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08/21/2001, C3 - CITY DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
Council. MMugust 21, 2001 j agcnaa Repoat �N c3 CITY OF SAN LUI S O B I S P O FROM: Michael D. McCluskey, Director of Public Works Prepared By: Barbara Lynch, Civil Engineer SUBJECT: CITY DISADVANTAGED BUSINESS ENTERPRISE PROGRAM CAO RECOMIVIENDATION 1. Approve the Disadvantaged Business Enterprise Program for Fiscal Year 2001-02 for Federal Department of Transportation funded projects and authorize the Mayor to sign the program. 2. Adopt a resolution to authorize the CAO to approve annual goals and sign the City Disadvantaged Business Enterprise Program in the future. 3. Confirm the designation of the City as a Non-Certifying Agency for purposes of the Unified Certification Program. DISCUSSION Background Last year the City adopted a new Disadvantaged Business Enterprise (DBE) program. This program is required in order for the City to receive Federal Department of Transportation (DOT) funds. In the past the City has used these funds to assist with the construction of projects such as the Railroad Bike Path and the Higuera Bridge Rehabilitation. The City's program conforms to a standard or"model"program developed by the California Department of Transportation (Caltrans) for the DOT programs. Caltrans, as the administrator of Federal Highway funds, provides assistance and oversight of many of the programs and projects the City works on. This program does not affect expenditure of state or local funds. Each year the City must review the adopted DBE program and make any necessary revisions. Typically the only revision to the program is the annual goal. (See Attachment #1, Section XIV Overall Goals of the Program.) The program language itself is set by Caltrans in coordination with the DOT. Any significant language changes would come from them and be brought back to the City Council for review. The methodology for determining the goals is also approved by Caltrans. It is for these reasons, staff is recommending that in the future, the CAO be authorized to approve the annual goals and program. The goal is the percent of the dollar value of the Federally funded portion of the project the City can reasonably expect to be completed by a DBE. Example: Total Project City Share Federal Share DBE Expected $ value of work to be completed Cost (20%) (80%) goal by a DBE company $1,000,000 $200,000 $800,000 5% = 5% x $800,000 = $40,000 C 3-/ Council Agenda Report—City Disadvantaged Enterprise Business Program for 2001-02 Page 2 Public Works staff, using a method approved by Caltrans, has determine what the City can "reasonably expect"by way of DBE participation on individual projects. The overall annual goal is a composite of individual project goals. The project goals are established by determining how many DBE's actually do work on Federally funded City projects. Consideration is made for the type of work they specialize in and how that relates to the types of work in the project. For example, if a project were Federally funded landscape work and all the DBE's in the area specialize in concrete work, the project goal would be 0%. If, on the other hand, the project is primarily concrete work, the goal might be a very large percentage. This methodology and the resulting goal are outlined in more detail in Attachment #1, "Disadvantaged Business Enterprise Program &Methodology". Annual Overall Goal This year the annual goal is 5%. This is lower than last year's goal of 8% primarily because a local DBE concrete contractor is no longer in business. The annual goal is advertised in the media. The documentation is made available to the public for a comment period of 45 days prior to the final adoption in accordance with Federal Regulation. No comments have been received as of the date this.staff report was prepared. If comments are received between now and the Council meeting, they will be forwarded to the Council for review. Unified Certification Program Currently, Caltrans maintains a list of DBE's, which are certified. The City uses this list to confirm contractors are using actual DBE's on their projects as required. There are only a few large local agencies, which certify DBE's. The certification work is primarily done by Caltrans. Caltrans is in the process of implementing a new certification program, which will be the collective responsibility of all agencies receiving Federal funds. They have titled it the Unified Certification Program (UCP.) It is essentially an agreement that all agencies receiving Federal funds will recognize the DBE certifications of all other agencies. Any agency wishing to certify DBE's must have the necessary training to complete a certification. Agencies may opt to be a non-certifying agency;. In either case, as a certifying or non-certifying agency, there will be a fee established to support the maintenance of the database. The fee is estimated to be between $1,000 and $2,000 per year. The City is required to designate itself as a certifying or non- certifying agency in order to receive Federal funds. Staff recommends the Council confirm a designation as a non-certifying agency. The City staff is not trained, nor is the City a large enough agency to maintain the staff necessary to investigate businesses in order to certify them as DBE's. CONCURRENCES The proposed DBE Program goal and methodology has been reviewed and approved by Caltrans. The City has been authorized by them to proceed with final adoption of the goal. C 3-2 Council Agenda.Report—City Disadvantaged Enterprise Business Program for 2001-02 Page 3 FISCAL IMPACT Currently the City receives Federal money to support the transit system, alternative transportation, and to improve and maintain City bridges and roadways. The adoption and use of a DBE program is required to expend Federal money. Federal DOT funding is anticipated to be $3,500,000 in the upcoming year. The value of these Federal funds far outweighs any minor inflation of bid prices resulting from additional Federal requirements or the costs associated with participating in the certification program. Staff is recommending the fee to participate in the UCP be distributed among the Federally funded projects for the year in question. The City will also receive about$950,000 in Community Development Block Grant(CDBG)funds. CDBG funds are also Federal funds but are not from the DOT. Expenditure of CDBG funds will require conformance with DBE regulations. When the City expends CDBG funds it will go through a similar process. ALTERNATIVES A DBE program and membership in the UCP are only required if the City wishes to use Federal money provided by the DOT. If the City does not use this money then the program does not need to be adopted or implemented. ATTACIIMENTS Attachment#1 - Disadvantaged Business Enterprise Program &Methodology Attachment#2 - Resolution Attachment#3 - Declaration of Status Letter Available in the Council Office for Review: Cooperative Agreement for the Establishment of a United Certification Program Among All U.S. DOT Recipients in California gAstate&federal programs\city dbe program\2001 program\2001 car adopts.doc C3-3 ATTACHMENT 1 DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM FOR SAN LUIS OBISPO This Program is in accordance with Title 49 of the Code of Federal Regulations Part 26 City of San Luis Obispo Disadvantaged Business Enterprise Program Paae 1-13_ Revised July 2001 G3 -t f- DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM City of San Luis Obispo, California 1 Definitions of Terms The terms used in this program have the meanings defined in 49 CFR §26.5. II Objectives/Policy Statement (§§26.1, 26.23) The City of San Luis Obispo 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 San Luis Obispo,has received Federal financial assistance from the DOT, and as a condition of receiving this assistance, the City of San Luis Obispo will sign an assurance that it will comply with 49 CFR Part 26. It is the policy of the City of San Luis Obispo 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. The Director of Public Works has been delegated as the DBE Liaison Officer. In that capacity, The Director of Public Works 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 San Luis Obispo in its financial assistance agreements. with the California Department of Transportation (Caltrans). City of San Luis Obispo has disseminated this policy statement to the City Council 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. III Nondiscrimination (§26.7) City of San Luis Obispo 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. City of San Luis Obispo Disadvantaged Business Enterprise Program Page 2-13 Revised July 2001 C3 -� ATTACHMENT 1 In administering its DBE program, the City of San Luis Obispo 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 (§26.21) City of San Luis Obispo will continue to carry out this program until the City of San Luis Obispo has established a new goal setting methodology or until significant changes to this DBE Program are adopted. City of San Luis Obispo will provide to Caltrans a proposed overall goal and goal setting methodology and other program updates by June 1 of every year. V Quotas (§26.43) City of San Luis Obispo will not use quotas or set asides in any way in the administration of this DBE program. VI DBE Liaison Officer (DBELO) (§26.45) City of San Luis Obispo has designated the following individual as the DBE Liaison Officer: Michael McCluskey, 955 Morro Street, San Luis Obispo, CA. 93401, 805-781-72001 mmcclusk.slocity.org . In that capacity, Michael McCluskey is responsible for implementing all aspects of the DBE program and ensuring that the City of San Luis Obispo complies with all provisions of 49 CFR Part 26. This is available on the Internet at osdbuweb.dot.gov/main.cfm. Mr. McCluskey has direct, independent access to the City Administrative Officer concerning DBE program matters. The DBELO administers the Public Works Department that has 5 engineers and a transit manager available to devote a part of their time to this program. An organization chart displaying the DBELO's position in the organization is found in Exhibit 1 to this program. 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 DBE's 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 San Luis Obispo's progress toward goal attainment and identifies ways to improve progress. 7: Participates in pre=bid meetings. 8. Advises the CEO/goveming body on DBE matters and achievement. 9. Participates with the legal counsel and project director to determine contractor compliance with good faith efforts. 10.Provides DBEs with information and assistance in preparing bids, obtaining bonding and insurance. City of San Luis Obispo Disadvantaged•Business Enterprise.Program Page 3-13 Revised July 2001 3 —6 11.Plans and participates in DBE training seminars. 12.Provides outreach to DBEs and community organizations to advise them of opportunities. VII Federal Financial Assistance Agreement Assurance (§26.13) City of San Luis Obispo will sign the following assurance, applicable to 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 peogram, the Department may impose sanctions as provided for underpart 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.). VIII DBE Financial Institutions It is the policy of the City of San Luis Obispo 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 DBE Liaison Officer. The Caltrans Disadvantaged Business Enterprise Program may offer assistance to the DBE Liaison Officer. IX Directory (§26.31) City of San Luis Obispo will refer interested persons to the DBE directory available from the CalTrans Disadvantaged Business Enterprise Program website at www.dot.ca.gov/hq/bep. X Overconcentration (§26.33) City of San Luis Obispo has not identified any types of work in DOT-assisted contracts that have an overconcentration of DBE participation. If in the future City of San Luis Obispo identifies the need to address overconcentration, measures for addressing overconcentration will be submitted to the DLAE for approval. XI Business Development Programs (§26.35) City of San Luis Obispo Disadvantaged Business Enterprise Program Page 4-13 Revised July 2001 317 ATTACHMENT 1 City of San Luis Obispo does not have a business development or mentor-protege program. If the City of San Luis Obispo 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 (§§26.13, 26.29) Contract Assurance City of San Luis Obispo ensures that the following clause is placed in every DOT-assisted contract and subcontract: 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. Prompt Payment City of San Luis Obispo 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 San Luis Obispo. 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 San Luis Obispo. This clause applies to both DBE and non-DBE subcontractors Release of Retainage 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 from the above referenced time frame may occur only for good cause following written approval of the City of San Luis Obispo. This clause applies to both DBE and non-DBE subcontractors. XIII Monitoring and Enforcement Mechanisms (§26.37) The City of San Luis Obispo 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: City of San Luis Obispo Disadvantaged Business Enterprise Program Page 5-13 Revised July 2001 C ��� After Contract Award After the contract award the City of San Luis Obispo 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. Preconstruction Conference A preconstruction conference will be scheduled between the RE and the contractor or their 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 completed "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 and 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, the 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. (For Street and Highway Projects, subcontractors performing less than $10,000 worth of work need not be mentioned.) 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 Monitoring The RE will ensure 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. City-of San Luis Obispo Disadvantaged Business Enterprise Program Page 6-13 Revised July 2001 - ATTACHMENT 1 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 RE/Contract Manager will request a letter from the contractor explaining why substitution is needed. The RE/Contract 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 RE/Contract Manager agrees to the substitution, the RE/Contract Managerwill 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 effort to the RE/Contract Manager for local agency consideration. If there is any doubt in the RE/Contract Manager's mind regarding the requested substitution, the RE/Contract Manager may contact the DLAE for assistance and direction. Record Keeping and Final Report Utilization of Disadvantaged 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. 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 City of San Luis Obispo Disadvantaged Business Enterprise Program Page 7-13 Revised July 2001 C 3 -/ 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 on 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/hq/bep and keep the RE informed of changes that affect the contract. The RE will require the contractor to act in accordance with existing contractual commitments regardless of decertification. The DLAE will use the PS&E checklist to monitor the City of San Luis Obispo's commitment to require bidders list information to be submitted to the City of San Luis Obispo 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 San Luis Obispo will bring to the attention of the DOT through the DLAE 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 §26.109. City of San Luis Obispo also will consider similar action under our own legal authorities, including responsibility determinations in future contracts. XIV Overall Goals (§26.45) Amount of-Goal City of San Luis Obispo's overall goal for the Federal fiscal year FY 2001. is the following: 5% of the Federal financial assistance in DOT-assisted contracts. This overall goal is broken down into 4% race-conscious and 1% race-neutral components. Methodology Step One- Bidders list The City has conducted an analysis of bidders on bids received on recent contracts of similar nature to those projects proposed to be carried out in the next fiscal year. Where the City has not conducted such work it has recruited information from similar agencies that would attract City of San Luis Obispo Disadvantaged Business Enterprise Program Page 8-13 Revised July 2001 C3 -/ 1 ATTACHMENT 1 the same bidders we could expect. Where neither the City or other local agency had completed similar work, a comparison was made between the number of DBE companies and the number of companies total who perform the specific type of work in the area. A ratio and goal was developed from that information. Step Two-Evidence of ability of DBE's to perform. The City developed the attached chart listing the various kinds of work to be expected during the next fiscal year. The number of DBE's bidding each kind of work was identified and a projection made of how many dollars of work could be accomplished by available DBE's based upon the ratio of DBE business to total business in that field. A summation of the total number of dollars of work that could be handled by DBE's was compared to the total number of dollars for all work. The relationship shows that DBE's should be able to perform 5% of the value of the work. See Exhibit 1 Goal Establishment Methodology.. Breakout of Estimated Race-Neutral and Race-Conscious Participation The City will attempt to encourage DBE participation in its bids by including references to the CalTrans DBE directory in its notice to bidders. Plans and specifications will routinely be mailed to plans houses within the County and to adjacent Counties, Monterey, Santa Barbara, Ventura, Los Angeles, Contra Costa, Fresno, Tulare and Kern. Plans will also be sent to Bid America.com for display on the intemet.. Notice to Bidders will be.displayed on the City's intemet home page. It is expected that this circulation of plans will result in 1% DBE participation. 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 DOT-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 San Luis Obispo 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 San Luis Obispo's principal office for 30 days following the date of the notice,and informing the public the City of San Luis Obispo will accept comments 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. City of San Luis Obispo Disadvantaged Business Enterprise Program Page 9-13 Revised July 2001 , C 3-l� 1 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 San Luis Obispo'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 San Luis Obispo may begin using the overall goal on October 1 of each year. XV Contract Goals (§26.51) City of San Luis Obispo will use contract goals to meet any portion of the overall goal City of San Luis Obispo 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 in 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 of 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 of a DOT-assisted contract. XVI Transit Vehicle Manufacturers (§26.49) If DOT-assisted contracts include transit vehicle procurements, City of San Luis Obispo 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 San Luis Obispo will direct the transit vehicle manufacturer to the subject requirements located on the Internet at httpJ/osdbuweb.dot.gov/programs/dbe/dbe.htm. XVII Good Faith Efforts (§26.53) Information to be Submitted City of San Luis Obispo treats bidders'/offerors' 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 955 Morro Street, San Luis Obispo, CA. 93401 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 description of the work that each DBE will perform: City of San Luis Obispo Disadvantaged Business Enterprise Program Page 10-13 Revised July 2001 z C 3`13 ATTACHMENT 1 3. The dollar amount of the participation of each DBE firm participation 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: Director of Public Works. City of San Luis Obispo 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 San Luis Obispo that it is not responsive because it 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: City Administrative Officer, 990 Palm Street, San Luis Obispo, CA. 93401, 805-781-7100. The reconsideration official will not have played any role in the original determination that the bidder/offeror did not make document sufficient good faith efforts. As part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it menthe goal or made adequate good faith efforts to do so. The bidder/offeror will have the opportunity to meet in person with the reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do. The City of San Luis Obispo will send the bidder/offeror 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 San Luis Obispo 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. City of San Luis Obispo Disadvantaged Business Enterprise Program Page 11-13 Revised Juty 2001 s C 3-/ti In this situation, the prime contractor will be required to obtain City of San Luis Obispo 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 San Luis Obispo contracting office will issue an order stopping all or part of payment/work 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 (§26.55) City of San Luis Obispo 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 XI, A. "After Contract Award." XIX Certification (§26.83(a)) City of San Luis Obispo ensures that only DBE firms currently certified on the CalTrans' directory will participate as DBEs in our program.. XX Information Collection and Reporting Bidders List The City of San Luis Obispo 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. Monitoring Payments 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 San Luis Obispo, Caltrans or DOT. This reporting requirement also extends to any certified DBE subcontractor.. Payments to DBE subcontractors will be reviewed by the City of San Luis Obispo to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation. Reporting to CalTrans City of San Luis Obispo - Final utilization of DBE participation will be reported to the DLAE using Exhibit 17-F of the CalTrans' LAPM. City of San Luis Obispo Disadvantaged Business Enterprise Program Page 12-13 Revised July 2001 C3/S ATTACHMENT 1 Confidentiality City of San Luis Obispo will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal, state, and local laws. Allen Settle, Mayor Date: This Disadvantaged Business Enterprises Program is accepted by: Caltrans District Local Assistance Engineer Date: Exhibits: 1 —City Organization 2—Goal Establishment Methodology 3—Project and Overall Annual Goal gAstate 8 federal Programftlry dbe program=s program12001 program.doe City of San Luis Obispo Disadvantaged Business Enterprise Program Page 13-13 Revised July 2001 C3 -ll� CITY ORGANIZA PION City Council-Legislative Body Awarding Body. City Administrative Officer Reconsideration Official . Public Works Director Michael McCluskey- DBE Liaison Officer City Engineer Professional Staff-5 Engineers and Transit Manager in addition to Contract Managers and Project Inspectors. City of San Luis Obispo Disadvantaged Business Enterprise Program Exhibit 1 Revised July 2001 ATTACHMENT i Goal Establishment Methodology Step 1: ■ Develop a list of projects and work types expected to be advertised this Federal fiscal year(Oct 1 — Sept 30) Step 2: ■ Develop a list of bidders from previous Federally Funded projects. (See "1999-00 Bidders List" attached) Step 3: ■ Develop a list of bidders with the assistance of other agencies for those projects expected to be done for which we have no previous bidders. (See "Other bidders" attached) Step 4: ■ Develop a list of potential bidders from the 805 areacode area for those projects of a type not done either by the City or other nearby local agencies. (See "805 Bidders List" attached) Step 5: (See "2001-02 Projects" attached) ■ Break the upcoming projects into work types. ■ Estimate the cost of the individual components. ■ Develop a ratio of the number of DBE's which.do this type of work to the total number of bidders for this type of work from the information developed in Steps 2 -4. ■ Multiply that ratio by the dollar value for the work to obtain the DBE dollar share. ■ Divide the DBE dollar share by the total Federal Dollars for the project to get the project goal. ■ Divide the sum of the DBE dollar shares in each project by the total Federal Dollars. for all the projects to get the Overall DBE Annual Goal. g.waM a tgWmI Vogmm%c4 Ebe pWm&2WI pW w=l methodology dw � a m N �t m _ O O 0O1i �. O � q k C� O � fn (� C � m O N E CD m m � N U W 0 C t y m m m m U W c E y p z c ci m m m T' c W H c c7 m `c -e U c p W o v Q m o LL t° w e °� H CF. «m a co 0 Y m C C E V m O w C t w m m ¢ N _ m N W m ca 7 a m 0 f0 ° L LL .O. 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C C 000 C to d) U z Z 353 Q BE LL O O O m Lo J O O lL O N Q W 0 O Q T J J W Q O W Z tl - W 0 D O Y U ¢ LL LL ¢ Z O W �3 a � ATTACHMENT 1 DBE Goal Establishment by Project October 2001 -2002 Federal Projects #of businesses DBE to Total DBE$ Project Project Federal$ DBE's Total Ratio Share Goal LOVR Medians 18% - Design. $17,000 2 13 15% $2,615 -General, Concrete $150,545 1 7 14% $21,506 -- Signs&Striping $5,518 2 2 100% $5,518 -Landscaping $126,937 1 5 20% $25,387 No prior Federal Landscape proiect in area bidder lists-used 805 area code DBE's Foothill Bridge 1% --Design, Env, ROW" $212,000 0 2 0% $0 --Bridge Construction $735,000 0 3 0% $0 --Signs&Striping $5,000 2 1 2 1 100% $5,000 include in construction goal due to timing of design contract Bus Wash --Construction $300,000 0 -3 0% $0 0% Freight Building 0% - Renovation construction $389,400 0 3 0% $0 Mid-Higuera Widening 0% -Environmental $74,500 0 2. 0% $0 -Acquisition $75,600 0 1 0% $0 Downtown Transfer Center 10% - Flatwork $380,000 1 7 14% $54,286 -Striping/Signing $5,000 2 2 100% $5,000 --Building $60,000 0 3 0% $0 -General $175,000 0 5 0% $0 Transit upgrades 4% -Voice Enunciators $208,034 . 0 9 0% $0 ---Smart Bus Stop $94,000 0 11 0% $0 -Wheel Chair Lift $118,015 0 3 0% $0 -- Fare Secu ' $318,015 1 10 10% $31,802 Transit Plan 0% -Consultant Services $30,000 0 5 0% 0 Crosswalk Lighting 28% -Equipment $20,000 1 2 50% $10,000 -Construction $16,000 0 1 1 0% $0 Total Federal Dollars:. $3,515,564 Total DBE Dollars: $161,114 DBE Annual Goal: 5% =DBE Dollars/Federal Dollars 01 Goal Settingxls : 2001-02 Projects 611/2001 : 4:21 PM Page 1 of 1 c3-aa ATTACHMENT 2 RESOLUTION NO. (2001 Series) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO AUTHORIZING THE CITY ADMINISTRATIVE OFFICER TO SIGN AS AGENT FOR THE CITY TO ADOPT ANNUAL DISADVANTAGED BUSINESS ENTERPRISE (DBE) GOALS AND SIGN THE ANNUAL PROGRAM. WHEREAS, the City of San Luis Obispo uses money from the Federal Department of Transportation;and WHEREAS, use of such funds requires the adoption and implementation of a Disadvantaged Business Enterprise Program and program goals; and WHEREAS, the Program requires the revision of goals every year based on the project work expected to be completed; and WHEREAS, the revision to the annual goals is done by a standard method, and approved by the State agent for the Federal Department of Transportation, BE IT RESOLVED that the City Council of the City of San Luis Obispo, authorizes the City of San Luis Obispo, City Administrative Officer to approve the annual goals and sign the annual program to allow the City to continue to receive Federal Department of Transportation Funds. Upon motion of seconded by And on the following roll call vote: AYES: NOES: ABSENT: The foregoing resolution was adopted this day of 2001. Mayor Allen Settle ATTEST: Lee Price, City Clerk APPROVED AS TO FORM: vll*,Uou� f G. or s , City Attorney s r �i dea Ves tor wo stgnxbc C3-d3 ' - - ATTACHMENT 3 I��������►� ���ii�����►IIII�llllh��111°° IIII� city tuis* oBispo 955 Morro Street • San Luis Obispo, CA 93401 July 30, 2001 Department of Transportation Civil Rights Program — MS 79 1820 Alhambra Boulevard Sacramento, CA 95816 To: United Certification Program From: City of San Luis Obispo, Recipient 955 Morro Street San Luis Obispo, CA 93401 Recipient hereby acknowledges and agrees that: (1) As a recipient of Federal Financial Assistance from the U.S. Department of Transportation (DOT), the City has an established Disadvantaged Business Enterprise (DBE) program in accordance with 49 CFR Part 26. (2) By this letter, the City of San Luis Obispo officially becomes a signatory to the "Cooperative Agreement for the Establishment of a Unified Certification Program Among All U.S. DOT Recipients in Califomia," dated April 1, 2001. (3) In accordance with said agreement, the City hereby makes a declaration to become either a certifying UCP member or a non-certifying member. (a) A certifying UCP member maintains DBE certification processes including reviewing DBE applications, conducting site visits and making decisions on DBE status, processing annual updates, maintaining DBE certification files, and conducting appeal and third party challenge hearings. A certifying UCP member is responsible for providing certification information and updates to Caltrans for inclusion in the DBE database. (b) A non-certifying UCP member does not process DBE certifications for inclusion in the DBE database, but will conduct site visits if requested. (4) UCP members may be requested to contribute funds to support the UCP. (5) All UCP members will accept the DBE status of firms included in the DBE database for use in their contracting activities. Based on the foregoing, the City of San Luis Obispo hereby declares its status as a non-certifying UCP member. The City understands it may change its status upon submission of a new declaration letter. Director of Public Works Date ¢\=m&federal pmgramstdy dbe program12001 programV ucp letfer.doc OThe City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities. Telecommunications Device for the Deaf(80%781-7410. -