DYES 0 NO If "yes", provide DBE Certification Number: Type of work / services / materials provided by firm: What were your firm's Gross Annual receipts for last year? Less than $1 Million Less than $5 Million Less than $10 Million Less than $15 Million More than $15 Million Thisform can be duplicated ifnecessary to repon all bidders (DBEs and non-DBEs) information. City of San Bernardino DB E PROGRAM ,"""'" I APPENDIX D I '....... CITY OF SAN BERNARDINO BASELINE DISADVANTAGED BUSINESS ENTERPRISE (DBE) GOAL METHODOLOGY FOR FEDERAL FISCAL YEAR (FFY) 200112002 (October 1, 2001 to September 30,2002) INTRODUCTION: An Overall Annual Goal was established for DBE participation in City of San Bernardino's FY 2001/2002 DOT -assisted contracts in compliance with recently revised federal regulations set forth in Title 49 CFR, Part 26, Participation by Disadvantaged Business Enterprises in Us. Department of Transportation (DOT) Programs and in Caltrans' Local Assistance Procedures Manual. The recommended Overall Annual DBE Goal for contracts assisted by DOT is 13.%.. This goal identifies the relative availability ofDBEs based on evidence of ready, willing r- and able DBEs in relationship to all comparable businesses which are known to be available to "-' compete for the City of San Bernardino' s DOT-assisted contracts. The following describes the methodology undertaken to establish the recommended goal and the race-neutral and race- conscious measures, which would be applied to achieve the overall goal. I. DOT ASSISTED CONTRACTING PROGRAM FOR FFY 2001/02 Tabte 1 below presents the anticipated areas of contracting, by project type for which the City of San Bernardino (City) intends to disburse Department of Transportation (DOT) assisted funds for transportation-related projects in FFY 2001/02, as follows: Table 1 Proiect Tvoe Street Construction Street Rehabilitation Signalization Bridge Seismic Retrofit - ........, S:/PublicWorksIDBEIDBE Goal Ol-02-Appendix D City of San Bernardino DB E PROGRAM - I APPENDIX D I "'"" Table 2 below represents a summary of corresponding subspecialty work areas grouped under two primary categories; Construction and Professional Services. The Caltrans DBE Directory Work Category Codes (WWC) and Descriptions and comparable 1997 and 1998 Census Business Patterns database, North American Industry Classification System (NAICS) work category codes utilized are also presented, as follows: Table 2 PRIMARY WORK CAL TRANS NAICS CATEGORY WORK CATEGORY CATEGORY DESCRIPTION CODES . CONSTRUCTION: C1601, C1910, C2000, C2201, Highway & Street C3910, C3901, C5620, C7112, 23411 Construction C7191, C8406, C8501, C8602, C1901, C5110, C5135, C7301 PROFESSIONAL SERVICES: Enl!:ineerinl! Services I C8703, C8720, C8760, C8770 I 54133 - '- II. GOAL-METHODOLOGY Step I: Determination of a Base Figure (26.45) To determine a Base Figure of relative availability ofDBEs, the City embraced a methodology which included a review of the ratio of all available (ready, willing and able) established DBE firms in relation to all available established firms within the City's market area. This was accomplished by utilizing the Caltrans on-line Bulletin Board System (BBS) DBE Directory of Certified Firms within the two primary work categories as its numerator and the 1997 and 1998 U.s. Census Bureau County Business Patterns (CBP) Database of all comparable established firms as its denominator. The City made a concerted effort to ensure that the scope of businesses included in the numerator was as close as possible to the scope included in the denominator. To derive the relative availability ofDBEs for each major work category, the City divided the numerator 1 by the denominato~, which yielded a Base Figure, utilizing the following formula: Number of Ready, Willing and Able DBE Firms = BASE FIGURE Number of All Available Firms r '- I Numerator represents all available established DBE firms within the San Bernardino County. 1 Denominator represents all available established firms within the San Bernardino County. S:/PublicWorksIDBE/DBE Goal OI-02-Appendix D City of San Bernardino DB E PROGRAM j"-' I APPENDIX D I '- Table 3 below presents the results of the application of this formula within each major category, and the basis for calculating the resultant Base Figure of the relative availability of DBEs. Table 3 Base Figure = (DBEs in CI60l CI910*\+ CBPs in NAICS 23411 ** Base Figure = [L2ID + illl ] 770 300 Base Figure = G779 + .0567 ] (DBEs in C8703. C8720*\ CBPs in NAICS 23571 ** Base Figure = (.1346) 100= 13.46= 13%*** r- "- * For detailed listing of all Caltrans Work Categories grouped in each major category, refer to City's Regional DBE Goal Analysis for FFY 2001/2002. Attachment I ** For detailed listing of all NAICs and SIC Work Codes grouped in each major category, refer to City's Regional DBE Goal Analysisfor FFY 2001/2002, Attachment Il *** Rounded to the nearest whole number. Step II: Adjustment of the Base Figure The Base Figure of 13% was not further adjusted, as each respective member agency within City's jurisdiction will perform this task to ensure narrow tailoring, in conformance with Title 49 CFR, Part 26 prescribed goal setting methodology. Therefore, the resultant Base Figure remains 13%. III. OVERALL ANNUAL GOAL AND PROJECTION OF RACE-NEUTRAL AND RACE-CONCIUS PARTICIPATION - The Overall Annual ( FFY 2001/2002) DBE Goal for the City of San Bernardino's DOT -assisted contracts is ll%. The Overall Goal is expressed as a percentage of all DOT-assisted funds that the City of San Bernardino will expend in FHWA-assisted contracts in the forthcoming fiscal year. "-' This goal further serves to identify the relative availability of DBEs based on evidence of ready, willing, and able DBEs compared to all firms known to be available to compete for and S:/PublicWorksIDBE/DBE Goal OI-02-Appendix D City of San Bernardino DB E PROGRAM -- I APPENDIX D I i..... perform on the City of San Bernardino's DOT-assisted contracts. The Overall Annual Goal reflects a determination of the level ofDBE participation, which would be expected absent the effects of discrimination. The City of San Bernardino projects to meet ill of the goal utilizing race-neutrat methods, including making efforts to assure that bidding and contract requirements facilitate participation by DBEs and other small businesses in conformance with new regulatory requirements. The City of San Bernardino projects to meet the remaining l!1% of the goat utilizing race-conscious measures, including utilizing contract-specific numeric goals, as necessary, to achieve the overall goal. IV. PUBLIC PARTICIPATION AND FACILITATION In conformance with Public Participation Regulatory Requirements of Title 49 CFR, Part 26 and Caltrans Local Assistance Procedures Manual (LAPM), this goal analysis will be offered for review by minority, women, local business chambers, and community organizations within the City of San Bernardino's geographic market area. Additionally, the City of San Bernardino will publish a Public Notice in general circulation media announcing the City's overall Annual Goal for the FFY 200I/2002 DOT-assisted __ contracts. Such notice will inform the public that the proposed goal and its rationale is \....- available for inspection at the City of San Bernardino's Public Works Division, on the 3rd floor of City Hall during normal business hours for 30 days following the date of the Public Notice and that the City of San Bernardino will accept comments on the goal analysis for 45 days from the date of the Public Notice. The required public participation provisions will be fully satisfied prior to submitting the City of San Bernardino's DBE Program and Overall Annual DBE Goal to Caltrans for final review and approvaL I""" '-' S:/PublicWorks/DBE/DBE Goal OI-02-Appendix D City of San Bernardino DB E PROGRAM I APPENDIX D I ,..-. i......- CITY OF SAN BERNARDINO DBE GOAL ANALYSIS FOR FFY 2001/2002 ATTACHMENT I IESTABLISHMENT OF THE NUMERATOR: # OF ESTABLISHED DBE FIRMS IN SAN BERNARDINO COUNTY1 S.B. COUNTY ZIP CODES CONSTRUCTION: NAICS CODE: 23411 Highway & Street Construction 917 922 923 924 935 TOTAL CI601 Clearing & Grubbing 4 4 12 3 3 26 C1910 Grading C2000 Highway Planting C2201 Finishing Roadway C3910 Paving Asphalt C3901 Asphalt Concrete 3 0 3 3 10 C5620 Roadside Sign I"""" C7112 Reinforce Concrete Sewer Pipe .'-' C7191 Sewer Manhole C8406 Painted Traffic Stripe & Marking C8501 Pavement Marking 3 6 2 0 12 C8602 Signal & Lighting C 190 I Roadway Excavation HIGHWAY & STREET CONSTRUCTION 48 NAICS CODE: 23571 Concrete Contractors C5110 Concrete Surface Finish 5 2 5 0 0 12 C5135 Concrete Block & Masonry Retaining Wall C7301 Concrete Curb & Sidewalk CONCRETE CONTRACTORS 12 PROFESSIONAL SERVICES NAICS CODE: 54133 Engineering Services 2 0 0 4 C8703 Traffic Engineer NAICS CODE 54136 Geophysical Surveying & Mapping C8760 Surveyor 3 0 2 0 6 SIC CODE 8741 Management Services C8770 Construction Management 3 2 0 7 I"""" ENGINEERING SERVICES, '-' GEOPHYSICAL SURVEYING AND MAPPING AND MANAGEMENT SERVICES 17 1 DATA SOURCE: Caltrans Bulletin Board System List of DBE Certified Finns <;:../llllhlirWnrlr.,dnRPfnRJ: nn!:lll (l1.0"_Att~('hmpnt T City of San Bernardino DB E PROGRAM I APPENDIX D I -- CITY OF SAN BERNARDINO DBE GOAL ANALYSIS FOR FFY 2001/2002 I ESTABLISHMENT OF THE DENOMINATOR: I ATTACHMENT II # OF ESTABLISHED DBE FIRMS IN SAN BERNARDINO COUNTY1 CONSTRUCTION: NAICS AND SIC CODE NAICS/SIC DESCRIPTION HIGHWAY 8r. STREET CONSTRUCTION BRIDGE 8r. TUNNEL CONSTRUCTION ALL OTHER HEAVY CONSTRUCTION PAINTING 8r. WALL COVERING CONTACTORS EXCAVATION CONTRACTORS ALL OTHER SPECIAL TRADE CONTRACTORS ASPHALT PAVING, ROOFING 8r.SATURATED MATERIAL MANUFACTURING HIGHWAY 8r. STREET CONSTRUCTION FERROUS METAL FOUNDRIES CONCRETE CONTRACTORS MASONRY 8r. STONE CONTRACTORS TOTAL ESTABUSHED FIRMS c 23411 23412 23499 23521 23593 23599 32412 1610 33151 23571 23541 51 6 79 148 54 156 11 59 4 136 66 770 PROFESSIONAL SERVICES: NAICS AND SIC CODE NAICS/SIC DESRIPTION: 54133 ENGINEERING SERVICES 185 54136 GEOPHYSICAL SURVEYING 8r. MAPPING SERVICES 3 8741 MANAGEMENT SERVICES 112 TOTAL NUMBER OF FIRMS 300 r- '- I DATA SOURCE: U,S, Census Bureau: County Business Patterns, NAICS and SIC Work S:/PubIicWorksJDBEIDBE Goal Ol-02-Attachment II City of San Bernardino DB E PROGRAM I APPENDIX E I '",-", EXAMPLE OF RESOLUTION OF THE CITY OF SAN BERNARDINO REGARDING NECESSITY OR EMERGENCY FOR SUBSEQUENT SUBCONTRACTOR IDENTIFICATION AND SELECTION FOR DESIGN-BUILD CONTRACTS ( REQUIRED BY PUBLIC CONTRACT CODE SECTION 4109 ENTITLED "Public Emergency Grounds For Change" ) RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE NECESSITY / EMERGENCY FOR SUBSEQUENT SUBCONTRACTOR(S) IDENTIFICATION AND SELECTION AND ADOPTION OF THE PROCEDURE TO BE USED BY (insert Design-Build Contractor name) FOR SUBSEQUENT SUBCONTRACTOR(S) IDENTIFICATION AND SELECTION WHEREAS, "."." ,- --- WOULD INCLUDE THE FOLLOWING: EXPLANATION OF PUBLIC NECESSITY OR EMERGENCY FACTS CONSTITUTING THE PUBLIC NECESSITY OR EMERGENCY FINDINGS THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. ""..... SECTION 1. WOULD INCLUDE RESOLUTION APPROVING THE NECESSITY OR EMERGENCY FOR SUBSEQUENT SUBCONTRACTOR(S) IDENTIFICATION SECTION 2. SECTION 2. WOULD INCLUDE: - ADOPTION OF PROCEDURE TO BE USED BY DESIGN-BUILD CONTRACTOR FOR SUBSEQUENT IDENTIFICATION OF SUBCONTRACTORS "-' Page 1 of2 City of San Bernardino DB E PROGRAM I APPENDIX E I '~ RESOLUTION OF ..... APPROVING THE NECESSITY I EMERGENCY FOR SUBSEQUENT SUBCONTRACTOR(S) IDENTIFICATION AND SELECTION AND ADOPTION OF THE PROCEDURE TO BE USED BY (insert Design-Build Contractor name) FOR SUBSEQUENT SUBCONTRACTOR(S) IDENTIFICATION AND SELECTION I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of ,2001, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA LIEN MC GINNIS !..- '- SCHNETZ SUAREZ ANDERSON MC CAMMACK City Clerk The foregoing resolution is hereby approved this day of ,2001. Judith Valles, Mayor City of San Bernardino Approved as to form and legal content: - JAMES F. PENMAN, City Attorney -- By: III Page 2 of2 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): 8- dO-C)\ Item # Vote: Ayes 1,"1-") Nays-G Change to motion to amend original documents: 1(, Resolution # ~ (XJ \ - ;;i5 (p Abstain --e Absent .2.. '3 Reso. # On Attachments: ~ Contract term: Note on Resolution of Attachment stored separately: ==-- Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY Date Sent to Mayor: X- - dd - () I Date of Mayor's Signature: 6-2.~--{)1 Date ofClerklCDC Signature: ';s--e..3-G , Date Memo e 60 Day Reminder Letter Sent on 30th day: 90 Day Reminder Letter Sent on 45th day: See Attached: See Attached: See Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234, 655, 92-389): Copies Distrihuted to: City Attorney / Parks & Rec. Code Compliance Dev. Services / Public Services Water Police Notes: NullNoid After: - By: - Reso. Log Updated: / Seal Impressed: ./" Date Returned: -- Yes / No By - Yes No-L By Yes No / By Yes No / By Yes N07 By EDA Finance MIS Others: BEFORE FILING, REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term, etc,) Ready to File: ~ Date: 'is' -d'l-()/ Revised 01/12/0 I