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Resolution Number 04-09-07-01RESOLUTION NO. 04-09-07-01 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, UPDATING THE CITY DISADVANTAED BUSINESS ENTERPRISE (DBE) PROGRAM FOR FISCAL YEAR 2004- 2005. WHEREAS, the City of San Juan Capistrano does periodically apply for Federal Program funding; and, WHEREAS, on the 6 day of February 2001, the City of San Juan Capistrano approved the implementation of a City Disadvantaged Business Program by Resolution No. 01-02-06-02; and, WHEREAS, such program now is required to be updated; and, WHEREAS, the City of San Juan Capistrano adopts 8% as its annual goal for Fiscal Year 2004-2005; and, WHEREAS, Exhibit "A" to this resolution provides the supportive information in determining the City of San Juan Capistrano's DBE goal; and, WHEREAS, The City of San Juan Capistrano's DBE Program goals were duly noticed in the Capistrano Valley News and the Los Angeles Times. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby update the City Disadvantaged Business Enterprise (DBE) Program for Fiscal Year 2004-2005. PASSED, APPROVED, AND ADOPTED this 7`" day of September 2004. 09-07-2004 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 04-09-07-01 was duly adopted by the City Council of the City of San Juan Capistrano at a regular meeting thereof, held the 7`" day of September 2004, by the following vote AYES: COUNCIL MEMBERS: Allevato, Bathgate, Swerdlin, Hart & Mayor Soto NOES: COUNCIL MEMBERS: None ABSTAIN: COUNCIL ME BERS: None MARGARET R. MONAHAN, City Clerk - 2 09-07-2004 y This Program is in accordance with Title 49 of the Code of Federal Regulations Part 26. MODEL DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM City of San Juan Capistrano I 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 Juan Capistrano 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 Juan Capistrano has received federal financial assistance from the DOT, and as a condition of receiving this assistance, the City of San Juan Capistrano will sign an assurance that it will comply with 49 CFR Part 26. It is the policy of the City of San Juan Capistrano 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 Mr. Bill Huber, Director of Engineering has been delegated as the DBE Liaison Officer. In that capacity, Mr. Huber 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 Juan Capistrano in its financial assistance agreements with the California Department of Transportation (Caltrans). City of San Juan Capistrano 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. III Nondiscrimination (§26.7) City of San Juan Capistrano 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 San Juan Capistrano 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 Juan Capistrano will continue to carry out this program until the City of San Juan Capistrano has established a new goal setting methodology or until significant changes to this DBE Program are adopted. City of San Juan Capistrano 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 Juan Capistrano will not use quotas or set asides in any way in the administration of this DBE program. VI DBE Liaison Officer (DBELO) (§26.25) City of San Juan Capistrano has designated the following individual as the DBE Liaison Officer: Mr. Bill Huber, Director of Engineering, City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA, 92675 (949)493-1171 bhuber@sanjuancapistrano.org. In that capacity, Mr. Huber is responsible for implementing all aspects of the DBE program and ensuring that the City of San Juan Capistrano complies with all provisions of 49 CFR Part 26. This is available on the Internet at osdbuweb.dot.gov/main.cfin. Mr. Huber has direct, independent access to Mr. Dave Adams, City Manager concerning DBE program matters. The DBELO has a staff of 2 professional employees assigned to the DBE program on a full-time basis and one support personnel who devotes a potion 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. 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 San Juan Capistrano'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. 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 Agreement Assurance (§26.13) City of San Juan Capistrano 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 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.). VIII DBE Financial Institutions Itis the policy of the City of San Juan Capistrano 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 Juan Capistrano will refer interested persons to the DBE directory available from the Caltrans Disadvantaged Business Enterprise Program website at www.dot.ca. og v/hglbgp. X Overconcentration (§26.33) City of San Juan Capistrano has not identified any types of work in DOT-assisted contracts that have a overconcentration of DBE participation. If in the future City of San Juan Capistrano 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 Juan Capistrano does not have a business development or mentor-prot6g6 program. If the City of San Juan Capistrano 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 Juan Capistrano 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 Juan Capistrano 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 Juan Capistrano. 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 Juan Capistrano. 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 Juan Capistrano. This clause applies to both DBE and non -DBE subcontractors. XIII Monitoring and Enforcement Mechanisms (§26.37) The City of San Juan Capistrano 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 San Juan Capistrano 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-I 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 Monitorin 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. 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 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 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 Enterorises 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 the form "Final Report - Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors" (Exhibit 17-F) and will be submitted to the DLAE attached to the Report of Expenditures. The RE will compare the completed "Final Report -Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors" form to the contractor's completed "Local Agency Bidder -DBE - Information" (Exhibit 15-G) and, if applicable, to the completed "Subcontracting Request" (Exhibit 16-B). The DBEs shown on the completed "Final Report -Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors" form 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 "Local Agency Bidder -DBE -Information" form 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 "Final Report -Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors" form. The explanation will be attached to the completed "Final Report -Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors" form 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.goy/ha/bo 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 Juan Capistrano's commitment to require bidders list information to be submitted to the City of San Juan Capistrano 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 Juan Capistrano 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 Juan Capistrano 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 Juan Capistrano's overall goal for the federal fiscal year FFY 2004/2005 is the following: 8% race -conscious and 0% race -neutral components. Methodolog Before working on this section, refer to the two step process and choice of methods in Section 9.4 of this Chapter in the LAPM. Breakout of Estimated Race -Neutral and Race -Conscious Participation Before working on this section, refer to race -neutral and race -conscious in Section 9.4 of this Chapter in the LAPM. 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 Juan Capistrano 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 Juan Capistrano'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. The notice must be published in general circulation media and available minority -focused media and trade association publications. 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 San Juan Capistrano'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 Juan Capistrano may begin using the overall goal on October 1 of each year. If there is a design build please refer to Appendix B of this Model DBE Program. XV Contract Goals (§26.51) City of San Juan Capistrano will use contract goals to meet any portion of the overall goal City of San Juan Capistrano 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 will include transit vehicle procurements, City of San Juan Capistrano 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 Juan Capistrano will direct the transit vehicle manufacturer to the subject requirements located on the Internet at http://osdbuweb.dot.goy/programs/dbe/dbe.htm. XVII Good Faith Efforts (§26.53) Information to be Submitted City of San Juan Capistrano 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 City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 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; 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: Mr. Bill Huber, Director of Engineering, City of San Juan Capistrano, 32400 Paseo Adelanto, San Juan Capistrano, CA 92675, (949) 493-1171, bhuber@sanjuancapistrano.org. City of San Juan Capistrano 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 Juan Capistrano 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 Mr. Bill Huber, Director of Engineering, City of San Juan Capistrano, 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 (949) 493-1171, bhuber@sanjuancapistrano.org. 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 met the 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 so. The City of San Juan Capistrano 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 Renlaced on a Contract City of San Juan Capistrano 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 San Juan Capistrano 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 Juan Capistrano 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 Juan Capistrano 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. Also, refer to XIII. "After Contract Award." XIX Certification (§26.83(a)) City of San Juan Capistrano ensures that only DBE fines currently certified on the Caltrans' directory will participate as DBEs in our program. XX Information Collection and Reporting Bidders List The City of San Juan Capistrano will 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 Juan Capistrano, 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 San Juan Capistrano to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation. R_pe orting to Caltrans City of San Juan Capistrano - Final utilization of DBE participation will be reported to the DLAE using Exhibit 17-F of the Caltrans' LAPM. Confidentiality City of San Juan Capistrano will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with federal, state, and local laws. Date: Dave Adams, City Manager This Disadvantaged Business Enterprises Program is accepted by: Date: Alan Williams, DLAE — District 12 APPENDIX A TO PART 26 -- GUIDANCE CONCERNING GOOD FAITH EFFORTS 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. 11. 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 quantitative formulas is not required. III. The Department also strongly cautions you against requiring that a bidder meet a contract goal (i.e., obtain a specified amount of DBE participation) in order to be awarded a contract, even though the bidder makes an adequate good faith efforts showing. This rule specifically prohibits you from ignoring bona fide good faith efforts. W. 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 DBEs who 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. C. Providing interested DBEs with adequate information 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 negotiation 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 firms 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 ability or 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 determining 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 met 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. 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 /Policy Statement (§§26.1, 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 the awarding authority setting forth the facts constituting the emergency or necessity. The written public record of the awarding authority/Agency as to either emergency or necessity is attached hereto (See Appendix Cfor sample). XIII Monitoring and Enforcement Mechanisms (§26.37) 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 ofprogress reports 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 ofgood faith efforts, 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. At the end of the first paragraph below "Preconstruction Conference", add the following sentence: The contractor will promptly provide the Agency with the information required by the form entitled "Local Agency DBE Information" upon selection of any DBE 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 a substitution. At the end of the fourth paragraph below "Construction Contract Monitoring", add the following paragraph: The contractor will provide DBE Progress Reports to the Agency with each invoice and will 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 DBE 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 (§26.53) items: At the end of the third paragraph below "Information to be Submitted", add the following 7. A DBE Performance Plan containing a detailed description of the design - build contractor's planned methodology for achieving the DBE goal stated in the contract, including a description of the good faith efforts the design -build contractor intends to undertake to achieve that goal. 8. A design -build proposal must also include an affidavit that the proposer will either attain the DBE goals for the design -build contract or will exercise good faith efforts 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 DBE Performance Plan as part of a responsive proposal and good faith efforts. [Signature of Local Agency Recipient's Chief Executive Officer] Date: This Disadvantaged Business Enterprise Program for design -build contracts is accepted by: [Signature of DLAE] Date: APPENDIX C RESOLUTION OF THE (Agency Name) REGARDING NECESSITY OR EMERGENCY FOR SUBSEQUENT SUBCONTRACTOR IDENTIFICATION 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) (Agency Letterhead) ANNUAL OVERALL GOAL INFORMATION TO: CALTRANS DISTRICT 12 District Local Assistance Engineer The amount of overall goal, methodology, breakout of estimated race -neutral and race -conscious participation, and any DBE program updates are presented herein in accordance with Title 49 of the Code of Federal Regulations Part 26, and as described in the Local Assistance Procedures Manual, latest edition. The City of San Juan Capistrano submits our annual overall goal information (and any needed updates of our DBE program) for your review and comment. We propose an annual overall DBE goal of8 % for the Federal Fiscal Year (FFY) 2004/2005, beginning on October 1, 2004 and ending on September 30, 2005. I. DOT -ASSISTED CONTRACTING PROGRAM FOR FFY 2004/05 Table I represents the City of San Juan Capistrano DOT -assisted projects considered in preparing its Overall Annual DBE Goal -Setting Analysis for FFY 2004/05 by contract type. All projects have subcontracting possibilities and are anticipated to be awarded and/or expended within the fiscal year 2004/05: Table 1 Table 2 provides a summary of the corresponding subspecialty work grouped into three primary categories; Construction, Professional Services, and Materials & Supplies utilizing Caltrans Work Category Codes (WCC) and comparable 1999 Census Business Patterns North American Industry Classification System (NAICS) Work Codes. Table 2 also serves to identify the estimated Federal Dollar Share and the Percent of Federal Funding weighted in each primary work category, as follows: Table 2 II. GOAL -METHODOLOGY Step 1: Determination of a Base Figure (26.45) To establish the City of San Juan Capistrano's Base Figure of the relative availability of DBEs to all comparable firms (DBEs and Non -DBEs) available to bid or propose on the City of San Juan Capistrano's FFY 2004/05 DOT -assisted contracting opportunities projected to be let, the City of San Juan Capistrano followed one of the five prescribed federal goal -setting methodologies in Caltrans Local Assistance Procedures Manual. This was accomplished by accessing the Caltrans' on-line Bulletin Board System (BBS) DBE Directory of Certified Firms and the 2001 U.S. Census Bureau County Business Patterns (CBP) Database. The City of San Juan Capistrano made a concerted effort to ensure that the scope of businesses included in the numerator was as close as possible to the scope included in the denominator. b For the numerator. Caltrans' DBE Directory of Certified Firms b For the denominator., Census Bureau's Business Pattern Database (CBP) To determine the relative availability of DBEs for each work category, the City of San Juan Capistrano divided the numerator representing the ratio of ready, willing and able DBE firms, by the denominator representing all firms (DBEs and Non -DBEs) available for each of the work categories. Application of this formula yielded the following baseline information: Number of Ready, Willing, and Able DBEs in Area Codes 714 & 949 = BASE FIGURE Number of All Available Firms in Orange County (including DBEs and Non -DBEs) The Base Figure was further adjusted by weighting the relative availability of DBEs grouped within the major work categories, giving more weight to the work categories/industries, in which the City projects to spend more DOT -assisted dollars. The Base Figure resulting from this weighted calculation is as follows: Step I. Base Figure (weighted by type of work to be performed and corresponding contracting dollars) Base Figure = 100% ( DBE in WCC) _ (CBPs in NAICS 54 ) Base Figure = ( 191 + 108 ) - 11,271 Base Figure = ( 299 - 11,271 ) Base Figure = 2.6% Step 2: Adjusting the Base Figure Upon establishing the Base Figure, the City of San Juan Capistrano reviewed and assessed other known evidence potentially impacting the relative availability of DBEs within the City of San Juan Capistrano's market area, in accordance with prescribed narrow tailoring provisions set forth under 49 CFR Part 26 DBE Goal Adjustment provisions. Evidence considered in making an adjustment to the Base Figure included the City of San Juan Capistrano's Past DBE Goal Attainments on Similar Type Projects, Bidders List, Disparity Studies and attainments within the City of San Juan Capistrano's jurisdiction. A summary of these considerations follows: Demonstrated Capacity of DBEs Measured by Actual Attainment The following table reflects the City of San Juan Capistrano's DBE goal attainments and/or commitments on similar projects awarded from previous fiscal years: * - project to be advertised The City of San Juan Capistrano considered an adjustment to the Base Figure based on past DBE goal attainment/commitment on similar contracts to those contracting opportunities considered in the Overall Annual DBE Goal Setting process for this Fiscal Year. The City of San Juan Capistrano adjusted the Base Figure by deriving the City's average past participation percentage numbers to obtain the Median Past Participation percentages. The Base Figure was adjusted by adding the Median Past Participation Percentage and the Step I Base Figure, and dividing the total number by two (2). The Adjusted Base Figure resulting from the application of this formula is as follows: Step I Base Figure +Median Past Participation = ADJUSTED BASE FIGURE 2 Past Participation = 15.94%, 12% Past Participation = 15.94%+ 12%= 27.94% Median Past Participation = 27.94% - 2 =13.97% Step 1 Base Figure Adjusted = 13.97% Base Figure Adjusted = ( 2.6% + 13.97%) - 2 = 8.28% Adjusted Base Figure = S% (rounded) B. City of San Juan Capistrano's Bidders List While a Bidders List would serve as quantifiable evidence of DBEs demonstrated interest and capacity; the City of San Juan Capistrano has not advertised a sufficient number of projects to adequately develop the Bidders List information, therefore, there is not sufficient data to date to merit consideration for an adjustment. However, the City of San Juan Capistrano will continue to capture such information from all bidders at the time of bid/proposal submission and will utilize such information in future goal -setting analysis. C. Evidence from Disparity Studies The City of San Juan Capistrano is not aware of any current disparity studies within the City of San Juan Capistrano's jurisdiction for consideration in the goal setting analysis and/or adjustment. Overall Resultant Goal Adjustment After careful consideration of the above-named evidence and other relevant factors, the City's adjusted Base Figure is 8%. The following are the major factors/evidence considered in the adjustment of the Base Figure: • City of San Juan Capistrano's past DBE goals and attainments. • The type of project the City is letting this fiscal year are the similar to types of projects let in recent years. III. OVERALL ANNUAL GOAL AND PROJECTION OF RACE -NEUTRAL AND RACE - CONSCIOUS PARTICIPATION: The Overall Annual (FFY 2004/05) DBE Goal for the City of San Juan Capistrano's DOT -assisted contracts is 8%. The Overall Goal is expressed as a percentage of all DOT -assisted funds that the City will expend in DOT -assisted contracts in the forthcoming fiscal year. This goal further serves to identify the relative availability of DBEs based on evidence of ready, willing, and able DBEs to all comparable firms, which are known to be available to compete for and perform on -- the City's DOT -assisted contracts. The Overall Annual Goal reflects a determination of the level of DBE participation, which would be expected absent the effects of discrimination. The City projects to meet 0% of the goal utilizing race -neutral methods, including malting efforts to assure that bidding and contract requirements facilitate participation by DBEs and other small businesses in conformance with new regulatory requirements. The City projects to meet the remaining 8 "/o of the goal utilizing race—conscious measures, including utilizing contract specific numeric goals, as necessary to achieve the overall goal. The overall goal is expressed as a percentage of all DOT -assisted funds that the City will expend in FHWA-assisted contracts in the forthcoming fiscal year. In accordance with Title 49 CFR Part 26.51, the City is prioritizing the maximum use of race -neutral measures to the feasible level to meet their Overall Annual DBE Goal. The application of race -conscious goals on the City's DOT -assisted contracts will be used only to the extent necessary to achieve the City's overall annual goal. The City used DBE participation attainment levels achieved on similar, past contracts, and the level of ready, willing and able DBEs in the services required, as considerations impacting the above race-neutral/race-conscious projections. IV. PUBLIC PARTICIPATION AND FACILITATION In accordance with Public Participation Regulatory Requirements of 49 CFR Part 26 and Caltrans Local Assistance Procedures Manual (LAPM), this goal analysis will be reviewed by minority, women, local business chambers, and community organizations within the City of San Juan Capistrano's market area. The City of San Juan Capistrano will also publish a Public Notice in general circulation media announcing the City of San Juan Capistrano's proposed Overall Annual Goal for the IFFY 2004/05 DOT - assisted contracts. Such Notice will inform the public that the proposed goal and its rationale is available for inspection at the City of San Juan Capistrano's Engineering & Building Department during normal business hours for 30 days following the date of the Public Notice and that the City of San Juan Capistrano will accept comments on the goal analysis for 45 days from the date of the Public Notice. The required public participation provisions will be fully satisfied prior to submitting the City of San Juan Capistrano's Overall Annual DBE Goal to Caltrans for final review and approval. Date: William M. Huber DBE Liaison Officer GUIDELINES FOR CIVIL RIGHTS COMPLIANCE REVIEWS OF LOCATION PROCEDURES GENERAL In accordance with Title VI and Title VIII of the Civil Rights Act of 1964 and 1968, local agencies are required to follow certain location procedures on federal -aid highway projects. This guideline may be used to suggest areas for review. As a result of the choice of highway locations or the procedures used in arriving at the choice, has the Agency, State, or Federal Highway Administration received any civil rights complaints? If so, what were the complaints and what has been done to resolve them? 2.a. To what extent does the agency employ minority staff personnel in the location program under review? Are these personnel involved in the following: • Developing and comparing alternatives, • Assessing impacts, and • When used, operating through consultant contracts? Are they involved in any other related areas? If not, what is being done to recruit and hire minority personnel? 2.b. What training or education sessions are conducted to increase the skills of minorities as well as non -minorities? Are promotional opportunities available for minorities? Does the Agency fill professional as well as nonprofessional positions with minorities? If not, what is being done to rectify these situations? 3. Does the Agency choose consultant firms without discrimination on the basis of race, sex, color, or national origin? Is there evidence that minority consultant and consultants with minority staffs offered equal employment opportunity? How many of these firms have contracts and what type are they? 4. Does the process for preparation of Environmental Impact Statements, or do the Environmental Impact Statements themselves, reflect any indication of a violation of any of the provisions of Title VI or Title VIII? If so, elaborate. LOCATION DETERMINATION When reviewing the process leading to location determination on a specific project, the following questions are to be used: La. To what extent has the agency or consultant compiled the following information for use in the location determination? l.b. The racial character of the portion of the area through which the alternate locations pass, including the approximate number by race of persons and families affected by each alternate (affected means all persons directly displaced or located in areas directly adjoining the road.) I.e. The social and economic character of the area through which alternates pass, including levels of income, whether the area is commercial or residential, and the approximate number of minority and non -minority owners of businesses and residences in the area. l.d. The racial character of the people employed in the area affected by each alternate. 2. How was the racial and ethnic data used to identify possible problem areas and adverse impacts, such as relocation difficulties or possible changes in minority income capabilities, mobility, or community cohesion? What efforts have been made to rectify these problem areas and minimize the adverse impacts? 3. Will a minority area be bypassed or separated from contiguous areas by an of the alternatives, and if so, what effect will this have on the minority community? To what extent will it perpetuate patterns of segregation? 4. How will each of the alternates affect the use of various community facilities and services such as hospital, libraries, shopping areas, fire stations, police installations, schools, churches, parks and recreation centers by minority groups in the area? 5. To what extent will each of the locations produce an adverse effect of residential, commercial and industrial development existing or planned within minority communities? 6. What attempt has the Agency made to satisfy minority community planning goals and needs? To what extent were the goals and needs determined utilizing input from the minority community? 7. Have the gradeline, safety considerations, cross -street treatment, pedestrian overpasses, and other design features been established for alternatives to the same degree in minority areas as in non -minority areas?: 8. Is access to and from the various alternates provided without discrimination? 9. Would the alternates have an effect on traffic volumes on adjacent streets within minority communities? To what extent has the Agency studied the effect of increased or decreased traffic on residences and businesses? 10. To what extent have aesthetics, noise, and air quality been considered within minority communities? it. Has all the above information been adequately tabulated and mapped for use in the location determination? COMMUNITY PARTICIPATION In any review of projects, a determination should be made that the minority groups have had an opportunity to provide meaningful input into the decision-making process regarding their goals and needs as they pertain to the location determination. The following questions should be used: 1. To what extent do the Agency's procedures provide for consultation with and dissemination of information to minority community and groups? 2. Where non-English speaking minorities are involved, what provisions are made to overcome language barriers? 3. How are the minority leaders identified and encouraged to provide suggestions and ask questions about locations? 4. To what extent are informal hearings and meetings held with the affected minority communities and groups? 5. To what extent does the Agency respond to questions asked and consider comments made by minorities? 6. To what extent are minority community and groups represented on the various councils, boards, and committees, etc., that provide input to the location determination? How were these representatives selected and have they been given an equal voice? PUBLIC HEARINGS When reviewing the conduct of public hearings, the following questions should be used: Are hearing(s) held at a place and time convenient to minority community and groups? 2. Are advertisements of the hearing(s) (i.e., newspapers, posters, radio, etc.) adequate to provide notification to minorities? 3. Where non-English speaking minorities are involved, what provisions are made to overcome language barriers both in advertisements and at the hearing(s) ? 4. Are minority leaders specifically invited to attend and present their views? Do they attend? Do they make comments? 5. To what extent does the Agency respond to questions asked and consider comments made by minority persons at the hearing(s)? 6. To what extent are fair housing requirements and the availability of hardship acquisition discussed at public hearings when minorities are to be relocated.