HomeMy WebLinkAbout2009-083
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RESOLUTION NO. 2009-83
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ADOPTING THE CALIFORNIA DEPARTMENT OF
TRANSPORTATION DISADVANTAGED BUSINESS ENTERPRISE (DBE)
IMPLEMENTATION AGREEMENT FOR FEDERAL FINANCIAL ASSISTANCE
PROJECTS.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
WHEREAS, 49 CFR, Part 26 requires recipients ofU. S. Department of Transportation
funds to implement and maintain a Disadvantaged Business Enterprises (DBE) Program; and
WHEREAS, the City of San Bernardino intends to be a recipient of U. S. Department
of Transportation funds through the California Department of Transportation.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
The California Department of Transportation Disadvantaged Business Enterprise
Implementation Agreement is hereby adopted, the City Engineer is hereby appointed as the
City's DBE Liaison Officer (DBELO) and is hereby authorized to execute, on behalf of the
City, said Implementation Agreement, attached hereto and incorporated in this resolution as
Exhibit 9-A.
III
III
2009-83
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ADOPTING THE CALIFORNIA DEPARTMENT OF
TRANSPORTATION DISADVANTAGED BUSINESS ENTERPRISE (DBE)
IMPLEMENTATION AGREEMENT FOR FEDERAL FINANCIAL ASSISTANCE
PROJECTS.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
joint
and Common Council of the City of San Bernardino at a regular meeting thereof, held on the
20th day of April , 2009, by the following vote, to wit:
Council Mernbers: AYES NAYS ABSTAIN ABSENT
ESTRADA X
BAXTER X
BRINKER X
X
SHORETT
X
KELLEY
JOHNSON X
MC CAMMACK X
a~ 1;;. ~
CitYClerk
20 The foregoing resolution is hereby approved this d3,~ day of April, 2009.
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24 Approved as to form
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2009-83
Exhibit 9-A .
CALIFORNIA DEPARTMENT OF TRANSPORTATION
DISADVANTAGED BUSINESS ENTERPRISE
IMPLEMENTATION AGREEMENT
For the CITY OF SAN BERNARDINO, hereinafter referred to as "RECIPIENT."
I Definition of Terms
The terms used in this agreement have the meanings defined in 49 CFR ~ 26.5.
II OBJECTIVE I POLICY STATEMENT (~26/1. 26/23)
The RECIPIENT intends to receive federal financial assistance from the U. S. Department of
Transportation ( DOT ) through the California Department of Transportation ( Caltrans ), and as a
condition of receiving this assistance, the RECIPIENT will sign the California Department of
Transportation Disadvantaged Business Enterprise Implementation Agreement ( hereinafter referred to
as Agreement). The RECIPIENT agrees to implement the State of California, Department of
Transportation Disadvantaged Business Enterprise ( DBE ) Program Plan ( hereinafter referred to as
the DBE Program Plan) as it pertains to local agencies. The DBE Program Plan is based on U.S.
Department of Transportation (DOT), 49 CFR, Part 26 requirements.
It is the policy of the RECIPIENT to ensure that DBEs, as defined in Part 26, have an equal
opportunity to receive and participate in DOT -assisted contracts. It is also their policy:
· To ensure nondiscrimination in the award and administration of DOT-assisted contracts.
· To create a level playing field on which DBE's can compete fairly for DOT-assisted contracts.
· To ensure that their annual overall DBE participation percentage is narrowly tailored, in
accordance with applicable law.
· To ensure that only firms that fully meet 49 CFR, Part 26 eligibility standards are permitted to
participate as DBEs.
· To help remove barriers to the participation of DBEs in DOT -assisted contracts. c::> ,..,
to 00
· To assist the development of firms that can compete successfully in the market pla~u/;;i
the DBE Program. ::0 ~,...;:::
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III Nondiscrimination ( ~26.7 ') ~ ~~g:
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RECIPIENT will never exclude any person from participation in, deny any person the ~ef'~~f, or
otherwise discriminate against anyone in connection with the award and performance otany ciffitract
covered by 49 CFR, Part 26 on the basis of race, color, sex, or national origin. In administering the
local agency components of the DBE Program Plan, the RECIPIENT will not, directly, or through
contractual or other arrangements, use criteria or methods of administration that have the effect of
defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with
respect to individuals of a particular race, color, sex, or national origin.
March 4, 2009
2009-83
IV Annual DBE Submittal Form ( ~26.21 )
The RECIPIENT will provide to the Caltrans District Local Assistance Engineer ( DLAE ) a
completed Local Agency DEE Annual Submittal Form ( Exhibit 9-B ) by June I of each year for the
following Federal Fiscal Year (FFY). This form includes an Annual Anticipated DBE Participation
Level ( AADPL ), methodology for establishing the AADPL, the name, phone number, and electronic
mailing address of the designated DBELO, and the choice of Prompt Pay Provision to be used by the
RECIPIENT for the following FFY.
Exhibit 9-A .
V Race-Neutral Means of Meeting the Annual DBE Goal (~26.51)
RECIPIENT must meet the maximum feasible portion of its AADPL by using. race-neutral means of
facilitating DBE participation. Race-neutral DBE participation includes any time a DBE wins a prime
contract through customary competitive procurement procedures, is awarded a subcontract on a prime
contract that does not carry a DBE goal, or even if there is a DBE goal, wins a subcontract from a
prime contractor that did not consider its DBE status in making the award (e.g., a prime contractor that
uses a strict low-bid system to award subcontracts).
Race-neutral means include, but are not limited to, the following:
I. Arranging solicitations, times for the presentation of bids, quantities, specifications, and
delivery schedules in ways that facilitate DBE, and other small businesses, participation
(e.g., unbundling large contracts to make them more accessible to small businesses,
requiring or encouraging prime contractors to subcontract portions of work that they
might otherwise perform with their own forces);
2. Providing assistance in overcoming limitations such as inability to obtain bonding or
financing (e.g., by such means as simplifying the bonding process, reducing bonding
requirements, eliminating the impact of surety costs from bids, and providing services
to help DBEs, and other small businesses, obtain bonding and financing);
3. Providing technical assistance and other services;
4. Carrying out information and communication programs on contracting procedures and
specific contract opportunities (e.g., ensuring the inclusion of DBEs, and other small
businesses, on recipient mailing lists of bidders; ensuring the dissemination to bidders
on prime contracts of lists of potential subcontractors; provision of information in
languages other than English, where appropriate);
5. Implementing a supportive services program to develop and improve immediate and
long-term business management, record keeping, and financial and accounting
capability for DBEs and other small businesses;
6. Providing services to help DBEs, and other small businesses, improve long-term
development, increase opportunities to participate in a variety of types of work, handle
increasingly significant projects, and achieve eventual self-sufficiency;
7. Establishing a program to assist new, start-up firms, particularly in fields in which DBE
participation has historically been low;
8. Ensuring distribution of your DBE directory, through print and electronic means, to the
widest feasible universe of potential prime contractors; and
9. Assisting DBEs, and other small businesses, to develop their capability to utilize
emerging technology and conduct business through electronic media.
March 4, 2009
'2009-83
Exhibit 9-A .
VI Raee Conscious Means of Meeting the Overall Statewide Annual DBE Goal (~26.51(d))
RECIPIENT must establish contract goals for Underutilized Disadvantaged Business Enterprises
( UDBEs ) to meet any portion of your AADPL you do not project being able to meet using race-
neutral means. UDBEs are limited to these certified DBEs that are owned and controlled by African
Americans, Native Americans, Women, and Asian Pacific Americans.
VII Quotas ( ~26.43 )
RECIPIENT will not use quotas or set-asides in any way in the administration of the local agency
component of the DBE Program Plan.
VIII DBE Liaison Officer ( DBELO ) ( ~26.2S )
RECIPIENT has designated a DBE Liaison Officer. The DBELO is responsible for implementing the
DBE Program Plan, as it pertains to the RECIPIENT, and ensures that the RECIPIENT is fully and
properly advised concerning DBE Program Plan matters. The DBELO has a staff of one professional
employee assigned to the DBE program and one support personnel who devote a portion of their time
to the program. The name, address, telephone number, electronic mail address, and an organization
chart displaying the DBELO's position in the organization are found in Attachment "A" to this
Agreement. This information will be updated annually and included on the DBE Annual Submittal
Form.
The DBELO is responsible for developing, implementing, and monitoring the RECIPIENT's
requirements of the DBE Program Plan in coordination with other appropriate officials. Duties and
responsibilities include the following:
1. Gathers and reports statistical data and other information as required.
2 Reviews third party contracts and purchase requisitions for compliance with this
program.
3. Works with all departments to determine projected Annual Anticipated DBE
Participation Level.
4. Ensures that bid notices and requests for proposals are made available to DBEs in a
timely manner.
5. Analyzes DBE participation and identifies ways to encourage participation through
race-neutral means.
6. Participates in pre-bid meetings.
7. Advises the CEOlgoverning body on DBE matters and DBE race-neutral issues.
8. Provides DBEs with information and recommends sources to assist in preparing bids,
obtaining bonding and insurance.
9. Plans and participates in DBE training seminars.
10. Provides outreach to DBEs and community organizations to fully advise them of
contracting opportunities,
March 4, 2009
'2009-83
Exhibit 9-A .
IX
Federal Financial Assistance Agreement Assurance ( ~26.13 )
RECIPIENT will sign the following assurance, applicable to and to be included in all DOT-assisted
contracts and their administration, as part of the program supplement agreement for each project.
The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and
performance of any DOT-assisted contract, or in the administration of its DBE Program, or the
requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49
CFR, Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts.
The recipient's DBE Program, as required by 49 CFR, Part 26 and as approved by DOT, is
incorporated by reference in this agreement. Implementation of this program is a legal obligation and
failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the
recipient of its failure to carry out its approved program, the Department may impose sanctions as
provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18
U.S.C, 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq. ). [Note-
this language is to be used verbatim, as it is stated in ~26.13(a). ]
X DBE Financial Institutions ( ~26.27 )
It is the policy of the RECIPIENT to investigate the full extent of services offered by financial
institutions owned and controlled by socially and economically disadvantaged individuals in the
community to make reasonable efforts to use these institutions, and to encourage prime contractors on
DOT -assisted contracts to make use of these institutions.
Information on the availability of such institutions can be obtained from the DBELO. The Caltrans'
Disadvantaged Business Enterprise Program may offer assistance to the DBELO.
XI
Direetory ( ~26.31 )
RECIPIENT will refer interested persons to the Unified Certification
available from the Caltrans Disadvantaged Business Enterprise
www.dot.ca.gov/hqlbep.
Program DBE directory
Program's website at
XII Required Contract Clauses ( ~~26,13, 26.29 )
RECIPIENT ensures that the following clauses or equivalent will be included in each DOT -assisted
prime contract:
A. CONTRACT ASSURANCE
The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or
sex in the performance of this contract. The contractor shall carry out applicable requirements of 49
CFR, Part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to
carry out these requirements is a material breach of this contract, which may result in the termination
of this contract or such other remedy, as recipient deems appropriate.
[Note - This language is to be used verbatim, as is stated in ~26,13(b), See Caltrans Sample Boiler Plate Contract
Documents on the Internet at www.dot.ca.govlhq/LocatPrograms under "Publications."]
March 4, 2009
2009-83
B. PROMPT PAYMENT
Exhibit 9-A
Promot Prol!:ress Payment to Subcontractors
The local agency shall require contractors and subcontractors to be timely paid as set forth in Section
7108.5 of the California Business and Professions Code concerning prompt payment to subcontractors.
The 10-days is applicable unless a longer period is agreed to in writing. Any delay or postponement of
payment over 30 days may take place only for good cause and with the agency's prior written
approval. Any violation of Section 7108.5 shall subject the violating contractor or subcontractor to the
penalties, sanctions, and other remedies of that Section. This requirement shall not be construed to
limit or impair any contractual, administrative, or judicial remedies, otherwise available to the
contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the
contractor, deficient subcontractor performance, and lor noncompliance by a subcontractor. This
clause applies to both DBE and non-DBE subcontractors.
Promot Payment of Withheld Funds to Subcontractors
The local agency shall ensure prompt and full payment of retainage from the prime contractor to the
subcontractor within thirty (30) days after the subcontractor's work is satisfactorily completed and
accepted. This shall be accompanied by including either (I), (2), or (3) of the following provisions
[local agency equivalent will need Caltrans approval] in their federal-aid contracts to ensure prompt
and full payment of retainage [withheld funds] to subcontractors in compliance with 49 CFR 26.29.
I. No retainage will be held by the agency from progress payments due to the prime contractor.
Prime contractors and subcontractors are prohibited from holding retainage from subcontractors. Any
delay or postponement of payment may take place only for good cause and with the agency's prior
written approval. Any violation of these provisions shall subject the violating contractor or
subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the
California Business and Professions Code. lbis requirernent shall not be construed to limit or impair
any contractual, administrative, or judicial remedies, otherwise available to the contractor or
subcontractor in the event of a dispute involving late payment or nonpayment by the contractor,
deficient subcontraetor performance, and/or noncompliance by a subcontractor. This clause applies to
both DBE and non-DBE subcontractors.
2. No retainage will be held by the agency from progress payments due the prime contractor.
Any retainage kept by the prime contractor or by a subcontractor must be paid in full to the earning
subcontractor in 30 days after the subcontractor's work is satisfactorily completed. Any delay or
postponement of payment may take place only for good cause and with the agency's prior written
approval. Any violation of these provisions shall subject the violating contractor or subcontractor to
the penalties, sanctions, and remedies specified in Section 7108.5 of the California Business and
Professions Code. This requirement shall not be construed to limit or impair any contractual,
administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event
of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor
performance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-
DBE subcontractors.
March 4, 2009
2009-83
Exhibit 9-A '
3. The agency shall hold retainage from the prime contractor and shall make prompt and regular
incremental acceptances of portions, as determined by the agency of the contract work and pay
retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor
shall return all monies withheld in retention from all subcontractors within 30 days after receiving
payment for work satisfactorily completed and accepted including incremental acceptances of portions
of the contract work by the agency. Any delay or postponement of payment may take place only for
good cause and with the agency's prior written approval. Any violation of these provisions shall
subject the violating prime contractor to the penalties, sanctions, and other remedies specified in
Section 7108.5 of the California Business and Professions Code. This requirement shall not be
construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available
to the contractor or subcontractor in the event of: a dispute involving late payment or nonpayment by
the contractor; deficient subcontractor performance; and/or noncompliance by a subcontractor. This
clause applies to both DBE and non-DBE subcontractors.
XIII Local Assistance Procedures Manual
The RECIPIENT will advertise, award and administer DOT-assisted contracts in accordance with the
most current published Local Assistance Procedures Manual (LAPM).
XIV Transit Vehicle Manufacturers (~26.49)
If FTA-assisted contracts will include transit vehicle procurements, RECIPIENT will require each
transit vehicle manufacturer, as a condition of being authorized to bid or propose on transit vehicle
procurements, to certify that it has complied with the requirements of 49 CFR Part 26, Section 49.
XV Bidders List ( ~26.11(c) )
The RECIPIENT will create and maintain a bidders list, consisting of information about all DBE and
non-DBE firms that bid or quote on its DOT-assisted contracts. The bidders list will include the name,
address, DBE/non-DBE status, age, and annual gross receipts of the firms.
XVI Reporting to the DLAE
RECIPIENT will promptly submit a copy of the Local Agency Proposer/Bidder UDBE Commitment
(Exhibit 10-01), "Local Agency Proposer UDBE Commitment (Consultant Contracts)", or Exhibit 15-
G(I), "Local Agency Bidder - UDBE Commitment (Construction Contracts), to the DLAE at the time
of award of the consultant or construction contracts.
RECIPIENT will promptly submit a copy of the Local Agency Proposer/Bidder DBE Information
(Exhibit 10-02), "Local Agency Proposer DBE Information (Consultant Contracts)", or Exhibit 15-
G2, "Local Agency Bidder DBE Information (Construction Contracts), to the DLAE at the time of
execution of the consultant or construction contracts.
March 4, 2009
2009-83
Exhibit 9-A '
RECIPIENT will promptly submit a copy of the Final Utilization of DBE participation to the DLAE
using Exhibit l7-F, "Final Report - Utilization of Disadvantaged Business Enterprises (DBE), First-
Tier Subcontractors" ofthe LAPM immediately upon completion of the contract for each consultant or
construction contract.
XVII Certification ( ~26.83(a) )
RECIPIENT ensures that only DBE firms currently certified by the California Unified Certification
Program will participate as DBEs on DOT-assisted contracts.
XVIII Confidentiality
RECIPIENT will safeguard from disclosure to third parties, information that may reasonably be
regarded as confidential business i formation consistent with federal, state, and local laws.
?
Date:
~~~?7
/
By
300 N. "D" Street, 3rd Floor
San Bernardino, CA 92418-000 I
E-mail: eisenbeiszJo@san-bernardino.ca.us
Phone Number: (909) 384-5203
This California Department of Transportation's Disadvantaged Business Enterprise Program
Implementation Agreement is accepted by:
W.
-----~~~------ ----- ---------
PATRICK H
Local Assistance En eer (DLAE)
Caltrans District 8
Date: _:i~2. ~#-_L______
Distribution: (1) Original- DLAE
( 2 ) Signed copy by the DLAE - Local Agency
(Updated; March 4. 2009 )
March 4, 2009
. .
2009-83
Attachment "A"
to Exhibit 9-A
ORGANIZATIONAL CHART
CITY OF SAN BERNARDINO DBE PROGRAM
OlY OF SAN BERNARDINO
MAYOR AND COMMON COUNCIL
CITY MANAGER
Mark Weinberg
ASSIST. CITY MANAGER
Lori Sassoon
DIRECTOR OF DEVELOPMENT DIRECTOR OF HUMAN RESOURCES
SERVICES EQUAL EMPLOYMENT OFFICER
Valerie Ross Linnea Livine:ston
CITY ENGINEER
DBE LIAISON OFFICER
Robert Eisenbeisz
March 4, 2009