HomeMy WebLinkAbout6207
RESOLUTION NO.6207
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ARCADIA, CALIFORNIA, REGARDING THE
ADOPTION OF A DISADVANTAGED BUSINESS
ENTERPRISE (DBE) PROGRAM AND DIRECTING ITS
IMPLEMENTATION
WHEREAS, local agencies applying for federal funds must
comply with all the elements of Title 49, Part 26 of the Code of
Federal
Regulations
(CFR)
entitled,
"Participation
by
Disadvantaged
Enterprises
in
Department
of
Transportation
Financial Assistance Programs"; and
WHEREAS, the City of Arcadia receives federal financial
assistance from the Federal H~ghway Administration (FHWA); and
WHEREAS, the adoption and implementation of a Disadvantaged
Business Enterprise (DBE) Program is required before submission
of a Request for Authorization to proceed with a federal-aid
project; and
WHEREAS,
the
State
of
California
Department
of
Transportation (Caltrans) will monitor local agencies' procedures
to assure compliance with Title VI and Title VIII of the Civil
Rights Acts of 1964 and 1968, respectively.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA HEREBY RESOLVES AS FOLLOWS:
SECTION 1.
The 'City of Arcadia Disadvantaged Business
Enterprise (DBE) Program, a copy of which is attached hereto, is
hereby adopted.
6207
SECTION 2.
The City Manager or his/her designee shall
. administer the DBE Program on behalf of the City.
SECITON 3. The City Clerk shall certify to the adoption of
this Resolution.
Passed, approved, and adopted this 19th
day of December,
2000.
~~.,~~A;.J
May of t e City of Arcadia
ATTEST:
..<<....<.. ~
Ci~/Clerk of th
f Arcadia
APPROVED AS TO ~ORM:
~~.~
Stephen P. Deitsch, City
Attorney
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
CITY OF ARCADIA )
)
) SS:
I, JUNE D. ALFORD, City Clerk of the City of Arcadia, hereby
certify that the foregoing Resolution No. 6207 was passed and
adopted by the City Council of the City of Arcadia, signed by the
Mayor, and attested to by the City Clerk at a regular meeting of
said Council held on the 19th
day of Decembe;r 2000, and that said
Resolution was adopted by the following vote, to wit:
AYES: Counci1member Chandler, Chang, Marshall, Segal and Kovacic
NOES: None
ABSENT: None
6207
, DISADVANTAGED
, BUSINESS ENTERPRISE
(PBE) PROGRAM'
, CI:TY OF ARCADIA
,
This Program is in accordance with Title 49 of the Code of Federal Regulations Part 26 .
, I
DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM
CITY OF ARCADIA
I Definitions of Terms
The terms used in this program have the meanings defined in 49 CFR ~26.5.
II Objectives IPolicy Statement (~~26.1, 26.23)
The City of Arcadia has established a Disadvantaged, Business Enterprise (DBE)
program in, accordance with regulations of the U.S. Department of Transportation
(DOT), 49 CFR Part 26. The City of Arcadia has received Federal financial assistance
from the DOT, and as a condition of receiving this assistance, the City of Arcadia will
sign an assurance that it will comply with 49 CFR Part 26.
It is the policy of the City of Arcadia to ensure that DBEs, as defined in part 26, have an
equal opportunity to receive and participate in DOT-assisted contracts. It is also our
, policy:
To ensure nondiscrimination in the award and administration of DOT-assisted
contracts; ,
. To create a level playing field on which DBEs can compete fairly for DOT-
assisted contracts;
To ensure that the DBE Program is narrowly tailored in accordance with
applicable law; ,
To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are
_ permitted to participate as DBEs;
To help remove barriers to the participation of DBEs in DOT-assisted contracts;
and
To assist the development of firms that can compete successfully in the market
place outside the DBE Program.
, Dan A. Lazo, Associate Civil Engineer has been delegated as the DBE Liaison Officer.
In that capacity, Dan A. Lazo is responsible for implementing all aspects of the DBE
program. Implementation of the DBE program is accorded the same priority as
compliance with all other legal obligations incurred by the City of Arcadia in its financial
assistance agreements with the California Department of Transportation (Caltrans).
City of Arcadia has disseminated this policy statement to the City Council of the City of ,
Arcadia and all the components of our organization. We have distributed this statement
to DBE and non-DBE business communities that perform work for us on DOT-assisted
contracts by publishing this ,statement in general circulation, minority-focused and trade
association publications. .
2
III Nondiscrimination (926.7)
City of Arcadia 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 its, DBE program, the City of Arcadia 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 with respect to individuals of a particular race, color,' sex, or national
origin.
IV DBE Program Updates (926.21)
City of Arcadia will ,continue to carry out this program until the City of Arcadia has
established a new goal setting methodology or until significant changes to this DBE,
Program are adopted. City of Arcadia will provide to Caltrans a proposed overall goal
and goal setting methodology and other program updates by June 1 of every year.
V Quotas (926.43)
City of Arcadia will not use quotas or set asides in any way in the administration of this
DBE program.
VI DBE Liaison Officer (DBELO) (926.45)
City of Arcadia has designated the following individual as the DBE Liaison Officer:
Dan A. Lazo, P.E.
Associate Civil Engineer
240 W. Huntington Drive
Arcadia, CA 91007
(626) 574-5481
dlazo@ci.arcadia.ca.us
In that capacity, Dan A. Lazo is responsible for implementing all aspects of the DBE
program and' ensuri~g that the City of Arcadia complies with all provisions of 49 CFR
Part 26. ,This, is available on the Internet at osdbuweb.dot.gov/main.cfm. Dan A. Lazo
has direct, independent access to the City Manager concerning DBE program matters.
Dan A. Lazo has a staff of 2 professional employees assigned to the DBE program on a
full-time basis and one support personnel who devote a portion of their time to the
program. An organization chart displaying the DBELO's position in the organization is '
found in Attachment A to this program.
3
The DBELO is responsible for developing, implementing and monitoring the DBE
program, in coordination 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 set overall annual goals.
4. Ensures that bid notices and requests for proposals are available to DBEs in a
timely manner.
5. Identifies contracts and procurements so that DBE goals are included in solicitations
(both race-neutral methods and contract specific goals) and monitors results.
6. Analyzes City of Arcadia's progress toward goal attainment and identifies ways to '
improve progress.
7. Participates in pre-bid meetings.
8. Advises the CEO/governing body on DBE matters and achievement.
9. Chairs the DBE Advisory Committee.
10. Participates with the legal counsel and project director to determine contractor
compliance with good faith efforts.
11. Provides DBEs with information and assistance in preparing bids, obtaining bonding
and insurance.
12,Plans and participates in DBE training seminars.
13. Provides outreach to DBEs' and community organizations to advise' them of
opportunities.
VII Federal Financial Assistance AgreementAssurance (926.13)
City of ArC<idia will sign the following assurance, applicable to all FHWA-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 18U.S.C. 1001 and/or the Program Fraud Civil Remedies
Act of 1986 (31 U.S.C. 3801 et seq.).
4
[Note - this language is to be used verbatim, as it is stated in 926.13(a). However,
, approval authority of the recipient's DBE Program has been delegated to Caltrans for
Ff-IWA-Bssisted confracts.]
VIII DBE Financial Institutions
It is the policy of the City of Arcadia to investigate the full extent bf services offered by
financial institutions owned and controlled by socially and economically disadvantaged
individuais 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 DBE Liaison
Officer. The Caltrans Disadvantaged, Business Enterprise Program may offer
assistance to the DBE Liaison Officer. .
IX Directory (926.31)
City of Arcadia will refer interested persons to the DBE directory available from the
Caltrans Disadvantaged Business Enterprise Program website at
www.dot.ca.gov/hqlbep.
X Overconcentration (926.33)
, City of Arcadia has not identified any types of work in DOT-assisted contracts that have
a overconcentration of DBE participation. If in the future City of Arcadia identifies the
need to address overconcentration, measures for addressing overconcentration will be
submitted to the DlAE for approval.
# '
XI Business Development Programs (926.35)
City of Arcadia does not have a business development or mentor-protege program. If
the City of Arcadia identifies the need for such a program in the future, the rationale for
adopting such a program and a comprehensive description of it will be submitted to the
DLAE for approval.
XII Required Contract Clauses (9926.13, 26.29)
Contract Assurance
City of Arcadia ensures that the following clause is placed in every DOT-assisted
contract and subcontract:
5
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 it is stated in 926. 13(b). See Caltrans
Sample Boiler Plate Contract Documents on the Internet at
www.dot.ca.gov/hq/LocaIProgram under "Publications."]
Prompt Payment
City of Arcadia ensures that the following clauses or equivalent will be included in each
DOT-assisted prime contract:,
Satisfactory Performance
The prime contractor agrees to pay each subcontractor under this prime contract for
satisfactory performance of its contract no later than 10 days from the receipt of each
payment the prime contractor receives from City of Arcadia. Any delay or postponement
of payment from the above. referenced time frame may occur only for good cause
following written approval of the City of Arcadia. This clause applies to both DBE and
non-DBE subcontractors
Release of RetainaQe
The prime contractor agrees further to release retainage payments to each
subcontractor within 30 days after the subcontractor's work is satisfactorily completed.
Any delay or postponement of payment fro'm the above referenced time frame may
occur only for good cause following written approval of the City of Arcadia. This clause
applies to both DBE and non-DBE subcontraCtors.
XIII Monitoring and Enforcement Mechanisms (926.37)
The City of Arcadia will assign a Resident Engineer (RE) or Contract Manager to
monitor and track actual DBE participation through contractor and subcontractor reports
of payments in accordance with the following:
After Contract Award
After the contract award the City of Arcadia will review the award documents for the
portion of items each DBE and ,first tier subcontractor will be performing and the dollar
value of that work. With these documents the RE/Contract Manager will be able to
determine the work to be performed by the DBEs'or subcontractors listed. '
6
Preconstruction Conference
A preconstruction conference will be scheduled between the RE and the contractor or
meir representative to discuss the work each DBE subcontractor will perform. ' '
Before work can begin on a subcontract, the local agency will require the contractor to
submit a complefed ::Subcontracting Request," Exhibit 16-B of the LAPM or equivalent.
When the RE receives the completed form it will be checked for agreement of the first
tier subcontractors ~nd DBEs. The RE will not approve the request when it identifies
someone other than the DBE or first tier subcontractor listed' in the previously
completed "Local Agency Bidder DBE Information," Exhibit 15-G. The "Subcontracting
Request" will not be 'approved until any discrepancies are resolved. If an issue cannot
be resolved at that time, or there is some other concern, tlie RE will require the
contractor to eliminate the subcontractor in question before signing the subcontracting
request. A change in the DBE or first tier subcontractor may be addressed during a
substitution process at a later date.
Suppliers, vendors,' or manufacturers listed on the "Local Agency Bidder DBE
Information" will be compared to those listed in the completed Exhibit 16-1 of the LAPM
or equivalent. Differences must be resolved by either making corrections or requesting
a substitution. '
Substitutions will be subject to the Subletting' and Subcontracting Fair Practices Act
(FPA). Local agencies will require contractors to adhere to the provisions within
Subletting and SubcOntracting Fair Practices Act (State Law) Sections 4100-4144: FPA
requires the contractor to list all subcontractors in excess of one half of one percent
(0.5%) of the contractor's total bid or $10,000, whichever is greater. The statute is
designed to prevent bid shopping by contractors. The FPA explains that a contractor
may not substitute a subcontractor listed in the original bid except with the approval of
the awarding authority.
The RE will give the contractor a blank Exhibit 17-F, "Final Report Utilization of
Disadvantaged Business Enterprises, First Tier Subcontractors" and will explain to them,
that the document will be required at the end of the project, for which payment can be
withheld, in conformance with the contract. .
Construction Contract Monitorina
The RE will enSLJre that the RE's staff (inspectors) know what items of work each DBE
is responsible for performing. Inspectors will notify the RE immediately of apparent
violations.
7
When a firm other than the listed DBE subcontractor is found performing the work, the
RE will notify the contractor of the apparent discrepancy and potential loss of payment.
Based on the contractor's response, the RE will take appropriate action:' The DBE
Liaison Officer will perform a preliminary investigation to identify any potential issues
related to the DBE subcontractor performing a commercially useful function. Any
substantive issues will be forwarded to the Caltrans Disadvantaged Business Enterprise
Program. If the contractor fails to adequately explain why there is a discrepancy,
payment for the work will be withheld and a letter will be sent to the contractor
referencing the' applicable specification violation and the required withholding of
payment.
If the contract requires the submittal of a monthly truck document, the contractor will be
required to submit documentation to the RE showing the owner's name; California
Highway Patrol CA number; and the DBE certification number of the owner of the truck
for each truck used during that month for which DBE participation will be claimed. The
trucks will be listed by California Highway Patrol CA number in the daily diary or on a
separate piece of paper for documentation. The numbers are checked by inspectors
regularly to confirm compliance.
Providing evidence of DBE payment is the responsibility of the contractor.
Substitution
When a DBE substitution is requested, the RElContract Manager will request a letter
from the contractor explaining why substitution is needed. The RElContract Manager
must review the letter to be sure names and addresses are shown, dollar values are
included, and reason for the request is explained. If the RElContract Manager agrees
to the substitution, the RElContract Manager will' notify, in' writing, the DBE
subcontractor regarding the proposed substitution and procedure for written objection
from the DBE subcontractor in accordance with the Subletting and Subcontracting Fair
Practices Act. If the contractor is not meeting the contract goal with this substitution,
the contractor must provide the required good faith eftortto the RElContract Manager
for local agency consideration.
If there is any doubt in the RElContract Manager's mind regarding the requested
,substitution, the RE/Contract Manager may contact the DLAE for assistance and
direction.
Record Keepinq and Final Report Utilization of Disadvantacied Business Enterprises
The contractor shall maintain records showing the name and address of each first-tier
subcontractor. The records shall also show:
1. The name and business address, regardless of tier, of every DBE subcontractor,
DBE vendor of materials and DBE trucking company.
8
2. The date of payment and the total dollar figure paid to each of the firms.
3. The DBE prime contractor shall' also show the date of work performed by their own
forces along with the corresponding dollar value of the work claimed toward DBE
goals.
When a contract has been completed the contractor will provide a summary of the
records stated above. The DBE utilization information will be documented on Exhibit
17-F and will be submitted to the DLAE attached to the Report of Expenditures. The RE
will compare the completed Exhibit 17-F to the contractor's completed Exhibit 15-G and,
if applicable, to the completed Exhibit 16-B. The DBEs shown on the completed Exhibit
17-F should be the same as those originally listed unless an authorized substitution
was allowed, or the contractor used more DBEs and they were added. The dollar
amount should reflect any changes made in planned, work done by the DBE. The
contractor will be required to explain in writing why the names of the subcontractors, the
work items or dollar figures are different from what was originally shown 6n the
completed Exhibit 15-G when: '
. There have been no changes made by the RE.
. The contractor has not provided a sufficient explanation in the comments section of
the completed Exhibit 17-F.
The explanation will be attached to the completed Exhibit 17 -F for submittal. The RE
will file this in the project records.
The local agency's Liaison Officer will keep track of the DBE certification status on the
Internet at www.dot.ca.gov/hqlbep and keep the RE informed of changes that affect the
contract. The RE will require the contractor to act in accordance with existing
contractual commitmEmts regardless of decertification.
The DLAE will use the PS&E checklist to monitor the City of Arcadia's commitment to
require bidders list information to be submitted to the City of Arcadia from the awarded
prime and subcontractors as a means to develop a bidders list. This monitoring will
,
only take place if the' bidders list information is required to be submitted as stipulated in
the special provisions. '
City of Arcadia will bring to the attention of the DOT through the pLAE any false,
fraudulent, or dishonest conduct in connection with the program, so that DOT can take
the steps (e.g., referral to the Department of Justice for criminal prosecution, referral to
the DOT Inspector General, action under suspension and debarment or Program Fraud
and Civil Penalties rules) provided in 926.109. City of Arcadia also will consider similar
action under our own legal authorities, including responsibility determinations in future
contracts.
9
XIV Overall Goals (926.45)
Amount of Goal
City of Arcadia's overall goal for the Federal ,fiscal year FY 2000/01 is the following:
11 % of the Federal financial assistance inFHWA-assisted contracts. This overall goal
is broken down into 5% race-conscious and 6% race-neutral components.
MethodoloQY'
For FY 2000/01, see attachment B
Breakout of Estimated Race-Neutral and Race-Conscious Participation
For FY 2000101, see attachment B.
Process
Starting with the Federal fiscal year 2002, the amount of overall goal, the method to
calculate the goal, and the breakout of estimated race-neutral and race-conscious
participation will be required annually by June 1 in advance of the Federal fiscal year
beginning October 1 for FHWA-assisted contracts. Submittals will be to the Caltrans'
DLAE An exception to this will be if FTA or FAA recipients are required by FTA or FAA
to submit the annual information to them or a designee by ,another date. FHWA
recipients will follow this process:
Once the DLAE has responded with preliminary comments and the comments have
been incorporated into the draft overall goal information, the City of Arcadia will publish
a notice of the proposed overall goal, informing the public that the proposed goal and its
rationale are available for inspection during normal business hours at the City of
Arcadia's principal office for 30 days following the date of the notice, and informing the
public that comments will be accepted on the goals for 45 days following the date of the
notice. Advertisements in newspapers, minority focus media, trade publications, and
websites will be the normal media to accomplish this effort. The notice will include
addresses to which comments may be sent and addresses' (including offices and
websites) where the proposal may be reviewed. .
The overall goal resubmission to the Caltrans DLAE, will include a summary of
information and comments received during this public participation process and City of
Arcadia's responses. This will be due by September 1 to the Caltrans DLAE The
DLAE will have a month to make a final review so the City of Arcadia may begin using
the overall goal on October 1 of each year.
, If there is a design build please refer to Appendix Bof this Model DBE Program.
10
XV Contract Goals (926.51) .
City of Arcadia will use contract goals to meet any portion of the overall goal City of
Arcadia does not project being able to meet by the use of race-neutral means. Contract
goals are established so that, over the period to which the overall goal applies, they will
cumulatively result iR meeting any portion of the overall goal that is not projected to, be
, met through the use of race-neutral means.
,
Contract goals will be established only on those DOT-assisted contracts that have
subcontracting possibilities. Contract goals need not be established on every such
contract, and the size of contract goals will be adapted to the circumstances o~ each
such contract (e.g., type and location of work, availability of DBEs to perform the
particular type of work). The contract work items will be compared with eligible DBE
contractors willing to work on the project. A determination will also be made.to decide
which items are likely to be performed by the prime contractor and which ones are likely
to be performed by the subcontractor(s). The goal will then be incorporated into the
contract documents. Contract goals will be expressed as a percentage of the total
amount ofa DOT-assisted contract.
XVI Transit Vehicle Manufacturers (926.49)
If DOT-assisted contracts will include transit vehicle procurements, City of Arcadia 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. City of Arcadia will direct the transit
vehicle manufacturer to the subject requirements located on the Internet at
http://osdbuweb.dot.gov/programs/dbe/dbe. htm.
XVII Good Faith Efforts (926.53)
Information to be Submitted
, , .
City of Arcadia treats bidders'lofferors'compliance with good faith effort requirements
as a matter of responsiveness. A responsive proposal is meeting all the requirements
of the advertisement and solicitation.
Each solicitation for which a contract goal has been established will require the
bidders/offerors to submit the following information to City of Arcadia, 240 W.
Huntington Dr., Arcadia, CA 91007 no later than 4:00 p.m. on or before the fourth day,
not including Saturdays, Sundays and legal holidays, following bid opening:
1. The names and addresses of known DBE firms that will participate in the contract;
2. A d~scription of t~e work that each DBE will perform:
3. The dollar amount of the partiCipation of each DBE firm participation,
II
4. Written and signed documentation of commitment to use a DBE subcontractor
whose participation it submits to meet a contract goal;
5. Written and signed confirmation from the DBE that it is participating in the contract
as provided in the prime contractor's commitment; and
6. If the contract goal is not met, evidence of good faith efforts.
Demonstration of Good Faith Efforts
The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can
demonstrate that it has done so either by meeting the contract goal or documenting
good faith efforts. Examples of good faith efforts are found in Appendix A to part 26
which is attached.
The following personnel are responsible for determining whether a bidder/offeror who
has not met the contract goal has documented sufficient good faith' efforts to be
regarded as responsive: Dan A. Lazo and Ramiro Gonzalez
City of Arcadia will ensure that all information is complete and accurate and adequately
documents the bidder/offeror's good faith efforts before a commitment to the
performance of the contract by the bidder/offeror is made.
Administrative Reconsideration
Within 10 days of being informed by City of Arcadia that it is not responsive because if
has not documented sufficient good faith efforts, a bidder/offeror may request
administrative, reconsideration. Bidder/offerors should make this request in writing to
the following reconsideration official:
Don Penman,
Assistant City Manger/ Development Services Director
240 W. Huntington Dr.
Huntington Dr., Arcadia, CA 91007
(626) 574-5414
dpenman@ci.arcadia.ca.us
The reconsideration official will not have played any role in the original determination
that the bidder/offeror did not make or document sufficient good faith efforts.
12
As part of this reconsideration, the bidder/offeror will have the opportunity to provide
written documentation or argument concerning the issue of whether it met the goal or
made adequate good faith efforts to do so. The bidder/offeror will have the opportunity
to meet in person wi,th the reconsideration official to discuss the issue of whether it met
the goal or made adequate good faith efforts to do so. The City of Arcadia will send the
bidderlofferor a written decision on reconsideration, explaining the basis for finding that
the bidder did or did not meet the goal or make adequate good faith efforts to do so.
The result of the reconsideration process is not administratively appealable to Caltrans,
FHWA or the DOT. .
Good Faith Efforts when a DBE is Replaced on a Contract
City of Arcadia will require a contractor to make good faith efforts to replace a DBE that
is terminated or has otherwise failed to complete its work on a contract with another
certified DBE, to the,extent needed to meet the contract goal. The prime contractor is
required to notify the RE immediately of the DBE's inability or unwillingness to perform
and provide reasonable documentation.
In this situation, the prime contractor will be required to obtain City of Arcadia prior
approval of the substitute DBE and to provide copies of new or amended subcontracts,
or documentation of 'good faith efforts. If the contractor fails or refuses to comply in the
time specified, City of Arcadia contracting office will issue an order stopping all or part
of paymentlwork until satisfactory action has been taken. If the contractor still fails to
comply, the contracting officer may issue a termination for default proceeding.
XVIII Counting DBE Participation (926.55)
City of Arcadia will count DBE participation toward overall and contract goals as
provided in' the contract specifications for the prime contractor, subcontractor, joint
venture partner with prime or subcontractor, or vendor of material or supplies. See the
Caltrans' Sample Boiler Plate Contract Documents previously mentioned. Also, refer to
XIII. "After Contract Award."
XIX Certification (926.83(a))
,City. of Arcadia ensures that only DBE firms currently certified on the Caltrans' directory
will participate as DBEs in our program.
. .
13
xx Information Collection and Reporting
Bidders List
The City of Arcadia 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 firms.
/'
MonitorinQ Pavments to DBEs
Prime contractors are required to maintain records and documents of payments to
DBEs for three years following the performance of the contract. These records will be
made available for inspection upon request by any authorized representative of the City
of Arcadia, Caltrans, FHWA, or DOT. This reporting requirement also extends to any
certified DBE subcontractor. '
Payments to DBE subcontractors will be reviewed by the City of Arcadia to ensure that
the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts
stated in the schedule of DBE participation.
ReportinQ to Caltrans
City of Arcadia - Final utilization of DBE participation will be reported to the DLAE using
Exhibit 17-F ofthe Caltrans' LAPM.
Confidentiality
City of Arcadia will safeguard from disclosure to third parties information that may
reasonably be regarded as confidential business information, consistent with Federal,
state, and local laws.
WillialT) R. Kelly, City Manger
Date:
This Disadvantaged Business Enterprises Program is accepted by:
[Signature of DLAE]
Date:
14
APPENDIX A TO PART 26 -- GUIDANCE CONCERNING GOOD FAITH EFFORTS
I. When, as a recipient, you establish a contract goal on a DOT-assisted contract, a bidder
must, in order to be responsible and/or responsive, make good faith efforts to meet the goal.
The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal,
documenting commitments for participation by DBE firms sufficient for this purpose. Second,
even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This
means that the bidder must show that it took all necessary and reasonable steps to achieve a
DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness
to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they
were not fully successful.
II. In any situation in which you have established a contract goal, part 26 requires you to use the
good faith efforts mechanism of this part. As a recipient, it is up to you to make a fair and
reasonable judgment whether a bidder that did not meet the goal made adequate good faith
efforts. It is important for you to consider the quality, quantity, and intensity of the different kinds
of efforts that the bidder has made. The efforts employed by the bidder should be those that
one could reasonably expect a bidder to take if the bidder were actively and aggressively trying
to obtain DBE participation sufficient to meet the DBE contract goal. 'Mere pro forma efforts are
not good faith efforts to meet the DBE contract requirements. We emphasize', however, that
your determination concerning the sufficiency of the firm's good faith efforts is a judgment call:
meeting quaniitative formulas is not required.
III. The Department also strongly cautions you against requiring that a bidder meet a contract
r '
goal (I.e., obtain.a specified amount of DBE participation) in order to be awarded a contract,
even though the bidd~r makes an adequate good faith efforts showing. This rule specifically
prohibits you from ignoring bona fide good faith efforts.
IV. . The fOllowing is a list of types of actions which you should consider as part of the bidder's ,
good faith efforts to obtain DBE participation. It is not intended to be a mandatory checklist, nor
is it intended to be exclusive or exhaustive.' Other factors or types of efforts may be relevant in
appropriate cases.
A. Soliciting through all reasonable and available means (e.g. attendance at pre-bid
meetings, advertising and/or written notices) the interest 'of all certified DBEswho have
the capability to perform the work of the contract. The bidder must solicit this interest
,
within sufficient time to allow the DBEs, to respond to the solicitation. The bidder must
determine with certainty if the DBEs are interested by taking appropriate steps to follow
up initial solicitations.
B. Selecting portions of the work to be performed by DBEs in order to increase the
likelihood that the DBE goals will be achieved. This includes, where appropriate,
breaking out contract work items into economically feasible units to facilitate DBE
participation, even when the prime contractor might otherwise prefer to perform these
work items with its own forces.'
15
C. Providing interested DBEs with adequate infonnation about the plans, specifications,
and requirements of the contract in a timely manner to assist them in responding to a
solicitation.
D.. (1) Negotiating in good faith with interested DBEs. .It is the bidder's responsibility to
make a portion of the work available to DBE subcontractors and suppliers and to select
those portions of the work or material needs consistent with the available DBE
subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such
riegotiation includes the names, addresses, and telephone numbers of DBEs that were
considered; a description of the information provided regarding the plans and
specifications for the work selected for subcontracting; and evidence as to why additional
agreements could not be reached for DBEs to perform the work.
(2) A bidder using good business judgment would consider a number of factors in
negotiating with subcontractors, including DBE subcontractors, and would take a finn's
price and capabilities as well as contract goals into consideration. However, the fact that
there may be some additional costs involved in finding and using DBEs is not in itself
sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such
costs are reasonable. Also, the abilitior'desire of a prime contractor to perform the work
of a contract with its own organization does not relieve the bidder of the responsibility to
make good faith efforts. Prime contractors are not, however, required to accept higher
quotes from DBEs if the price difference is excessive or unreasonable.
E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough
investigation of their capabilities. The. contractor's standing within its industry,
membership in specific groups, organizations, or associations and political or social
affiliations (for example union vs. non-union employee status) are not legitimate causes
for the rejection or non-solicitation of bids in the contractor's efforts to meet the project
goal.
F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or
insurance as required by the recipient or contractor.
G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies,
materials, or related assistance or services. .
H. Effectively using the services of available minority/women community organizations;
minority/women contractors' groups; local, state, and Federal minority/women business
assistance offices; and other organizations as allowed on a case-by-case basis to
provide assistance in the recruitment and placement of DBEs.
V. In detennining whether a bidder has made good faith efforts, you may take into account the
performance of other bidders in meeting the contract. For example, when the apparent
successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise
the question of whether, with additional reasonable efforts, the apparent successful bidder could
have rT]et the goal. If the apparent successful bidder fails to meet the goal,. but meets or
exceeds the average DBE participation obtained by other bidders, you may view this, in
conjunction with other factors, as evidence of the apparent successful bidder having made good
faith efforts.
16
. , .,
APPENDIX B
TO BE USED FOR DESIGN-BUILD CONTRACTS
The following are hereby incorporated into the Agency's Disadvantaged Business
Enterprise (DBE) Program:
II Objectives IPolicy Statement (9926.1, 26.23)
At the end of the first paragraph, add the following:
The Agency recognizes that certain modifications are necessary to
adapt the program for use in connection with design-build contracts, and has
therefore established certain' procedures applicable to design-build DBE
contracts under the DBE Program. Public Contract Code Section 4109 requires
subcontractors to ,be identified by the prime contractor for the subletting or
sUbcontracting of any portion of the work in excess of one-half of 1 percent of the
. prime contractor's total bid. Exceptions are only in the cases of public
emergency or necessity, and then only after a finding reduced to writing as a
public record of tf!e awarding authority setting forth the facts constituting the
emergency or necessity. The written public record of the awarding
authority/Agencya's to either emergency or necessity is attached hereto (See
Appendix C for sample).
XIII Monitoring and Enforcement Mechanisms (926.37)
At the end of the first paragraph below "After Contract Award", add the following
paragraph:
After Design-Build Contract Award
. As described in the Section entitled "GOOD FAITH EFFORTS" below, each
proposer for an Agency design-build contract will be required to submit a DBE
Performance Plan, as part of a responsive proposal. Following award of a
design-build contract and during both the design and construction portions of
the project, the design-build contractor will be required to submit documentation,
in the form of progress reporls described below, to show. that the design-build
contractor is meeting the contract goal for the project, or if the goal is not being
met, the design-build contractor must submit satisfactory evidence that it has
made good faith efforts, in accordance with that Section, to meet the goal.
Evidence of good faith efforls, as described in 49 CFR Part 26 Section 26.5349
and Appendix A, will be monitored by the Agency throughout the duration of the
design-build project .
17
At the end of the first paragraph bE!low "Preconstruction Conference", add the
following sentence:
The contractor will promptly provide the Agency with the information
required by the form entitled "Local Agency DSE Information" upon selection of
. any DSE or other subcontractor not previously identified by the design-build
contractor. During the course of the contract, differences must be explained and
resolved by either making corrections or requesting B substitution.
At the end of the fourth paragraph below "Construction Contract MonitorinQ", add
. the followino oaraoraph:
The contractor will provide DSE Progress Reporls to the Agency with
each invoice andwill provide an annual report on or before August 1 of each year
of the design-build contract. Each report must also include a narrative summary .
stating whether the contractor is on target with respect to the DSE goal set forth .
in the design-build contract, whether the goal has been exceeded (stating the
amount. of the excess), or whether the contractor is behind target (stating the
amount of the deficit).
XVII Good Faith Efforts (926.53)
At the end of the third paragraph below "Information to be Submitted", add the
following items:
7. A DSE Performance Plan containing a detailed description of the
design-build contractor's planned methodology for achieving the
. DSE goal stated in the contract, including a description of the good
faith efforls the design-build contractor intends to undertake to
achieve that goal.
B. A design-build proposal must also include an affidavit that the
proposer will either attain the DSE goals for the. design-build
contract orwill exercise good faith efforls to do so.
At the end of the first paragraph below "Demonstration of Good Faith Efforts",
add the following sentence:
If it is a design-build contract, each contractor proposing will be
required to submit a DSE Performance Plan as part of a responsive proposal and
good faith efforls.
. c
18
William R. Kelly, City Manager
, .
Date:
This Disadvantaged Business Enterprise Program. for design-build contracts is
accepted by:
[Signature of DLAE]
Date:
19
APPENDIX C
RESOLUTION OF THE (Agency Name) REGARDING NECESSITY
OR EMERGENCY FOR SUBSEQUENT SUBCONTRACTOR
IDENTIFICA nON AND SELECTION FOR DESIGN-BUILD CONTRACTS
(REQUIRED BY PUBLIC CONTRACT CODE SECTION 4109
ENTITLED "Public Emergency Grounds For Change")
A. EXPLANATION OF PUBLIC NECESSITY OR EMERGENCY:
B. FACTS CONSTITUTING THE PUBLIC NECESSITY OR EMERGENCY:
C. FINDINGS: .
D. RESOLUTION FOR SUBSEQUENT IDENTIFICATION OF .
SUBCONTRACTORS:
E. ADOPTION OF PROCEDURE TO BE USED BY DESIGN-BUILD .
CONTRACTOR FOR SUBSEQUENT IDENTIFICATION OF
SUBCONTRACTORS:
F. CERTIFICATE OF SECRETARY.
1. MOTION MADE AND DATE
2. VOTING RESULTS
3. SIGNATURES: '
. (a) (Secretary)
(b) (Chairperson)
20
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21
CITY OF ARCADIA
DISADVANTAGE BUSINESS ENTERPRISE lOBE} PROGRAM
ORGANIZATIONAL CHART .
WILLIAM R: KELLY
CITY MANAGER
Chief Executice Officer
DON PENMAN
ASST. CITY MANAGER!
DEV. SERVICES OIR.
Reconsideration Official
STAN SCHOLL, P.E.
CITY ENGINEER
(Part Time)
DAN A. lAZO, PE
ASSO. CIVIL ENGINEER
DBE liaison Officer
BECKY PIKE
SR ADMIN. ASSISTANT
Contract Management
Support
I I
RAMIRO GONZALEZ TIM KELLEHER
ASSISTANT ENGINEER SR ENGINEERING ASSISTANT
Project EngineerlManager Contract Management
Attachment A
Attachment B
(my OF ARCADIA IN LOS ANGELES COUNTY
OVERALL ANNUAL DBE GOAL SETTING METHODOLOGY
Method 2
"Utilizing the Bidders' List"
I. DOT-ASSISTED CONTRACTING PROGRAM FOR FISCAL 2000101
No. of DBE Total No. Est. % Of Federal
Work categoryl WCC Bidders In Bidders Dollar Funding By
Description The List In the List Value Work
Cateaory
A PRELIMINARY
ENGINEERING:
(DONE IN-HOUSE)
B. REHABILITATION OF 1 12 $271,000 100%
GOLDEN WEST AVENUE
FROM HUNTINGTON DR.
TO S. CITY LIMIT:
- Roadway Excavation C1901 $46,070
- Paving Asphalt c3910.. $211,380
- Painted Traffic Stripe C8406 $13,550
and MarkinQ
Total $271,000 100%
II. GOAL SETTING METHODOLOGY
Step 1: Determining a Base Figure (26.45)
City of Arcadia elected to utilize the following. methodology in establishing its
Base Figure of relative DBE availability for FY 2000101:
- For the numerator:
- For the denominator:
DBE Firms in City of Arcadia's Bidders List
All Firms in City of Arcadia's Bidders List
The City of Arcadia will calculate its weighted Base Figure by first determining
the number of ready willing and able DBEs in its Bidders List work category, and
dividing the number of DBEs by the total number of firms in the same work
category. Through this method, City of Arcadia can measure availability by the
number of firms that have directly participated in, or attempted to participate in,
. City of Arcadia DOT-assisted contracting in the recent past.
1
Application of this formula yields the following baseline information:
DBE Firms in City of Arcadia's Bidders List
All Firms in City of Arcadia's Bidders List
= BASE FIGURE
The Base Figure resulting from this calculation is as follows: .
Base Figure = f(O}(DBE in A} + (1}(DBE in B)l *100
Firms in A Firms in B
Base Figure = [ <ID!Zl + (1)(1)1 * 100
15 12
Base Figure = [(0) + (.0833)] * 100
Base Figure = 8.33% (Use 8%)
Step 2: Adjusting the Base Figure
Upon establishing the Base Figure, the City of Arcadia reviewed 'and assessed
other known relevant evidence to determine what additional adjustments, if any,
were needed to narrowly tailor the Base Figure to City of Arcadia's marketplace.
Factors considered in determining City of Arcadia's DSE participation that can
be expected, absent discrimination, including the following:
A. Current Capacity of DBEs Measured by Proposed Utilization:
The volume of work to be performed by DBEs in City of Arcadia's. DOT-
assisted contracting program for Fiscal Year 1999/00 based on. proposed
DBE utilization.
B. The City of Arcadia has not conducted any disparity study regarding DBEs
versus non-DBEs.
C. The City of Arcadia has communicated with City of Monrovia about their DBE
goal attainment in the recent years. Their DBE goal attainment is 11 %.
D. Resultant Goal Adjustment:
The impact of these factors resulted in an upward adjustment of the Base
Figure from 8% to 11 % for DBE participation in City of Arcadia's DOT-
assisted contracts projected to be in FY 2000100.
2
III. UTILIZATION OF RACE-NEUTRAL AND RACE-CONSCIOUS METHODS
Of the overall annual 11 % goal for DBE participation, the City of Arcadia projects
meeting 5% of the goal utilizing race-neutral methods, including making efforts
to assure that bidding and contract requirements facilitate participation by DBEs
and other small business; 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
DBE and other small businesses. The remaining 6% of the goal is anticipated to
be accomplished through race-conscious measure, which includes establishing
contract specific goals on contacts with contracting possibilities, when needed,
to meet the City of Arcadia's overall annual DBE goal.
IV. PUBLIC PARTICIPATION SETTING OVERALL ANNUAL DSE GOALS
In conformance with Public Participation Regulatory Requirements of 49 CFR
Part 26.45 and Caltrans Local Assistance Procedure Manual (LAPM) - Chapter
9, this goal analysis has been reviewed with minority, women, local business
chambers, community organizations, and other U.S. DOT recipients. These
entities .are knowledgeable about the availability of disadvantaged and non-
disadvantaged bu~iness and the effects of discrimination on contracting
opporturOOes for DBEs withm City of Arcadia's marketplace.
Additionally, City ofArca,dia has published a Public Notice in general circula,tion
media, womenkninority.focused media, announcing the City's proposed overall
annual goals for the' FY 2000/01 contracts assisted by DOT. Such notice
informed the 'public that the proposed goals and their rationale were available for
inspection at the City during normal bUsiness hours for 30 days following the
date otp,l,Jblic Notice and, that the City will accept comments on the goals for 45
days from the date of the Public Notice. The required public participation
. provisiQ(1~will be fully satisfied prior to submitting the City's DBE Program.and
~verall Annual DBE Goal for Final Review and Approval.
3