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HomeMy WebLinkAboutMINUTES - 03062007 - C.1 sE..` Contra TO: BOARD OF SUPERVISORS FROM: MAURICE M. SHIU, PUBLIC WORKS DIRECTOR Costa DATE: March 6, 2007 �o.` '__ .•�r` o �� V. -COUT1. SUBJECT: APPROVE an amended Disadvantage Business Enterprise (DBE) Race—Neutral Implementation Agreement for Federal Highway Administration (FHWA) Funded Projects, Countywide. (All Districts) (Federal Highway Funds) SPECIFIC REQUEST(S)OR RL•:COMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: APPROVE an amended Disadvantaged Business Enterprise - Race Neutral Implementation Agreement with California Department of Transportation(Caltrans)which was originally approved by the Board of Supervisors on May 23,2006 and AUTHORIZE the County Administrator to sign the amended agreement on behalf of the County, as required for federally funded highway projects administered by the County. CONTINUED ON ATTACHMENT: ❑X SIGNATURE: RECOMMENDATION OF COl NTY ADMINISTRATOR RECOMMENDATION OF BOARD CONIMI T �.� APPROVE OTHER SIGNATURI:(S) ACTION OI;BOA&i �Q��-h ¢� / APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: I HEREBY CERTIFY TIIATTHIS IS A"TRUE AND CORRECT ./ COPY OF AN ACTION TAKEN AND ENTERED ON V UNANIMOUS(ABSENT /�©Y!(, ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DA'Z'E SIIOWN. ABSENT: ABSTAIN: Contact: Mike Hollingsworth(313-2231) MI,H:Gll:kp G:\Design\BOARD OR[)FIZS\2007\bo3-6DBI.:agreement-amend ment.doe ATTESTED JOHN CULLEN,CLERK OF TI IE BOARD OI' SUPERVISORS cc: E.Kuevor,CAO County Counsel Caltrans,via PWD BY: ,DEPUTY SUBJECT: APPROVE an amended Disadvantage Business Enterprise (DBE) Race—Neutral Implementation Agreement for Federal Highway Administration (FHWA) Funded Projects, Countywide. (All Districts) DATE: March 6, 2007 PAGE: 2 of 2 FISCAL IMPACT: There is no impact on the General Fund. Execution of the amended agreement is prerequisite to maintaining eligibility for Federal funding for County highway and bridge projects. REASONS FOR RECOMMENDATIONS AND BACKGROUND: On May 1,2006 Caltrans began implementing a race-neutral DBE program due to a federal court decision. On May 23, 2006 the Board of Supervisors approved a DBE Race-Neutral Implementation Agreement for Local Agencies. This agreement was required by Caltrans to maintain eligibility for federal highway funds. Caltrans issued a revised Local Programs Procedures (LPP) 06-06, effective November 14,2006, which modified the Caltrans DBE program and thus required changes to our race-neutral implementation agreement. Caltrans has furnished the local agencies a revised DBE Race-Neutral Implementation Agreement. Caltrans is requiring that all local agencies execute this updated version of the agreement in order to continue receiving federal funding for all eligible projects. The agreement is revised to read identically to the federal DBE regulations and to mandate how local agencies write their contract specifications to clarifl y the race-neutral provisions to Contractors. 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. DISADVANTAGED BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENTATION AGREEMENT For the County of Contra Costa, 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 DOTE assisted contracts. • To ensure that their annual overall DBE participation percentage is narrowly tailored, in accordance with applicable law. • To ensure that only firms that fully meet 49 CFR, Part 26 eligibility standards are permitted to participate as DBEs. • To help remove barriers to the participation 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. 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(DLAE) a completed Local Agency DBE Annual Submittal Form (Exhibit 9-13) 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 using race-neutral means of facilitating DBE participation. Race-neutral DBI: participation includes any time a DBE wins a prime contract through customary competitive procurement procedures, is awarded a subcontract on a prime contract that does not carry a DBE goal, or even if there is a DBE goal, wins a subcontract from a prime contractor that did not consider its D13E status in making the award (e.g., a prime contractor that uses a strict low-bid system to award subcontracts). Race-neutral means include, but are not limited to, the following: 1. Arranging solicitations,times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate DBE, and other small businesses,participation (e.g., unbundling large contracts to make them more accessible to small businesses, requiring or encouraging prime contractors to subcontract portions of work that they might otherwise perform with their own forces); 2. Providing assistance in overcoming limitations such as inability to obtain bonding or financing (e.g., by such means as simplifying the bonding process, reducing bonding requirements, eliminating the impact of surety costs from bids, and providing services to help DBEs, and other small businesses, obtain bonding and financing); 3. Providing technical assistance and other services; 4. Carrying out information and communication programs on contracting procedures and specific contract opportunities (e.g., ensuring the inclusion of DBEs, and other small businesses, on recipient mailing lists of bidders; ensuring thedissemination to bidders on prime contracts_of..lists of potential subcontractors; provision of information in languages other than English, where appropriate); 5. Implementing a supportive services program to develop and improve immediate and long-term business management, record keeping, and financial and accounting capability for DBEs and other small businesses; 6. Providing services to help DBEs, and other small businesses, improve long-term development, increase opportunities to participate in a variety of types of work, handle increasingly significant projects, and achieve eventual self-sufficiency; 7. Establishing a program to assist new, start-up firms, particularly in fields in which DBE participation has historically been low; 8. Ensuring distribution of your DBE directory,through print and electronic means,to the widest feasible universe of potential prime contractors; and 9. Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and conduct business through electronic media. V1 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 Js 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 frill-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 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 encourageparticipation through race-neutral means. 6. Participates in pre-bid meetings. 7. Advises the CEO/governing body on DBE matters and DBE race-neutral issues. 8. Provides DBEs with information and recommends sources to assist in preparing bids, obtaining bonding and insurance. 9. Plans and participates in DBE training seminars. 10. Provides outreach to DBEs and community organizations to fully advise them of contracting opportunities. VIII Federal Financial Assistance Agreement Assurance (§26.13) RECIPIENTwillsign 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 sea 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.). 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. 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. "Che 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 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 either(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 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. 3. The a0ency 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 ►ponies withheld in retention from all subcontractors within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Any delay or postponement of payment may take place only for good cause and with the agency's prior written approval. Any violation of these provisions shall subject the violating prime contractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of: a dispute involving late payment or nonpayment by the contractor; deficient subcontractor performance; and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors. XII 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). XIII 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. XIV Reporting to the DLAE RECIPIENT will promptly submit a copy of the Local Agency Bidder-DBE Information (Exhibit 15-G "Local Agency Bidder-DBE (Construction Contracts)—Information" or Exhibit 10-0"Focal Agency Proposer/Bidder-DBE(Consultant Contracts)-Information" 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 "Final Report—Utilization of Disadvantaged Business Enterprises(DBE), First-Tier Subcontractors" of the LAPM immediately upon completion of the contract for each consultant or construction contract. XV 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. XVI Confidentiality RECIPIENT will safeguard from disclosure to third parties, information that may reasonably be regarded as confidential business information consistent with federal, state, and local laws. By _�� (M LJL� John ullen, County Administrator Phone Number: (925)335-1080 This California.Department of Transportation's Disadvantaged Business Enterprise Program Plan Implementation Agreement is accepted by: Date: [Signature of DLAE] [Print Name of DLAE] Distribution: (1)Original DLAE (2)signed copy by the DLAE—Local Agency DBE Race-neutral Implementation Agreement for Local Agencies(05/01/06) G:\Dcsign\CTDBF Forms_Exhibits\RN Implementation\lmplemcntation Agreement(revised by LPP06-06).doc o CD r- C)L. 0 0 C j5) o (J) 0 73 Ix G et Cc) o co is CD 0 0 0 Q. 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