HomeMy WebLinkAboutMINUTES - 05232006 - SD.2 TO: BOARD OF SUPERVISORS �"���� ``�=='�' Contra
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FROM: MAURICE M. SHIU, PUBLIC WORKS DIRECTOR 0i Costa
DATE: May 23, 2006 `�x " `�v~ County
S�'`t CUUrt
SUBJECT: CONSIDER approving Disadvantage Business Enterprise (DBE) Race—Neutral Implementation
Agreement for Federal Highway Administration (FHWA) Funded Projects, Countywide.
SPECIFIC REQUEST(S)OR RECOMMENDA"T iON(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDED ACTION:
CONSIDER approving the Disadvantaged Business Enterprise - Race Neutral Implementation Agreement with
California Department of Transportation(Caltrans)and authorizing the County Administrator to sign the agreement
on behalf of the County, as required for federally funded highway projects administered by the County.
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CONTINUED ON ATTACHMENT: SIGNATURE:
RECOMMENDATION OF..COUNTY ADMINISTRATOR RECOMMENDA'T'ION OF BOARD COAIMIT'I'
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✓ APPROVE OTHER
SIGNATURE(S):
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ACTION OF BOOD N APPROVED AS RI--COMMENDED,-;K/-- OT14ER x
VOTE OF SUPERVISORS: �\ }`yam`—� I HEREBY CERTIFY THAT TI IiS IS A TRUE AND CORRECT
COPY OF AN ACTION TAKEN AND ENTERED ON
UNANIMOUS(ABSENT c ) MINUTES OF THE BOARD OF SUPERVISORS ON THE
AYES: NOES: � DATE SHOWN.
ABSENT: ABSTAIN: `
Contact: Mike I-Iollingsworth(313-2231)
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G:\Design\BOARD ORDERS\2006\bo5-23DBE agreement.doc ATTESTED
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JOHN CUL,kE ,CLERK OF THE BOARD OF
SUPERVISO
cc: E.Kuevor,CAO 1
County Counsel
Caltrans,via PWD c;
BY: 0 G DEPUTY
i
SUBJECT: CONSIDER approving Disadvantage Business Enterprise (DBE) Race—Neutral Implementation
. Agreement for Federal Highway Administration (FHWA) Funded Projects, Countywide.
DATE: May 23, 2006
PAGE: 2 of 2
FISCAL IMPACT:
There is no impact on the General Fund. Execution of the agreement is prerequisite to maintaining eligibility for
Federal funding for County highway and bridge projects.
REASONS FOR RECOMMENDATIONS AND BACKGROUND:
For many years the Federal Highway Administration (FHWA) has required public agencies as condition for
receiving federal highway, airport and transit funds to comply with federal regulations concerning Disadvantaged
Business Enterprises (DBE), in the administration of these federally funded projects. The most notable aspect of
these DBE regulations is the inclusion of mandatory DBE participation race and gender conscious goals into these
projects' construction and consultant contracts.
The Court of Appeals for the Ninth circuit recently held in the case of Western States Paving Co., Inc, v.
Washington State Department of Transportation,et al.,that race conscious goals must be limited to those parts of the
Country where DBE race and gender based measures are demonstrably needed. This court opinion affects all public
agencies' DBE programs in the nine (9) western states comprising the Ninth Circuit, including California.
In response to this opinion,the California Department of Transportation(Caltrans),which administers the Federal
Highway funds for all local agencies in California, held numerous public forums throughout-the State to gather
evidence in support of its DBE programs. On May 1, 2006, Caltrans determined that it was unable to gather
sufficient evidence to satisfy the criteria described in the Ninth Circuit Court's opinion and ordered that all local
agencies receiving Federal Highway funds to immediately adopt the Race Neutral Implementation Agreement.
Caltrans believes that this is a temporary directive and that it will be able to demonstrate a need for DBE goals.
Caltrans is currently contracting with a consultant to perform a state-wide analysis of the need for a DBE program.
It is anticipated that this study will be completed in May, 2007. At that time the County may be instructed by
Caltrans to revert its current DBE program.
CONSEQUENCES OF NEGATIVE ACTION:
If the Board does not take the recommended action, Caltrans will stop authorizing Federal funds earmarked for
County road and bridge projects, including an estimated $6,000,000 bridge replacement project scheduled for
advertising within the next 12 months.
Addendum to S.D. 2
May 23, 2006
On this day the Board approved the Disadvantaged Business Enterprise - Race Neutral
Implementation Agreement with California Department of Transportation (Caltrans) and
authorized the County Administrator to sign the agreement on behalf of the County, as
required for federally funded highway projects administered by the County.
Public Works Director Maurice M. Shiu presented this item.
Chair Gioia noted the Disadvantage Business Enterprise (DBE) Race—Neutral
Implementation Agreement for Federal Highway Administration(FHWA) Funded Projects
is required by the Federal Highway Administration as a condition of receiving federal
funds Chair Gioia asked Mr. Shiu for his recommendations on how the County can be
race-neutral based on this current legislation and still be proactive in the County's Small
Business program.
Mr. Shiu said the legislation only affects federally funded programs, which are not
compatible with the County's Small Business outreach program.
The Chair asked for public comment. The following person spoke:
Clarence Van Hook, resident of Richmond, to say he supports the Small
Business Enterprise program.
Chair Gioia said a year from now this legislation could be changed and the County could
then revisit this issue.
Chair Uilkema requested this issue be reviewed again when the County looks at their
outreach programs and requested Affirmative Action Director Emma Kuevor bring the
item to Internal Operations Committee.
By unanimous approval the Board of Supervisors took the following action:
APPROVED the Disadvantage Business Enterprise(DBE)Race—Neutral Implementation
Agreement for Federal Highway Administration (FHWA)Funded Projects, Countywide and
REFERRED the matter to Internal Operations Committee for further review.
DISADVANTAGED BUSINESS ENTERPRISE RACE-NEUTRAL
IMPLEMENTATION AGREEMENT
For the County of Contra Costa, hereinafter referred to as "RECIPIENT."
I Definition of Terms
The ten-ns 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.
• To ensure that only firms that frilly 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.
• 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. Ill
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.
1V Annual DBE Submittal Form (§26.21)
The RECIPIENT will provide to the Caltrans' District Local Assistance Engineer(DLAE) a
completed DBE Annual Submittal Form by June 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.
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 DBEs and small businesses;
providing the information in languages other than English, where appropriate).
5. Implementing a supportive services program to develop and improve immediate and long-
term business management, record keeping, and financial and accounting capability for
DBEs and other small businesses.
6. Providing services to help DBEs and other small businesses improve long-term
development, increase opportunities to participate in a variety of kinds of work, handle
increasingly significant projects, and achieve eventual self-sufficiency.
7. Establishing a program to assist new, start-up firms, particularly in fields in which DBE
participation has been historically low.
8. Assisting DBEs and other small businesses to develop their capability to utilize emerging
technology and conduct business through electronic media.
9. Implementing or developing a mentor-protege program.
VI Quotas (§26.43)
RECI.PIENT 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(DBELO). 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 direct, independent access to the County Administrator concerning DBE program matters.
The DBELO has a staff of 1 professional employee assigned to the DBE program on a full-time
basis and four collateral duty 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 1 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.
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 frilly 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
proj ect.
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 Remethes Act of 1986 (31 U.S.C. 3801 et seq.).
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/liq/bcp.
XI Required Contract Clauses (§§26.3, 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 CF.R., 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.
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 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 remethes of that Section. This requirement shall not be construed to limit or impair
any contractual, administrative, or judicial remethes, 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 Pavment of Withheld Funds to 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. Tile 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 remethes 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 remethes,
otherwise available to the contractor or subcontractor iui 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 RECTMiENT will advertise, award and administer DOT-assisted contracts in accordance
with the most current published Local Assistance Procedures Manual (LAPM).
y„/I,, ;J)o yc-e'A-
XV Bidders List(§26.11)
The RECIPIENT will create and maintain a bidders list, consisting of information about all DBE
and non-DBE firms that bid or quote on its DOT-assisted contracts. The bidders list will include
the name, address, DBE/non-DBE status, age, and annual gross receipts of the firms.
XVI Reporting to the DLAE
RECIPIENT will promptly submit a copy of the Local Agency Bidder-DBE Information (Exhibit
15 -G or Exhibit 10-0 of the LAPM) to the DLAE at the time of execution of consultant or
construction contract award.
RECIPIENT will promptly submit a copy of the Final Utilization of DBE participation to the
DLAE using Exhibit 17-F of the LAPM immediately upon completion of the contract for each
consultant or construction contract.
XVII Certification (§26.83(a))
RECIPIENT ensures that only DBE firms currently certified by the California Unified
Certification Program will participate as DBEs on DOT-assisted contracts.
XVIII Confidentiality
RECIPIENT will safeguard from disclosure to third parties, information that may' reasonably be
regarde s confidential business information consistent with federal, state, and local laws.
Date:
John ullen, Nilrity Administrator
Phone Number: (925) 335-1080
This California Department of Transportation's Disadvantaged Business Enterprise Program
Plan Implementation Agreement is accepted by: v .
Date:
[Signature of DLAE]
[Print Name of DLAE]
Distribution: (1)Original—DLAE
(2)Copy-local agency after signing by DLAE
DBE Race-neutral lmplementation Agreement for Local Agencies(05/01/06)
G:\Design\CT DBE Forms_Exhibits\RN Implementation\Implementation Agreement.doc
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