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CITY OF SAN BERNARDINO -REOUEST FOR COUNCIL AQ.~\J3 \ N A L
From: Valerie C. Ross, Director
Subject:
Resolution adopting the California
Department of Transportation (Caltrans)
Disadvantaged Business Enterprise (DBE)
Implementation Agreement to conform
with U.S. Department of Transportation
(USDOT), 49 CFR, Part 26 requirements.
Dept: Development Services
Date: April 2, 2009
File No. 6.05-06
MCC Date: April 20, 2009
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%
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%
02/05/07 Adopted Resolution No. 2007-35 approving 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.
Recommended Motion:
Adopt Resolution.
~C~
Valerie C. Ross
Contact person:
Robert Eisenbeisz, City Engineer
Phone:
5203
Supporting data attached: Staff Report, Resolution, Exhibit 9-A Ward: All
FUNDING REQUIREMENTS: Amount: N/A
Source: (Acct. No.) N/A
Acct. Description:
Finance:
Council Notes:
Key co 2L>o 9 - cP.:'3
Agenda Item No.
q
If.. 20..0'
CITY OF SAN BERNARDINO REOUEST FOR COUNCIL ACTION
STAFF REPORT
Subject:
Resolution adopting the California Department of Transportation (Caltrans) Disadvantaged
Business Enterprise (DBE) Implementation Agreement to conform with U.S. Department of
Transportation (US DOT), 49 CFR, Part 26 requirements.
Background:
The City received the attached letter from Caltrans dated March 4, 2009 providing guidelines for
implementation of a mandatory Race Conscious Disadvantaged Business (DB E) Program. Local
Agencies have until June 2, 2009 to implement the program. All contracts awarded after June 2,
2009 for projects receiving federal funds are required to include race conscious DBE
requirements.
In order to implement the new DBE program, it will be necessary for the City to adopt the
attached Exhibit 9-A "California Department of Transportation Disadvantaged Business
Enterprise Implementation Agreement". The Implementation Agreement appoints Robert
Eisenbeisz, City Engineer, as the City's DBE Liaison Officer (DBELO) and authorizes him to
sign the Agreement on behalf of the City.
The City could be subject to sanctions if the Implementation Agreement is not adopted and the
program implemented by June 2, 2009. Since the Metrolink Parking Structure project is expected
to begin construction after June 2, 2009, it will be subject to these new DBE requirements. The
request for authorization must be submitted by May 1,2009, so it is imperative that the City adopt
a Race Conscious DBE program in conformance with the new requirements.
Financial Impact:
There is no direct financial impact to the City; however, any state or federally funded project will
be subject to the new DBE program and its implementation will significantly increase the amount
of effort required by staff to establish goals, prepare bid documents, and verify contractor
compliance. These additional requirements will create an extra workload for staff.
Recommendation:
Adopt Resolution.
Attachments:
"I" - Letter from the California Department of Transportation (Caltrans) dated March 4,2009;
RE: Mandatory Race Conscious DBE Program.
2
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STAtE bF CA. IFORNIA BUSINFSS. TRANSPORTATION AND HOUSING AGENCY
~t"~
ARNO R G
, DEPARTMENT OF TRANSPORTATION
DIVISION OF LOCAL ASSISTANCE - M.S. 1
1120 N STREET
P. O. BOX 942874
SACRAMENTO, CA 94274-0001
PHONE (916)653-1776
FAX (9]6) 654-2409
T1Y 711
a
Flex yoUI' power!
Be eMrgy eJftcient!
March 4, 2009
TO: ALL CITIES AND COUNTIES IN CALIFORNIA
METROPOLITAN PLANNING ORGANIZA nONS
REGIONAL TRANSPORTATION PLANNING AGENCIES
Dear Directors:
Re: Mandatory Race Conscious DBE Program
The Federal Highway Administration (FHW A) has approved the California Department of
Transportation's 2009 Disadvantaged Business Enterprise (DBE) Annual Overall Goal.
FHW A's approval requires the immediate implementation of the new DBE Program that
includes a Race Conscious component (RC DBE Program). Effective immediately the California
Department of Transportation (Caltrans) and local agencies receiving federal-aid funds must
begin transitioning to the new RC DBE Program.
Transidon Period
Local agencies may have until June 2, 2009 to transition to the newly approved RC DBE
Program. This allows local agencies until June 2, 2009, to adopt and execute the new RC DBE
Program and allows projects authorized to proceed under the old Race Neutral (RN) DBE
program to proceed to contract award. As soon as possible but before June 2, 2009, local
agencies must adopt and execute a new California Department ofTranspartation DBE Program
Implementation Agreement (DBE Implementation Agreement). Upon execution of the new DBE
Implementation Agreement, local agencies shall proceed under the new RC DBE Program.
Under the new RC DBE Program, local agencies must incorporate the new race conscious
contract specifications into all federa1-aid consultant and construction contracts. These
specifications are incorporated in the new contract boilerplate language lefe.enced below.
Imoacts to Federal-Aid Projects
· ALL CONTRACTS AWARDED AFTER June 2, 2009 SHALL INCLUDE RC ODE
REQUIREMENTS (i.e. contract goals, good faith efforts).
· Any project that receives Authorlzadon to Proceed under the old RN ODE
requirements must award the contract by June 2, 2009.
· Any Authorizadon to Proceed received under the old RN ODE requirements that
does not meet the June 2, 2009 contract award deadUne, shall be re-evaluated.
"Co/tram Improvu mobUUy Geron Ca/ifonolo"
. Cities & Counties in California
MPOs
RTPAs
March 4, 2009
Page 2
Lm:al agencies must resubmit their projects to Caltrans for approval to ensure
compliance with the new RC DBE requiremeQts prior to bid opening.
Authorizations to Proceed will be withdrawn if projeets do not comply with the new
RC DBE requirements.
· Contracts awarded after June 2, 2009, without meeting the new RC DBE
requirements will be ineligible for federal funding.
· Local agencies' Requests for Authorization to Proceed for projeets under the old
RN DBE Program will continue to be received and processed subject to the
preceding conditions.
· In submitting Requests for Authorization to Prm:eed for projects under the old RN
DBE Program, the project sponson need to be mindful of the minimum advertising
period of three weeks, and the time it takes for bid opening and contract approval
by their governing bodies.
· Requests for Authorization to Prm:eed with the new RC DBE requirements may be
submitted for prm:essing and have funds obligated/authorized before the District
Local Assistance Engineer (DLAE) receives the new DBE Implementation
Agreements; however, projects shall not be awarded prior to the approval of the
new DBE Implementation Agreement by the DLAE.
· Existing federal-ald project contraeta awarded with race neutral requirements shali
continue under the old RN DBE Program.
Contract Goals Limited to UnderutiUzed Disadvantal!ed Business Enternrises (Ul)BEs)
Contract goals and the Good Faith Effort requirement are reinstated; however, they are limited to
Underutilized DBEs (UDBEs). The findings from the Caltrans Availability and Disparity Study
revealed statistically significant underutilization in four of the six groups presumed to be
disadvantaged as defined by the Code of Federal Regulations, 49 CFR Part 26. The four groups
are African American, Asian Pacific American, Native American and Women. Contract goals
will be limited to these four groups ofUDBEs. Use of the UDBEs above the contract goal and/or
use ofDBEs owned and controlled by Hispanic Males or Subcontinent Asian Males shall be
reported and counted toward the Race Neutral portion of the local agencies' overall Anticipated
Annual DBE Percentage Levels (AADPLs).
Old RN and New RC DBE Forms. Bollerolate SneciRcatlons
For contraeta that will be advertised and awarded under the old RN DBE Program, the
appropriate DBE forms will be available on the Local Assistance Website:
httn://www.dot.ca.20v/balLocalProlZl.lUlls/DBE CRLC.html
You may download the new DBE hnplementation Agreement and consultant and construction
contract boilerplate language from the Local Assistance website at:
httD://www.dot.ca.20v/balLocalPro2ramsl
"Cal""'" ImprovulrfOblllty oc,.., Ca/ifiJ17.I4"
. Cities & Counties in California
MPOs
RTPAs
March 4, 2009
Page 3
For specific guidance on federal-aid consultant and construction contracts and access to the new
ODE fonns, please refer to the enclosures addressing consultant contracts and construction
contracts.
Local AllutaDce ProcedlU'el Manual(LAPMl
The Division of Loca1 Assistance will be issuing the changes to the LAPM. Until the LAPM
changes are issued, the updated fonns, guidance, and Frequently Asked Questions are available
on the Caltrans, Division ofLoca1 Assistance (OLA) website:
htto://www.dot.ca.llOvlhalLoca1ProlZl.lllllS!
ABaual Aatieinated DBE Percentalle Leveu lAADPL)
Local agencies are not required to resubmit previously approved 2008/2009 AADPLs to include
segregated Race Conscious (RC) and Race Neutral (RN) components; however, contract goall
Ihan be ea1eulated and placed on an contraetl after the local agency has executed the new
DBE Impiementadon Agreement. The 200912010 AADPLs shall report segregated RC and
RN anticipated percentage level components. Guidance for AADPL calculation under the new
RC ODE Program is available at the Caltrans OLA website under "Announcements,"
If you have questions, please refer to the Frequently Asked Questions posted on the Caltrans,
OLA website: htto://www.dot.ca.llOvIhQ/Loca1Prolll.llllllslbefore contacting your OLAE.
sincere~
~;9' -
OENIX O. ANBIAH, Chief
Division ofLoca1 Assistance
Enclosures
c: Loca1 Agency ODE Liaison Officers
"CaItroM iIIIpnwu mohIHlyacrou CaIIfontIa-
..
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DIvIIioII of Local Aalatuce
Office of Proccdure8 Development 8Dd Training
EndGlure 1 &.
March 4, 2009 \.,
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Enclosure 1
Coosultant Contraets: Contracts awarded prior to June 2, 2009, whose
authorizations were granted prior to the adoption of the Race Conscious DBE
Implementation Agreement may follow the Race Neutral DBE Program. All
contracts awarded after June 2, 2009 must follow the Race Conscious DBE
Program and use the following new Race Conscious LAPM Exhibits currently
located on the Caltrans Local Assistance website under "Announcements."
· Exhibits 3-A, 3-B, or 3-C: Request to Proceed with Preliminary
Engineering, Right-of-Way, or Utility Relocation
. Exhibit 3-E: Request for Authorization to Proceed Data Sheet(s)
· Exhibit IO-C: Consultant Agreement Reviewers Checklist
. Exhibit 10-D: Consultant Agreement Outline
· Exhibit 10-1: Notice to BidderslProposers DBE Requirements and
Instructions
· Exhibit 10-J: Standard Agreement for Subcontractor/DBE Participation
· Exhibit 10-0(1): Local Agency Bidder/Proposer UDBE Commitment
(Consultant Contracts)
· Exhibit 10-0(2): Local Agency Bidder/Proposer DBE Commitment
(Consultant Contract)
· Exhibit 17-F: Final Report Utilization ofDBE, First-Tier Subcontractors
Pqe 1 oft
Fil_ 03-ll3.20091tr EDcIooure I.doc
...... by: [PCanoI1]
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Division of Loa) Alsiltuee
Office of Procedures Development and Training
Enelosure Z
!March 4, 2009
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Enclosure 2
Construction Contracts: Contracts to be advertised and awarded before the
execution of the new DBE Implementation Agreement and before June 2,2009,
may proceed to advertise and award using Race Neutral boilerplate specifications
and Race Neutral LAPM Exhibits 12-D, 15-A, 15-B, 15-G. 15-1, 15-L and 17-F.
All other contracts shall use the new Race Conscious boilerplate specifications
and the following new Race Conscious LAPM Exhibits currently located on the
Caltrans Local Assistance website under "Announcements:"
. Exhibit 3-D: Request for Authorization to Proceed with Construction
· Exhibit 3-E: Request for Authorization to Proceed Data Sheet(s)
. Exhibit 12-D: PS&E Checklist
. Exhibit 15-A: Local Agency Construction Contract Administration
Checklist
. Exhibit 15-B: Resident Engineer's Construction Contract Administration
Checklist
. Exhibit 15-0(1): Local Agency Bidder/Proposer UDBE Commitment
(Construction Contracts)
· Exhibit 15-0(2): Local Agency Bidder/Proposer DBE Commitment
(Construction Contracts)
. Exhibit 15-H: Good Faith Efforts Submittal
. Exhibit 15-1: Local Agency Bid Opening Checklist
· Exhibit 15-L: Local Agency Contract Award Checklist
· Exhibit 17-F: Final Report Utilization ofDBE, First-Tier Subcontractors
..... 1 of 1
Filename: 03.o3-20091tr Enciosuro 2.dcc
l'1q>amI by: [PCanuU)
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RESOLUTION NO.
tOfY
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ADOPTING THE CALIFORNIA DEPARTMENT OF
TRANSPORT A TION DISADV ANT AGED 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 of U. 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:
14 The California Department of Transportation Disadvantaged Business Enterprise
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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
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.
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20 The foregoing resolution is hereby approved this
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
meeting thereof, held on the
and Common Council of the City of San Bernardino at a
_day of
,2009, by the following vote, to wit:
Council Members:
NAYS
ABSTAIN
ABSENT
AYES
ESTRADA
BAXTER
BRINKER
SHORETT
KELLEY
JOHNSON
MC CAMMACK
City Clerk
day of
,2009.
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24 Approved as to form
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Patrick J. Morris, Mayor
City of San Bernardino
[:-;!libit 9-,\
CALIFORNIA DEPARTMENT OF TRANSPORTATION
DISADV ANT AGED BUSINESS ENTERPRISE
IMPLEMENT A TION 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 S 26.5.
II OBJECTIVE / POLICY STATEMENT ( ~2611. 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 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.
March 4, 2009
Exhibit 9.'\
IV Annual DBE Submittal Form ( ~26.21 )
The RECIPIENT will provide to the Caltrans District Local Assistance Engineer ( DLAE ) a
completed Local Agency DBE Annual Submittal Form ( Exhibit 9-B ) by June 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 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
Exhibit q.;-\
VI Race Conscious Means of Meeting the Overall Statewide Annual DBE Goal ( ~26.51(d) )
RECIPIENT must establish contract goals for Underutilized Disadvantaged Business Enterprises
( UDBEs ) to meet any portion of your AADPL you do not project being able to meet using race-
neutral means. UDBEs are limited to these certified DBEs that are owned and controlled by African
Americans, Native Americans, Women, and Asian Pacific Americans.
VII Quotas ( ~26.43 )
RECIPIENT will not use quotas or set-asides in any way in the administration of the local agency
component of the DBE Program Plan.
VlII DBE Liaison Officer ( DBELO ) ( ~26.25 )
RECIPIENT has designated a DBE Liaison Officer. The DBELO is responsible for implementing the
DBE Program Plan, as it pertains to the RECIPIENT, and ensures that the RECIPIENT is fully and
properly advised concerning DBE Program Plan matters. The DBELO has a staff of 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:
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 DBE
Participation Level.
4. Ensures that bid notices and requests for proposals are made available to DBEs in a
timely manner.
5. Analyzes DBE participation and identifies ways to encourage participation through
race-neutral means.
6. Participates in pre-bid meetings.
7. Advises the CEO/governing body on DBE matters and DBE race-neutral issues.
8. Provides DBEs with information and recommends sources to assist in preparing bids,
obtaining bonding and insurance.
9. Plans and participates in DBE training seminars.
10. Provides outreach to DBEs and community organizations to fully advise them of
contracting opportunities.
March 4, 2009
Exhibit q-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. IDOl 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). ]
X DBE Financial Institutions ( ~26.27 )
It is the policy of the RECIPIENT to investigate the full extent of services offered by financial
institutions owned and controlled by socially and economically disadvantaged individuals in the
community to make reasonable efforts to use these institutions, and to encourage prime contractors on
DOT -assisted contracts to make use of these institutions.
Information on the availability of such institutions can be obtained from the DBELO. The Caltrans'
Disadvantaged Business Enterprise Program may offer assistance to the DBELO.
XI
Directory ( ~26.31 )
RECIPIENT will refer interested persons to the Unified Certification
available from the Caltrans Disadvantaged Business Enterprise
www.dot.ca.gov/hq/bep.
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.govlhqlLocaIPrograms under "Publications."]
March 4, 2009
Exhibit 9-A
B. PROMPT PAYMENT
Prompt Proeress 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 lO-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.
Prompt Payment of Withheld Funds to Subcontractors
The local agency shall ensure prompt and full payment of retainage from the prime contractor to the
subcontractor within thirty (30) days after the subcontractor's work is satisfactorily completed and
accepted. This shall be accompanied by including either (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.
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. This requirement shall not be construed to limit or impair
any contractual, administrative, or judicial remedies, otherwise available to the contractor or
subcontractor in the event of a dispute involving late payment or nonpayment by the contractor,
deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause applies to
both DBE and non-DBE subcontractors.
2. No retainage will be held by the agency from progress payments due the prime contractor.
Any retainage kept by the prime contractor or by a subcontractor must be paid in full to the earning
subcontractor in 30 days after the subcontractor's work is satisfactorily completed. Any delay or
postponement of payment may take place only for good cause and with the agency's prior written
approval. Any violation of these provisions shall subject the violating contractor or subcontractor to
the penalties, sanctions, and remedies specified in Section 7108.5 of the California Business and
Professions Code. This requirement shall not be construed to limit or impair any contractual,
administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event
of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor
performance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-
DBE subcontractors.
March 4. 2009
Exhibit 9-:\
3. The agency shall hold retainage from the prime contractor and shall make prompt and regular
incremental acceptances of portions, as determined by the agency of the contract work and pay
retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor
shall return all monies withheld in retention from all subcontractors within 30 days after receiving
payment for work satisfactorily completed and accepted including incremental acceptances of portions
of the contract work by the agency. Any delay or postponement of payment may take place only for
good cause and with the agency's prior written approval. Any violation of these provisions shall
subject the violating prime contractor to the penalties, sanctions, and other remedies specified in
Section 7108.5 of the California Business and Professions Code. This requirement shall not be
construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available
to the contractor or subcontractor in the event of: a dispute involving late payment or nonpayment by
the contractor; deficient subcontractor performance; and/or noncompliance by a subcontractor. This
clause applies to both DBE and non-DBE subcontractors.
XIII Local Assistance Procedures Manual
The RECIPIENT will advertise, award and administer DOT-assisted contracts in accordance with the
most current published Local Assistance Procedures Manual (LAPM).
XIV Transit VehicIe Manufacturers ( ~26.49 )
If FT A-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-
0(1), "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-
02, "Local Agency Bidder DBE Information (Construction Contracts), to the DLAE at the time of
execution of the consultant or construction contracts.
March 4, 2009
Exhibit l)-A
RECIPIENT will promptly submit a copy of the Final Utilization of DBE participation to the DLAE
using Exhibit 17-F, "Final Report - Utilization of Disadvantaged Business Enterprises (DBE), First-
Tier Subcontractors" of the LAPM immediately upon completion of the contract for each consultant or
construction contract.
XVII Certification ( ~26.83(a) )
RECIPIENT ensures that only DBE firms currently certified by the California Unified Certification
Program will participate as DBEs on DOT-assisted contracts.
XVIII Confidentiality
RECIPIENT will safeguard from disclosure to third parties, information that may reasonably be
regarded as confidential business information consistent with federal, state, and local laws.
By
Date:
ROBERT G. EISENBEISZ, RC.E.
City Engineer
DBE Liaison Officer (DBELO)
300 N. "D" Street, 3rd Floor
San Bernardino, CA 92418-0001
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:
Date:
PATRICK HALLY
Local Assistance Engineer (DLAE)
Caltrans District 8
Distribution: ( 1 ) Original ~ DLAE
( 2 ) Signed copy by the DLAE - Local Agency
(Updated: March 4, 2009 )
March 4, 2009
Exhibit 9-A
Attachment "A"
to Exhibit 9-A
ORGANIZATIONAL CHART
CITY OF SAN BERNARDINO DBE PROGRAM
an 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 Livinl!:ston
CITY ENGINEER
DBE LIAISON OFFICER
Robert Eisenbeisz
March 4, 2009