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ORJG'~AL
CITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION
File No. 6.05-06
Subject: Resolution adopting the Caltrans "Race-
Neutral" Disadvantaged Business
Enterprise (DBE) Program, effective May
1,2006, and the Annual Anticipated DBE
Participation Level (AADPL) for Federal
financial assisted projects effective for
FFY 2006/07
MCC Date: July 10,2006
From: Valerie C. Ross, Director
Dept: Development Services
Date: June 20, 2006
Synopsis of Previous Council Action:
04/19/01 Adopted Resolution No. 2001-69 establishing a Disadvantaged Business Enterprise
(DBE) program and DBE Goals for FY 2000-01 of 13%
10/18/04 Adopted Resolution No. 2004-330 revising the Disadvantaged Business Enterprise
(DBE) program and DBE Goals for FY 2004-05 of 6%
Recommended Motion:
Adopt Resolution
~u.R~
Valerie C. Ross, Development Services Director
Contact person:
Mark Lancaster, City Engineer
Phone:
3305
Supporting data attached: Staff Report, Resolution, DBE Submittals
Ward:
All
FUNDING REQUIREMENTS: Amount: N/A
Source: (Acet. No.) N/A
Acct. Description:
Finance:
Council Notes:
RrSD. JDD0~:J.3~
Agenda Item No. 1(,
7/IO/OlP
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subject:
Resolution of the City of San Bernardino adopting the State of California, Department of
Transportation ( Caltrans ) "Race-Neutral" Disadvantaged Business Enterprise (DBE) Program
effective May 1, 2006, and the City of San Bernardino Annual Anticipated DBE Participation
Levels (AADPL) for Federal financial assisted projects, effective for the Federal Fiscal Year
2006/2007.
Background:
As a condition of Federal financial assistance pursuant to revised regulations set 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
Federal Highway Administration (FHW A) assisted contracts. In accordance with these
regulations, the City has developed, and CALTRANS has reviewed and approved, a previous
DBE Program that was initially adopted by the Mayor and Common Council by Resolution No.
2000-69. The City of San Bernardino has continued to provide CALTRANS Local Assistance
with established Overall Annual DBE Goals every Federal Fiscal Year (FFY) hence in order to
ensure full compliance with relevant regulatory requirements.
Due to changes in City personnel, it was necessary to revise the Disadvantaged Business
Enterprise (DBE) program by assigning a new DBE Liaison Officer (DBELO), Mark Lancaster,
the City Engineer and Deputy Director of the Development Services Department. This, and the
reduction of the Annual DBE goal from 13% to 6% in 2004-05 ( due to the sharp decline in
established DBE firms in San Bernardino County and the increase in types of work categories
involved in federally assisted projects) was adopted by the Mayor and Common Council by
Resolution No. 2004-330.
The City of San Bernardino's current program for FFY 2005/2006, has a goal of 5% and
incorporates both race-neutral (race and gender neutral) and race-conscious (race and gender
conscious) methods of meeting DBE goals.
On May 9,2005, a Ninth Circuit Court of Appeals ruling in the State of Washington ( Western
States Paving Company vs. Washington State Department of Transportation ), established new
evidentiary standards necessary to constitutionally support the use of race-conscious DBE
goals on Federal aid contracts. The Ninth Circuit Court of Appeals' decision is the controlling
authority for California and other Western States within its jurisdiction. In response, Caltrans
initiated a 45-day public comment period and study, including a 45-day extension, that ended on
March 20, 2006. Upon review of the public comment, studies and written evidence, Caltrans and
the Federal Highway Administration (FHW A) concurred that the evidence of discrimination in
California in the transportation industry was insufficient, at this time, to support continued use of
race-conscious measures, per 49 Code of Federal Regulations (CFR), Part 26. Caltrans will
contract to undertake a Federally required disparity study. The results of this study will not be
available until 2007, at the earliest.
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CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
STAFF REPORT - Continued
In the interim, all pending Federally assisted project contracts not "executed" as of May I, 2006
must be administrated and contracted in compliance with the new solely "race-neutral" methods,
or lose Federal financial assistance. There is no grace period. The City of San Bernardino, a
local agency, is required to adopt the Caltrans Race-Neutral DBE Program or lose committed
Federal funds. Race-neutral methods identified in 49 CFR 26.51(b) include unbundling of
contracts, technical assistance, capital and bonding assistance and small business development
programs. Race-conscious methods of contract required "Good Faith Efforts" worksheet and
"individual contact" DBE participation goal amounts do not apply in the solely race-neutral
program.
Per the requirements of the "EXHillIT 9A, DBE Race-Neutral Implementation Agreement", the
City's Organizational Chart with contact information for the designated DBE Liaison Officer is
included in the attached "ATTACHMENT A" to "EXHillIT 9B, Local Agency DBE Submittal
Form".
The City of San Bernardino has established an Annual Anticipated DBE Participation Level
of5% in FHWA-assisted contracts for the Federal Fiscal Year 2006/2007. This anticipated
percentage was developed utilizing the Federal goal-setting methodology that is described in
detail in the attached "ATTACHMENT B" to "EXHillIT 9B, Local Agency DBE Submittal
Form ". Briefly, the annual percentage above was obtained by identifying the types of work
categories involved in the federally-assisted projects for the coming 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 is repeated
annually to maintain relevancy to local market conditions and factors impacting DBE
availability.
Financial Impact:
There is no financial impact to the City.
Recommendation:
Adopt Resolution.
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ADOPTING THE CALTRANS RACE-NEUTRAL DISADVANTAGED
BUSINESS ENTERPRISE (DBE) PROGRAM, EFFECTIVE MAY 1, 2006, AND THE
CITY OF SAN BERNARDINO ANNUAL ANTICIPATED DBE PARTICIPATION
LEVEL (AADPL) SUBMITTAL FOR FEDERAL FINANCIAL ASSISTANCE
PROJECTS, EFFECTIVE FOR FEDERAL FISCAL YEAR 2006/2007, AND
AUTHORIZING THE CITY ENGINEER TO EXECUTE THE DISADVANTAGED
BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENTATION AGREEMENT.
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 Federal Department of Transportation funds; and.
WHEREAS, effective May I, 2006, Local Agencies cannot continue with their existing
DBE Program, but must adopt the State of California, Department of Transportation (Caltrans)
DBE Program to be eligible for Federal funds; and
WHEREAS, the City of San Bernardino intends to be a sub-recipient of Federal
Department of Transportation funds;
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
1. The City of San Bernardino hereby adopts the Caltrans Race-Neutral DBE Program,
effective May I, 2006, and the City Engineer is hereby authorized to execute the
"Disadvantaged Business Enterprise Race-Neutral Implementation Agreement," attached
hereto as "EXHIBIT 9A" and incorporated in this resolution; and
2. The City of San Bernardino establishes the Annual Anticipated DBE Participation
Level (ADDPL) for the period of October I, 2006 to September 30, 2007, which is attached
hereto as "EXHIBIT 9B", Local Agency DBE Annual Submittal Form; Attachment "A ",
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ADOPTING THE CALTRANS RACE-NEUTRAL DISADVANTAGED
BUSINESS ENTERPRISE (DBE) PROGRAM, EFFECTIVE MAY 1,2006, AND THE
CITY OF SAN BERNARDINO ANNUAL ANTICIPATED DBE PARTICIPATION
LEVEL (AADPL) SUBMITTAL FOR FEDERAL FINANCIAL ASSISTANCE
PROJECTS, EFFECTIVE FOR FEDERAL FISCAL YEAR 2006/2007, AND
AUTHORIZING THE CITY ENGINEER TO EXECUTE THE DISADVANTAGED
BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENT A TION AGREEMENT.
Organizational Chart; and Attachment "B ", Annual Anticipated DBE Participation Level
Methodology; and incorporated in this resolution:
Annual Anticipated DBE Participation Level (AADPL) = 5.0%
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ADOPTING THE CALTRANS RACE-NEUTRAL DISADVANTAGED
BUSINESS ENTERPRISE (DBE) PROGRAM, EFFECTIVE MAY 1, 2006, AND THE
CITY OF SAN BERNARDINO ANNUAL ANTICIPATED DBE PARTICIPATION
LEVEL (AADPL) SUBMITTAL FOR FEDERAL FINANCIAL ASSISTANCE
PROJECTS, EFFECTIVE FOR FEDERAL FISCAL YEAR 2006/2007, AND
AUTHORIZING THE CITY ENGINEER TO EXECUTE THE DISADVANTAGED
BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENTATION AGREEMENT.
7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
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meeting thereof, held on the
and Common Council of the City of San Bernardino at a
day of
, 2006, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
BAXTER
MC GINNIS
DERRY
KELLEY
JOHNSON
MC CAMMACK
City Clerk
,2006.
day of
The foregoing resolution is hereby approved this
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to Form:
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F \111 BIT 'l.\
Loc,ll AssisLll1ce Procedures ~..blllul
DISADV ANTAGED BUSINESS ENTERPRISE RACE-NEUTRAL
IMPLEMENT A nON AGREEMENT
For the City of San Bernardino, hereinafter referred to as "RECIPIENT."
Definition of Terms
The terms used in this agreement have the meanings defined in 49 CFR 9 26.5.
II OBJECTIVE/POLICY STATEMENT (g26/1. 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's 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 ofDBEs in DOT-assisted contracts.
. To assist the development of firms that can compete successfully in the market place outside
the DBE Program.
III Nondiscrimination (~26.7)
RECIPIENT will never exclude any person from participation in, deny any person the benefits of, or
otherwise discriminate against anyone in connection with the award and performance of any contract
covered by 49 CFR, Part 26 on the basis of race, color, sex, or national origin. In administering the
local agency components of the DBE Program Plan, the RECIPIENT will not, directly, or through
contractual or other arrangements, use criteria or methods of administration that have the effect of
defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with
respect to individuals of a particular race, color, sex, or national origin.
LLl\~)> 0 1
M~lY 1, 200()
I-XIIIBIT 'J,\
Loul A<;sisLlIlCC Procedures 1tllHI.ll
TV Annual DBE Submittal Form (~26.21)
The RECIPIENT will provide to the Caltrans' District Local Assistance Engineer (DLAE) a completed
DBE Annual Submittal Form 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.
V Race-Neutral Means of Meeting the Annual DBE Goal (~26.51)
RECIPIENT will assist Caltrans to achieve its Overall Statewide DBE Goal by race neutral means that
may include, but are not limited to the following:
I. Advertising solicitations, scheduling bidding periods and opening times, and packaging
quantities, specifications, and delivery schedules in ways that facilitate DBE and other small
business participation.
2. Providing assistance to DBE and small businesses in overcoming limitations such as inability to
obtain bonding or financing (e.g., by such means as simplifYing the bonding process, reducing
bonding requirements, and providing services to help DBEs and other small businesses obtain
bonding and financing).
3. Providing technical assistance and other services to DBE and small businesses.
4. Providing 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 including DBE's and small businesses; providing the
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 kinds 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 been historically low.
8. Assisting DBEs and other small businesses to develop their capability to utilize emerging
technology and conduct business through electronic media.
9. Implementing or developing a mentor-protege program.
II P :(,-CI
Me\)" 1, 2006
LXHTBn 'lA
Locll Assistance Procedures i\.hnual
VI 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.
VII DRE Liaison Officer (DRELO) (~26.25)
RECIPIENT has designated a ORE 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 OBELO's position in the organization are found in Attachment "A" to "9B, Local
Agency DBE Annual Submittal Form". 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 OBE Program Plan 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 determine projected Annual Anticipated OBE Participation
Level.
4. Ensures that bid notices and requests for proposals are made available to OBEs in a timely
manner.
5. Analyzes DBE participation and identifies ways to encourage participation through race-neutral
means.
6. Participates in pre-bid meetings.
7. Advises the CEO/governing body on DBE matters and OBE 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.
1.1.P 86-81
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L()C<ll AssisLlIlce Procedures ~lHll.ul
VIII 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 ofthe 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 S26.13(a).]
IX 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.
X Directory (~26.31)
RECIPIENT will refer interested persons to the Unified Certification Program DBE directory available
from the Caltrans Disadvantaged Business Enterprise Program's website at www.dot.ca.gov/hq/hep.
XI 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 S26.13(b). See Caltrans Sample Boiler
Plate Contract Documents on the Internet at www.dot.ca.gov/hq/LocalPrograms under "Publications."]
III' 8('-C I
M.1Y L 2006
E XHlBIT 0.\
LOLal A'isisL111CC Procedures .~vbl1lL,11
B. PROMPT PAYMENT
Pro mot Prol!ress Payment to Subcontractors
A prime contractor or subcontractor shall pay to any subcontractor not later than 1 a-days of receipt
of each progress payment, in accordance with the provision in Section 7108.5 of the California
Business and Professions Code concerning prompt payment to subcontractors. The I a-days is
applicable unless a longer period is agreed to in writing. Any delay or postponement of payment
over 30-days may take place only for good cause and with the agency's prior written approvaL
Any violation of Section 7108.5 shall subject the violating contractor or subcontractor to the
penalties, sanctions, and other remedies of that Section. This requirement shall not be construed to
limit or impair any contractual, administrative, or judicial remedies, otherwise available to the
contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the
contractor, deficient subcontractor performance, and/or noncompliance by a subcontractor. This
clause applies to both DBE and non-DBE subcontractors.
Promot Payment of Withheld Funds to Subcontractors
The local agency shall include 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 retain age [withheld funds] to subcontractors in compliance with 49 CFR 26.29.
1. No retainage will be held by the agency from progress payments due to the prime contractor.
Prime contractors and subcontractors are prohibited from holding retainage from
subcontractors. Any delay or postponement of payment may take place only for good cause and
with the agency's prior written approvaL Any violation of these provisions shall subject the
violating contractor or subcontractor to the penalties, sanctions, and other remedies specified in
Section 7108.5 of the California Business and Professions Code. This requirement shall not be
construed to limit or impair any contractual, administrative, or judicial remedies, otherwise
available to the contractor or subcontractor in the event of a dispute involving late payment or
nonpayment by the contractor, deficient subcontractor perfonnance, 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-ays 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 perfonnance, and/or noncompliance by a subcontractor.
This clause applies to both DBE and non-DBE subcontractors.
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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 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.
XIV 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).
XV Bidders List (~26.11)
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 Bidder-DBE Information (Exhibit 15-G
or Exhibit 10-0 of the LAPM) to the DLAE at the time of execution of consultant or construction
contract award.
RECIPIENT will promptly submit a copy of the Final Utilization of DBE participation to the DLAE
using Exhibit 17-F of the 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.
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Loc,] Assistance Procedures I'vbnu<ll
XVIII Confidentiality
RECIPIENT will safeguard from disclosure to third parties, information that may reasonably be regarded as
confidential business information consistent with federal, state, and local laws.
Date:
MARK LANCASTER
City Engineer / Deputy Director of Development Services
DBE Liaison Officer (DBELO)
300 N. "0" Street, 3rd Floor
San Bernardino, CA 92418-000 I
E-mail: [ancaster_ma@ci.san-bernardino.ca.us
Phone Number: (909) 384-5125
This California Department of Transportation's Disadvantaged Business Enterprise Program Plan
Implementation Agreement is accepted by:
Date:
SEAN YEUNG
Local Assistance Engineer (0 LAE)
Caltrans District 8
Distribution: (I) Original -DLAE
(2) Copy-local agency after signing by OLAE
DBE Race-neutral Implementation Agreement for Local Agencies (05/01/06)
l.LP ::h-D 1
!vby 1, 2J06
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LOCi!! Assistance [)roccdurcs \1allual
Exhibit 9-B Local Agency DBE Annual Submittal Form
TO: CALTRANS DISTRICT 8
District Local Assistance Engineer
The amount of the Annual Anticipated DBE Participation Level (AADPL) and methodology are presented
herein, in accordance with Title 49 of the Code of Federal Regulations, Part 26, and the State of California,
Department of Transportation Disadvantaged Business Enterprise (DBE) Program Plan.
The CITY OF SAN BERNARDINO, submits our AADPL information. We have established an AADPL
of ..2- % for the Federal Fiscal Year 2006 /2007, beginning on October 1, 2006, and ending on September
30. 2007.
Methodologv
See ATIAa-IMENT "B" to this document.
Disadvantaged Business Enterprise Liaison Officer (DBELO):
The DBE Liaison Officer for the coming Federal Fiscal Year is:
Mark Lancaster, City Engineer / Deputy Director of Development Services
300 N. "0" Street, rd Floor
San Bernardino, CA 924 I 8-000 1
Phone Number: (909) 384-5125 Fax: (909) 384-5155
E-mail: lancaster_ma@ci.san-bernardino.ca.us
Prompt Pay
Federal regulation (49 CFR 26.29) requires one of three methods be used in federal-aid contracts to ensure
prompt and full payment of any retainage, kept by the prime contractor or subcontractor, to a subcontractor.
Attached is a listing of the three methods, on which the City of San Bernardino has designated method of prompt
payment provision that will be used.
Submitted by:
Date:
MARK LANCASTER
City Engineer / Deputy Director of Development Services
DBE Liaison Officer (DBELO)
Reviewed by Caltrans:
Date:
SEAN YEUNG
Local Assistance Engineer (DLAE)
Caltrans District 8
Distribution: (I) Original-DLAE DBE Annual Submittal Form (05/01/06)
(2) Copy-local agency after signing by DLAE
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L.ocal A~~i~tallCL' Proc~durl':-; :'\latlLltll
(Attachment)
Prompt Payment of Withheld Funds to Subcontractors
Federal regulation (49 CFR 26.29) requires one of the following three methods be used in federal-aid
contracts to ensure prompt and full payment of any retainage kept by the prime contractor or subcontractor
to a subcontractor.
Please check the box of the method chosen by the local agency to ensure prompt and full payment of any
retainage.
L No retainage will be held by the agency from progress payments due to the prime contractor.
Primecontractors and subcontractors are prohibited from holding retainage from subcontractors.
Any delay or postponement of payment may take place only for good cause and with the agency's
prior written approval. Any violation of these provisions shall subject the violating contractor or
subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the
California Business and Professions Code. This requirement shall not be construed to limit or
impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or
subcontractor in the event of a dispute involving late payment or nonpayment by the contractor,
deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause applies
to both DBE and non-DBE subcontractors
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 3D-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.
01 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 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.
LPP J(,.J 1
lvby 1, .2C8h
EXHIBIT 9B
Attachment "A"
ORGANIZATIONAL CHART
CITY OF SAN BERNARDINO
DBE PROGRAM
CITY OF SAN BERNARDINO
MAYOR AND COMMON COUNCIL
I
CITY MANAGER
Fred Wilson
DIRECTOR OF DEVELOPMENT DIRECTOR OF HUMAN RESOURCES
SERVICES EQUAL EMPLOYMENT OFFICER
Valerie Ross Linnea Livingston
CITY ENGINEER
DBE LIAISON OFFICER
Mark Lancaster
300 N. "D" Street, )'" Floor
San Bernardino, CA 92418-0001
Phone: (909) 384-5125 Fax: (909) 384-5155
E-mail: lancaster _ ma@ci.san-bernardino.ca.us
IV]> .=Jl-.:l
M_l\ Y 1, 28Gb
City of San Bernardino
AADPL
EXHIBIT 9B
Attachment "B"
CITY OF SAN BERNARDINO
ANNUAL ANTICIPATED
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
PARTICIPATION LEVEL
METHODOLOGY
FOR
FEDERAL FISCAL YEAR (FFY) 2006/2007
( October 1,2006 to September 30,2007 )
INTRODUCTION:
An overall Annual Anticipated DBE Participation Level (AADPL) and methodology is established for
DBE participation in City of San Bernardino's FY 2006/2007 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, effective May 1, 2006. The
recommended overall Anticipated DBE Participation Level (AADPL) for contracts assisted by DOT
is 5%. This goal identifies the relative availability of DBEs based on evidence of ready, willing
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 participation level using entirely race-
neutral measures.
I. DOT ASSISTED CONTRACTING PROGRAM FOR FFY 2006/07
Table I 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 2006/07, as follows:
TABLE I
Proiect Type
Signalization
Street Construction
City of San Bernardino
AADPL
EXHIBIT 9B
Attachment "B"
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 2002 Census County Business Patterns
database, North American Industry Classification System (NAICS) work category codes utilized
are also presented, as follows:
TABLE 2
PRIMARY WORK CAL TRANS 2002 NAICS
CATEGORY WORK CATEGORY CATEGORY
DESCRIPTION CODES (I997 NAICS)
CONSTRUCTION:
Highway, Street & Bridge C1522, C153l, C160l, C390l, 237310
Construction C39l0,C5620,C8405 (234//; 2352/ )
Poured Concrete 238110
Foundation & Structural C5ll0, C730l
Contractors (2357/ )
Electrical Contractors C8602, C8608 238210
(2353/ )
Site Preparation Contractors C160l 238910
( 23499 )
PROFESSIONAL SERVICES:
Engineering Services C8703, C8720 541330
( No Change)
Geophysical Surveying C8760 541360
& Manning Services ( No Change)
Other Scientific & Technical C8700 541690
Manning Services ( No Change)
All Other Support Services 561990
-- (No Chon!!e )
II. AADPL - METHODOLOGY
Step I: Determination of a Base Figure (26.45)
To determine a Base Figure of relative availability of DBEs, 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 DBE Directory of Certified Firms within the two primary work
categories as its numerator and the 2002 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.
City of San Bernardino
AADPL
EXHIBIT 9B
Attachment "B"
To derive the relative availability of DBEs for each major work category, the City divided the
numerator I 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
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 Construction*) +
CBPs in Construction**
(DBEs in Professional Services*)
CBPs in Professional Services**
Base Figure = [ ill2 + ill J
807 309
Base Figure = [0.04585 + 0'00647J
Base Figure ~ (0.05232) 100 ~ 5.232 ~ 5%***
* For detailed listing of all Caltrans Work Categories grouped in each major category. refer to the
City's Regional AADPL Analysis for FFY 2006/2007, Appendix J.
** For detailed listing of all NAICs Work Codes grouped in each major category, refer to the
City's Regional AADPL Analysisfor FFY 2006/2007, Appendix II.
*** Rounded to the nearest whole number.
Step II: Adjustment of the Base Figure
The Base Figure of 5% 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 participation level setting methodology. Therefore, the resultant Base Figure
remains 5%.
\ Numerator represents all available established DRE firms within San Bernardino County per Caltrans List of DBE Certified Finns.
2 Denominator represents all available established firms within San Bernardino County per 2002 Census-County Business Patterns.
City of San Bernardino
AADPL
EXHIBIT 9B
Attachment "B"
III. OVERALL ANNUAL ANTICIPATED DBE PARTICIPATION LEVEL
ANALYSIS FOR FFY 200612007 AND PROJECTION OF
RACE-NEUTRAL PARTICIPATION
The Overall Annual ( FFY 2006/2007 ) Anticipated DBE Participation Level (AADPL) for the
City of San Bernardino's DOT-assisted contracts is 5%. The Overall AADPL 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 perform on
the City of San Bernardino's DOT-assisted contracts. The overall AADPL reflects a determination
of the level of DBE participation, which would be expected absent the effects of discrimination.
The City of San Bernardino projects to meet the full 5% AADPL utilizing race-neutral
methods, including making efforts to encourage participation by prime contractors and
assuring that bidding and contract requirements facilitate participation by DBEs and other
small businesses in conformance with new regulatory requirements.
IV. PUBLIC PARTICIPATION AND FACILITATION
This AADPL 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 AADPL for the FFY 2006/2007 DOT-assisted contracts. Such notice
will inform the public that the proposed annual anticipated DBE participation level and its rationale
will be available for inspection at the City of San Bernardino's Public Works Division, on the 3'd
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 anticipated annual participation
level analysis for 45 days from the date of the Public Notice. The public participation provisions
will be fully satisfied prior to submitting the City of San Bernardino's Overall Annual Anticipated
DBE Participation Level (AADPL) to Caltrans for final review and approval.
City of San Bernardino
AADPL
EXHIBIT 9B
Attachment "B"
CITY OF SAN BERNARDINO
ANNUAL ANTICIPATED DBE PARTICIPATION LEVEL ( AADPL )
ANALYSIS FOR FFY 2006/2007 APPENDIX I
IESTABLlSHMENT OF THE NUMERATOR:
# OF ESTABLISHED DBE FIRMS IN SAN BERNARDINO COUNTY1
2002 NAICS CODE:
S.B. COUNTY ZIP CODES
917 922 923 924 935 TOTAL
237310 HIGHWAY, STREET & BRIDGE CONSTRUCTION
( 1997 NAICS ~ 23411 )
Cl522 Reset, Adjust Roadway Items 2 0 0 0 3
CI531 Plane Asphalt Concrete 2 0 0 0 3
C390l Asphalt Concrete 2 0 0 0 3
C3910 Paving Asphalt 2 0 0 0 3
C5620 Roadside Sign 2 0 0 0 3
( 1997 NAICS ~ 23521 )
C8405 Thermoplastic Traffic Stripe & Marking 0 0 0 0
238110 POURED CONCRETE FOUNDATION
& STRUCTURAL CONTRACTORS
( 1997 NAICS ~ 23571 )
C5ll0 Concrete Surface Finish I 0 2 0 4
C7301 Concrete Curb & Sidewalk - Misc. I 0 2 0 4
238210 ELECTRICAL CONTRACTORS
( 1997 NAICS ~ 23531 )
C8602 Signal & Lighting 4 0 0 0 5
C8608 Detector 4 0 0 0 5
238910 SITE PREPARATION CONTRACTORS
( 1997 NAICS = 23499)
C160l Clearing & Grubbing 2 0 0 0 ---.J
CONSTRUCTION TOTALS 37
541330 ENGINEERING SERVICES
C8703 Traffic Engineer 0 0 0 0 I
C8720 Civil Engineering 0 0 0 0 1
541360 GEOPHYSICAL SURVEYING & MAPPING SERVICES
C8760 Surveyor 0 0 0 0 0 0
541690 OTHER SCIENTIFIC & TECHNICAL
CONSULTING SERVICES
C8700 Consultant 0 0 0 0 0 0
561990 ALL OTHER SUPPORT SERVICES
Flagging (i.e., Traffic Control) Services 0 0 0 0 0 ~
PROFESSIONAL SERVICES TOTALS 2
I DATA SOURCE: Caltrans List afDBE Certified Firms
City of San Bernardino
AADPL
EXHIBIT 98
Attachment "B"
CITY OF SAN BERNARDINO
ANNUAL ANTICIPATED DBE PARTICIPATION
ANALYSIS FOR FFY 2006/2007
LEVEL ( AADPL )
APPENDIX II
I ESTABLISHMENT OF THE DENOMINATOR: I
# OF ESTABLISHED FIRMS IN SAN BERNARDINO COUNTY1
CONSTRUCTION:
2002 (1997)
NAICS CODE
237310
(23411)
(23521)
238110
(23571)
238210
(23531)
238910
(23499)
NAICS DESCRIPTION
HIGHWAY, STREET & BRIDGE CONSTRUCTION
(HIGHWAY & STREET CONSTRUCTION)
(PAINTING & WALL COVERING CONTACTORS)
65
183
POURED CONCRETE FOUNDATION
& STRUCTURE CONTRACTORS
(CONCRETE CONTRACTORS)
ELECTRICAL CONTRACTORS
(ELECTRICAL CONTRACTORS)
165
314
SITE PREPARATION CONTRACTORS
(ALL OTHER HEAVY CONSTRUCTION)
TOTAL ESTABLISHED FIRMS
80
807
PROFESSIONAL SERVICES:
2002
NAICS CODE
54133
54136
54169
56199
NAICS DESRIPTION
ENGINEERING SERVICES 212
GEOPHYSICAL SURVEYING & MAPPING SERVICES 1
OTHER SCIENTIFIC & TECHNICAL CONSUL lING SERVICES 44
ALL OTHER SUPPORT SERVICES 52
TOTAL NUMBER OF FIRMS
309
I OAT A SOURCE: U.S. Census Bureau: 2002 County Business Patterns (NAICS)