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Home My WebLink About11-Development Services e e e CITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Resolution adopting Amendment No. One to Caltrans "Race-Neutral" Disadvantaged Business Enterprise (DBE) Program, modifying the Race-Neutral Measures section to conform with 49 CFR, Part 26.51, per Caltrans Local Assistance LPP 06-06, dated November 14, 2006 MCC Date: February 5, 2007 Subject: Dept: Development Services Date: January 11,2007 File No. 6.05-06 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 of6% 07/10/06 Adopted Resolution No. 2006-239 adopting the Caltrans Disadvantaged Business Enterprise (DBE) program and the City's DBE AADPL for FY 2006-07 of 5% Recommended Motion: Adopt Resolution. Yd1MV(;'~ Valerie C. Ross Contact person: Mark Lancaster, City Engineer Phone: 3305 Supporting data attached: Staff Report, Resolution, Caltrans Notice, Amendment Ward: All FUNDING REQUIREMENTS:. Amount: NIA Source: (Ace!. No.) NIA Acct. Description: Finance: Council Notes: Agenda Item No. JJ :J./ 5/ lJ1 e e e CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: Resolution of the City of San Bernardino adopting Amendment No. One to the State of California, Department of Transportation (CALTRANS ) "Race-Neutral" Disadvantaged Business Enterprise (DB E) Implementation Agreement, per the Caltrans Division of Local Assistance Notice to Local Agencies, dated November 15,2006. 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) since 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 (DB E) program by assigning a new DBE Liaison Officer (DBELO), Mark Lancaster, the City Engineer and Deputy Director of the Development Services Depar1;ment. 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 program for FFY 2005/2006, had a goal of 5% and incorporated 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 that time, to support continued use of race-conscious measures, per 49 Code of Federal Regulations (CFR), Part 26. 2 e e e CITY OF SAN BERNARDINO REOUEST FOR COUNCIL ACTION STAFF REPORT - Continued 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. The City of San Bernardino, a local agency, was 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. At the joint-regular meeting of the Mayor and Common Council on July 10, 2006, Council adopted Resolution No. 239, adopting the CAL TRANS Disadvantaged Business Enterprise (DBE) Race- Neutral Implementation Agreement, that accepted the CALTRANS DBE Program as the City's DBE Program. In August of 2006, the CAL TRANS Civil Rights Program made technical changes' to the CALTRANS Disadvantaged Business Enterprise (DBE) Program Plan. These technical changes consist of modifying the Race-Neutral Measures section of the CALTRANS DBE Program Plan to read identical to 49 CFR, Part 26.51 (b), (I) - (9). To conform with the changes, the Division of Local Assistance issued Local Programs Procedure (LPP), LPP 06-06, "Deletion of DBE Availability Advisories and other Technical Changes ", on November 14, 2006. In a notice to local agencies on November IS, 2006 ( see attached ), the Division of Local Assistance gave the City the option of executing an amendment to the Caltrans DBE Race-Neutral Implementation Agreement, or executing a new Agreement to adopt the revised Program. The attached "Amendment No. One To The Disadvantaged Business Enterprise (DBE) Race-Neutral Implementation Agreement" will bring the City into compliance with the current CALTRANS DBE Program requirements. Financial Impact: There is no financial impact to the City. Recommendation: Adopt Resolution. 3 STA TF. OF CAUFORMA 81J~lNE.l\S TRANSPORT A nON AND HOUSING AGENCY ARNOW SCHW.lJtZENEG(jER Gmemar DEPARTMENT OF TRANSPORTATION DIVISION OF LOCAL ASSISTANCE - M.S. 1 1120 N STREET _. BOX 942874 RAMENTO. CA 94274-0001 ONE (916) 653.1776 FAX (916) 654.1904 ITY (916) 653.4086 e e . Flex yo"r ptlWer! Be enerty eJlicient! November 15,2006 To: PUBLIC WORKS DIRECTORS, CITY ENGINEERS, RTP As, and MPOs Re: Amendment to the California Department of Transportation Disadvantaged Business Enterprise Program Implementation Agreement The California Department of Transportation (Caltrans) Civil Rights Program has made technical changes to the Caltrans Disadvantaged Business Enterprise (DBE) Program Plan. These technical changes consist of modifying the Race-Neutral Measures section of the Caltrans DBE Program Plan to read identically to 49 CPR Part 26.51 (b), (I) - (9). For purposes of maintaining consistency with the Caltrans DBE Program Plan, the Division of Local Assistance has made the same technical changes to Chapter 9 of the Local Assistance Procedures Manual (LAPM). A fonnal Local Programs Procedure (LPP), LPP 06-06: Deletion of DBE Availability Advisories and other Technical Changes, has been recently released. This LPP may be found on line at: http://www.do.ca.govlhqlLocaIProgramsllppllpplrl.htm These technical changes extend to the LAPM, Exhibit 9(a), the Caltrans DBE Race-Neutral Implementation Agreement (Agreement), and require that local agencies either: 1) execute an amendment to their existing Agreement; or 2) execute the updated Agreement (LAPM, Exhibit 9(a)) in the recently released LPP 06-06. The deadline is February I, 2007, to have either an amendment or a new Agreement executed. For your convenience, enclosed is a sample amendment. If you have any questions, please contact Patrice Carroll of my staff at (916) 653-9251. Sincerely, \~ ~ TERRY~OTT, Chief Division of Local Assistance re-' 1[7,'7.' r~;'i:'i7ic-'@ ., ." . '. , - D I \. ~.. '_.._' , '.. ' ...' 1(-/ i ~~.' '-~ '..'I.: I :.-. I Enclosure c: Olivia Fonseca, Deputy Director Civil Rights Angel Carrera, DBE Program Manager, Civil Rights '>!y ..:':.- Oh.-C!. ~ f'ic.>'AR i"t;:~' . :Ci:.~ "Caltrons improves mobility across California" e e e AMENDMENT TO THE DISADVANTAGED BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENTATION AGREEMENT For the City/County of to as "RECIPIENT.' . , hereinafter referred Background A. RECIPIENT executed the California Department of Transportation's Disadvantaged Business Enterprise Implementation Agreement (hereinafter referred to as Agreement) on as a condition of receiving federal-financial assistance. B. Due to the modification of the California Disadvantaged Business Enterprise Program Plan, the Agreement requires amending. C. This Amendment is the first amendment to the Agreement. The RECIPIENT agrees to amend their obligations in the existing Agreement and RECIPIENT agrees to keep, perform, and fulfill the promises, conditions and agreements below: Amendment I. . The Agreement is amended as follows: Section V: Race-Neutral Means of Meeting the Annual DBE Goal (~26.51) of the Agreement is hereby amended to read identically to the Federal Code of Regulations, 49 CFR, Part 26.51. No Other ChaD2e 2. Except as otherwise expressly provided in this Amendment, all of the terms and conditions of the Agreement remain unchanged and in full force and effect. I tit tit e DBE Race Neutral Implementation Agreement Page 2 By (Signature) Phone Number: (Print Name and Tille) ADMINISTERING AGENCY (Authorized Governing Body Representative) This Amendment to the California Department of Transportation's Disadvantaged Business Enterprise program Plan Implementation Agreement is accepted by: Date: (Signature ofDLAE) (Print Name ofDLAE) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ADOPTING AMENDMENT NO. ONE TO THE CAL TRANS DISADV ANT AGED BUSINESS ENTERPRISE (DBE) RACE-NEUTRAL IMPLEMENTATION PROGRAM 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 23 heretofore requires a Disadvantaged Business Enterprises (DBE) Program for recipients of Federal Department of Transportation funds; and. WHEREAS, the City of San Bernardino, in order to be eligible, adopted the California Department of Transportation's Disadvantaged Business Enterprise Race-Neutral Implementation Agreement ( hereafter "AGREEMENT" ), effective May 1,2006, pursuant to City Resolution No. 2006-239; and WHEREAS, effective November 15, 2006, the Division of Local Assistance has required that local agencies either execute an amendment to the existing AGREEMENT, or 16 17 18 19 November 14, 2006, to be eligible for Federal funds; and 20 21 22 23 execute a new updated Agreement reflecting the changes in Local Programs Procedure (LLP), LPP 06-06, "Deletion of DBE Availability Advisories and other Technical Changes", released 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 24 25 26 27 28 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: I. The City of San Bernardino hereby adopts "AMENDMENT NO. ONE TO THE DISADVANTAGED BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENTATION AGREEMENT", and the City Engineer is hereby authorized to execute said amendment, attached hereto and incorporated in this resolution as Exhibit A. No. II Jj 5'107 III 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ADOPTING AMENDMENT NO. ONE TO THE CAL TRANS DISADVANTAGED BUSINESS ENTERPRISE (DBE) RACE-NEUTRAL IMPLEMENTATION PROGRAM AGREEMENT FOR FEDERAL FINANCIAL ASSISTANCE PROJECTS. 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 ,2007, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA BAXTER BRINKER DERRY KELLEY JOHNSON MC CAMMACK City Clerk The foregoing resolution is hereby approved this day of ,2007. Patrick J. Morris, Mayor City of San Bernardino App.roved as to form ES F. PENMAN C' y Attorney Exhibit "A" AMENDMENT NO. ONE TO THE DISADV ANT AGED BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENT A nON AGREEMENT For the City of San Bernardino, hereinafter referred to as "RECIPIENT." Backl!round: A. RECIPIENT executed the California Department ofTransportation's Disadvantaged Business Enterprise Implementation Agreement ( hereinafter referred to as "AGREEMENT") on July 10,2006, per Resolution No. 2006-239, as a condition of receiving federal-financial assistance. B. Due to the modification of the California Disadvantaged Business Enterprise Program Plan the AGREEMENT requires amending. C. This Amendment is the first amendment to the AGREEMENT. The RECIPIENT agrees to amend their obligations in the existing AGREEMENT and RECIPIENT agrees to keep, perform, and fulfill the promises, conditions and agreements below: Amendment: I. The AGREEMENT is amended as follows: Section V: Race-Neutral Means of Meeting the Annual DBE Goal ( 926.51 ) of the AGREEMENT is hereby amended to read identically to the Federal Code of Regulations, 49 CFR, Part 26.51. No Other Chanl!e: 2. Except as otherwise expressly provided in this Amendment, all of the terms and conditions of the AGREEMENT remain unchanged and in full force and effect. I I I I I I I I I I I I I I I I I II I I I I I I I I I II I II I II I II II I II I II II I I II I II I II I II I I II I I II I II I I II I I II I II I I II I II I I I II I II I I I II II I II I II I III II I II III Rl'sp(lt1Sl' 10 ch~lnf,l'" 10 Cr\LTR_ANS DBE PR(X;RA~1 pCI' LLP ':'(,-Ch :'\()\','II,t..,., i !. ~'::>, Amendment to DBE Race-Neutral Implementation AGREEMENT Page 2 Acceptance: RECIPIENT: By 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: lancaster_ma@ci.san-bernardino.ca.us Phone Number: (909) 384-5125 This amendment to the California Department ofTransportation's Disadvantaged Business Enterprise Program Plan Implementation Agreement is accepted by: Date: SEAN YEUNG Local Assistance Engineer (DLAE) Caltrans District 8 l\.l'Sp( lll<;t: to ch,H1~cS to CA1TRANS DBE PRCX;l\:\\! per LLP :;6-06 l'\iovclllber 14, 2CC6