HomeMy WebLinkAboutResolution 2006-089 N.C.S. 05/15/2006 Resolution No. 2006-089 N.C.S.
of the City of Petaluma, California
TO AUTHORIZE THE DISADVANTAGED BUSINESS ENTERPRISE (DBE) RACE-
NEUTRAL IMPLEMENTATION AGREEMENT BETWEEN THE CALIFORNIA
DEPARTMENT OF TRANSPORTATION AND THE CITY OF PETALUMA FOR
FEDERALLY FUNDED PROJECTS
WHEREAS, the City Council has discussed the proposed Disadvantaged Business
Enterprise (DBE) race neutral implementation agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma
that the proposed DBE Race-Neutral Implementation Agreement for Local Agencies, as
attached, is hereby adopted; and
BE IT FURTHER RESOLVED that the City Manager is directed to sign the agreement
before May 30, 2006.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the ~,pr e as to
Council of the City of Petaluma at a Regular meeting on the 15`x' day of May, 2006, ~ ~ o
by the following vote:
r
City, torney
AYES: Vice Mayor Canevaro, Harris, Healy, Nau, O'Brien, Torliatt
NOES: None
ABSENT: Mayor Glass
ABSTAIN: None
ATTEST: ~ ~
Cit Clerk 14[ayor
Y t,
Resolution No. 2006-089 N.C.S. Page 1
ATTACHMENT
DISADVANTAGED BUSINESS ENTERPRISE
RACE-NEUTRAL IMPLEMENTATION AGREEMENT
For the City of Petaluma, California, hereinafter referred to as "RECIPIENT."
I. Definition of Terms
The terms used in this agreement have the meanings defined in 49 CFR § 26.5.
II. OBJECTIVE/POLICY STATEMENT (§26/1. 26/23)
The RECIPIENT intends to receive federal financial assistance from the U. S. Department of
Transportation (DOT) through the California Department of Transportation (Caltrans), and as a
condition of receiving this assistance, the RECIPIENT will sign the California Department of
Transportation'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.
o To ensure that only firms that fully meet 49 CFR, Part 26 eligibility standards are permitted to
participate as DBEs.
o To help remove barriers to the participation of DBEs in DOT-assisted contracts.
o 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,
IV. Annual DBE Submittal Form (§26.21)
The RECIPIENT will provide to the Caltrans' District Local Assistance Engineer (DEAF) a completed
DBE Annual Submittal Form by June 1 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.
Resolution No. 2006-089 N.C.S. Page 2
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:
1. 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.
b. 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 amentor-protege program.
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. 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. [Specify resources available to the
DBELO; e.g., the DBELO has a staff of two professional employees assigned to the DBE program
on a full-time basis and two 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 to this
Agreement. This information will be updated annually and included on the DBE Annual
Submittal Form.
The DBELO is responsible for developing, implementing, and monitoring the RECIPIENT'S
requirements of the DBE Program Plan in coordination with other appropriate officials. Duties
and responsibilities include the following:
1. Gathers and reports statistical data and other information as required.
2. Reviews third party contracts and purchase requisitions for compliance with this program.
3. Works with all departments to determine projected Annual Anticipated DBE Participation
Level.
4. Ensures that bid notices and requests for proposals are made available to DBEs in a timely
manner.
Resolution No. 2006-089 N.C.S. Page 3
5. Analyzes DBE participation and identifies ways to encourage participation through race-
neutral means.
b. 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.
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 of the program supplement agreement for each
project.
The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award
and performance of any DOT-assisted contract, or in the administration of its DBE Program, or
the requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps
under 49 CFR, Part 26 to ensure nondiscrimination in the award and administration of DOT-
assisted contracts. The recipient's DBE Program, as required by 49 CFR, Part 26 and as approved
by DOT, is incorporated by reference in this agreement. Implementation of this program is a
legal obligation and failure to carry out its terms shall be treated as a violation of this agreement.
Upon notification to the recipient of its failure to carry out its approved program, the
Department may impose sanctions as provided for under Part 26 and may, in appropriate cases,
refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies
Act of 1986 (31 U.S.C. 3801 et seq.). [Note -this language is to be used verbatim, as it is stated in
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/bep.
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.
Resolution No. 2006-089 N.C.S. Page 4
[Note -This language is to be used verbatim, as is stated in §26.13(6). See Caltrans Sample
Boiler Plate Contract Documents on the Internet at www.dot.ca.gov/hq/LocalPrograms under
"Publications."]
B. PROMPT PAYMENT
Prompt Progress Payment to Subcontractors
A prime contractor or subcontractor shall .pay to any subcontractor not later than 10-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
10-days are 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.
Prompt Payment of Withheld Funds to Subcontractors
The local agency shall include (1), (2), or (3) of the following provisions [local agency equivalent
will need Caltrans approval] in their federal-aid contracts to ensure prompt and full payment of
retainage [withheld funds] to subcontractors in compliance with 49 CFR 26.29.
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
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 b.y 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 performance, and/or
noncompliance by a subcontractor. This clause applies to both DBE and non-DBE
subcontractors.
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
Resolution No. 2006-089 N.C.S. Page 5
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
f 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.
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:
Signature -Michael A. Bierman
City Manager, City of Petaluma
Phone Number: 707+778-4345
Print -Michael A. Bierman
City Manager, City of Petaluma
This California Department of Transportation's Disadvantaged Business Enterprise Program Plan
Implementation Agreement is accepted by:
Resolution No. 2006-089 N.C.S. Page 6
Date:
(Signature) Arthur P. Duffy, PE
Local Assistance Engineer-District 4
(Print) Arthur P. Duffy, PE
Local Assistance Engineer-District 4
Exhibit 9-B Local Agency DBE Annual Submittal Form
TO: Arthur P. Duffy, PE
Local Assistance Engineer, District 4
Department of Transportation.
P.O.Box 23440
Oakland, CA 94623-0440
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 Petaluma, submits our AADPL information. We have established an AADPL of 10 % for
the Federal Fiscal Year 05 /Ob, beginning on October 1, 2005, and ending on September 30,
2006.
Methodology
City of Petaluma
Overall Annual Anticipated DBE
Participation Level and Methodology
I. Dot-Assisted Contracting Program for FFY 2005/06
The following represents the City of Petaluma's projected FHWA funded contracts and
expenditures by work category and corresponding NAICS categories for FFY 2005/06:
Work NAICS Estimated % Fed.
Cate or Cate ones $ Value Funding
Design Street Rehab - P.E. & Const. Eng. 541330 $ 285,000 17%
Street Construction 237310 $1,345,000 830
TOTAL $1,630,000 100%
II. Availability Advisory Percentage Methodology
Step l: Determination of Ruse Figure
To establish the City of Petaluma's Base Figure of the relative availability of DBEs in relation to all
Resolution No. 2006-089 N.C.S. Page 7
comparable firms available for the City of Petaluma's FFY 2005/06 DOT-assisted contracting
program, the City of Petaluma has elected to utilize the Caltrans DBE Directory of certified firms
(filtered to represent only DBE firms within the City of Petaluma's relevant market area) for
calculating the numerator and. the County Census Bureau Data within the same geographical
market area to calculate the denominator, as follows:
> For the numerator: Caltrans' DBEDirectory
> For the denominator: Census Bureau's Business Pattern Database (CBPJ
To derive at the relative availability of DBEs, the number of DBEs available in Caltrans' DBE
Directory, was divided by the number of all comparable CBP firms available, application of this
formula yielded the following baseline information:
Number of Ready, Willing and Able DBEs =Base Figure
Number of All Ready, Willing, and Able DBE Firms
The Base Figure resulting from this calculation is as follows:
Work Category NAICS DBE's CBP Firms
Cate ories
Design Street Rehab - P.E. 8~ Const. Eng. 541330 26 922
Street Construction 237310 12 109
BaseFigure = 0.17(26/922) + 0.83(12/109) =9.58%= 10%
Step 2: Adjusting the Base Figure
For the past several years, the City has not had a similar federally funded project in their
contracting program. Therefore, the City believes the review of previous DBE utilization would not
warrant an adjustment of the base figure.
III. Utilization of Race-Neutral Methods
The overall annual 10% goal for DBE participation is anticipated to be achieved through race-
neutral measures. The City of Petaluma projects meeting 10% of the goal utilizing race-neutral
methods which would include: making efforts to assure that bidding and contract requirements
facilitate participation by DBEs and other small businesses; unbundling large contracts to make
them more accessible to small. businesses; encouraging prime contractors to subcontract
portions of the work that they might otherwise perform themselves; and providing technical
assistance, and other support services to facilitate consideration of DBEs and other small
businesses.
Disadvantaged Business Enterprise Liaison Officer (DBELO)
Vince Marengo
Director of Public Works/DBELO
City of Petaluma Phone 707+778-4303
11 English Street Fax 707+776-3602
Petaluma,CA 94952 vmarengo@ci.petaluma.ca.us
Resolution No. 2006-089 N.C.S. Page 8
Prompt Pav
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 the
attachment, please designate which prompt payment provision the local agency will use.)
Submitted by:
(Signature) Michael A. Bierman, City Manager Date
707-778-4345
(Print) Michael A. Bierman, City Manager Phone Number
(Signature) Arthur P. Duffy, PE Date
Local Assistance Engineer
(Print) Arthur P. Duffy, PE
Local Assistance Engineer
Resolution No. 2006-089 N.C.S. Page 9
(Prompt Payment 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.
? 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
? 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.
® 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.
Resolution No. 2006-089 N.C.S. Page 10