HomeMy WebLinkAbout9/3/2003 - STAFF REPORTS (11) DATE: September 3, 2003
TO: City Council
FROM: Director of Public Works/City Engineer
FEDERAL FISCAL YEAR 2003/2004 DISADVANTAGED BUSINESS ENTERPRISE(DBE)
PROGRAM FOR FHWA FUNDED PROJECTS
RECOMMENDATION:
It is recommended that the City Council approve the City of Palm Springs' Disadvantaged
Business Enterprise Program for FHWA funded projects in Federal Fiscal Year 2003/2004.
SUMMARY:
Federal regulations regarding Disadvantaged Business Enterprises (DBE's) require that
agencies receiving Federal Highway Administration (FHWA) funding update their DBE
Programs on an annual basis, corresponding with each Federal Fiscal Year.
BACKGROUND:
The California Department of Transportation (Caltrans) has been delegated oversight
responsibility for DBE implementation throughout the state for all public works projects
receiving FHWA funds. For the upcoming Federal Fiscal Year 2003/2004, beginning
October 1, 2003, Caltrans required that local agencies submit for review by June 15, 2003,
proposed changes to their DBE Program and their recalculated DBE Goal.
Staff reviewed upcoming federal projects and the availability of DBE firms within the
southern California area, and recommended a new DBE Annual Overall Goal of 7% for
Federal Fiscal Year 200312004. Caltrans reviewed and concurred with staff's
recommendation.
Pursuant to the DBE Federal regulations, a Public Notice was published in the Desert Sun
on July 6, 2003, providing for a 30-day review and concurrent 45-day public comment
period. No public comments were received, and following receipt of proof of publication,
Caltrans officially approved the City's DBE Program for Federal Fiscal Year 200312004.
Although Caltrans is the designated agency by FHWA giving final approval to all local
agency annual DBE Programs, Council's concurring approval of the City's DBE Program
at this time registers the City's DBE Program at the local level. The DBE Program is
available for review in the Public Works and Engineering Department.
SUBMITTED: A
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DAVIID J. BARAKIAN
Director of Public Works/City Engineer
DAVID H. READY
City Manager =— J
ATTACHMENTS:
1. Minute Order
CITY OF PALM SPRINGS
ENGINEERING DEPARTMENT
FEDERAL FISCAL YEAR 2003/2004
DISADVANTAGED BUSINESS ENTERPRISE
(DBE) PROGRAM
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DAVID J. BARAKIAN, P.E., CITY ENGINEER
MARCUS L. FULLER, P.E., DBE LIAISON OFFICER n
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CITY OF PALM SPRINGS
DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM
I. Definitions of Terms
The terms used in this program have the meanings defined in 49 CFR§26.5.
H. Objectives /Policy Statement (§§26.1, 26.23)
The City of Palm Springs 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 Palm Springs has received Federal financial assistance from the DOT,and as a condition of receiving
this assistance,the City of Palm Springs will sign an assurance that it will comply with 49 CFR Part 26.
It is the policy of the City of Palm Springs to ensure that DBE's, 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 DBE's 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 DBE's in DOT-assisted contracts; and
To assist the development of firms that can compete successfully in the market place outside
the DBE Program.
Marcus L. Fuller, Senior Civil Engineer, has been delegated as the DBE Liaison Officer. In that
capacity, Mr. Fuller 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 Palm Springs in its financial assistance agreements with the California Department of
Transportation (Caltrans).
The City of Palm Springs has disseminated this policy statement to the City Council of the City of Palm
Springs 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)
The City of Palm Springs 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 Palm Springs 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)
The City of Palm Springs will continue to carry out this program until the City of Palm Springs has
established a new goal setting methodology or until significant changes to this DBE Program are
adopted. The City of Palm Springs 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)
The City of Palm Springs will not use quotas or set asides in anyway in the administration of this DBE
program.
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VI.- DBE Liaison Officer (DBELO) (§26.45)
The City of Palm Springs has designated the following individual as the DBE Liaison Officer(DBELO):
Marcus L. Fuller, Senior Civil Engineer
3200 E. Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263-2743
(760) 323-8253, extension 8744
marcusf@ci.palm-springs.ca.us
In that capacity, Mr. Fuller is responsible for implementing all aspects of the DBE program and ensuring
that the City of Palm Springs complies with all provisions of 49 CFR Part 26. This is available on the
Internet at osdbuweb.dot.gov/main.cfm. Mr. Fuller has direct, independent access to the City Engineer
of the City of Palm Springs concerning DBE program matters. Mr. Fuller has a staff of four(4)support
personnel who devote a portion of their time to the DBE 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:
Gathers and reports statistical data and other information as required.
Reviews third party contracts and purchase requisitions for compliance with this program.
Works with all departments to set overall annual goals.
Ensures that bid notices and requests for proposals are available to DBE's in a timely manner.
Identifies contracts and procurements so that DBE goals are included in solicitations(both race-
neutral methods and contract specific goals) and monitors results.
Analyzes the City of Palm Springs' progress toward goal attainment and identifies ways to
improve progress.
Participates in pre-bid meetings.
Advises the CEO/governing body on DBE matters and achievement.
Chairs the DBE Advisory Committee.
Participates with the legal counsel and project director to determine contractor compliance with
good faith efforts.
Provides DBE's with information and assistance in preparing bids, obtaining bonding and
insurance.
Plans and participates in DBE training seminars.
Provides outreach to DBE's and community organizations to advise them of opportunities.
VIL Federal Financial Assistance Agreement Assurance (§26.13)
The City of Palm Springs will sign the following assurance, applicable to all FHWA-assisted contracts
and their administration as part of the program supplement agreement for each project:
The recipient shall not discriminate on the basis of race, color, national origin, or sex in
the award and performance of any DOT-assisted contract or in the administration of its
DBE Program or the requirements of 49 CFR part 26. The recipient shall take all
necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in
the award and administration of DOT-assisted contracts. The recipient's DBE Program,
as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference
in this agreement. Implementation of this program is a legal obligation and failure to
carry out its terms shall be treated as a violation of this agreement. Upon notification
to the recipient of its failure to carry out its approved program, the Department may
impose sanctions as provided for under part 26 and may, in appropriate cases, referthe
matter for enforcement under 18 U.S.C. 1001 and/orthe Program Fraud Civil Remedies
Act of 1986 (31 U.S.C. 3801 et seq.).
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VIII. DBE Financial Institutions
It is the policy of the City of Palm Springs 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)
The City of Palm Springs 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)
The City of Palm Springs has not identified any types of work in DOT-assisted contracts that have a
overconcentration of DBE participation. If in the future the City of Palm Springs identifies the need to
address overconcentration, measures for addressing overconcentration will be submitted to the DLAE
for approval.
XI. Business Development Programs (§26.35)
The City of Palm Springs does not have a business development or mentor-protege program. If the
City of Palm Springs 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
The City of Palm Springs 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
The City of Palm Springs 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 laterthan 10 days from the receipt of each payment the prime contractor
receives from the City of Palm Springs. Any delay or postponement of payment from the above
referenced time frame may occur only fo good cause following written approval of the City of Palm
Springs. 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 Palm Springs. This clause applies to both DBE and non-DBE subcontractors.
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XIII. Monitoring and Enforcement Mechanisms (§26.37)
The City of Palm Springs 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 Palm Springs 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
DBE's 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 City of Palm Springs 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 DBE's. 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 tAPM 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). The City
of Palm Springs 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 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.
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:
1. The DBE Liaison Officer will perform a preliminary investigation to identify any potential
issues related to the DBE subcontractor performing a commercially useful function.
2. 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
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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 will be 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 the 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 DBE 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:
The name and business address, regardless of tier, of every DBE subcontractor, DBE vendor of
materials and DBE trucking company.
The date of payment and the total dollar figure paid to each of the firms.
The DBE prime contractor shall also show the date of work performed by their own forces along with
the corresponding dollar value of the work claimed toward DBE goals.
When a contract has been completed the contractor will provide a summary of the records stated
above. The DBE utilization information will be documented on Exhibit 17-F and will be submitted to the
DLAE attached to the Report of Expenditures. The RE will compare the completed Exhibit 17-F to the
contractor's completed Exhibit 15-G and,if applicable,to the completed Exhibit 16-13. The DBE's 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 DBE's 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 DBE 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 Palm Springs' commitment to require
bidders list information to be submitted to the City of Palm Springs 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.
The City of Palm Springs 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. The City
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of Palm Springs also will consider similar action under its own legal authorities, including responsibility
determinations in future contracts.
XIV. Overall Goals (§26.45)
Amount of Goal
The City of Palm Springs' overall goal for the Federal fiscal year FY 2003/2004 is the following: 71/o
of the Federal financial assistance in FHWA-assisted contracts. This overall goal is broken down into
4% race-conscious and 3% race-neutral components.
Methodologv
The Methodology for calculating the Federal fiscal year FY 2003/2004 overall goal is found in
Attachment B to this program.
Breakout of Estimated Race-Neutral and Race-Conscious Participation
The breakout of race-neutral and race-conscious participation in the Federal fiscal year FY 2003/2004
overall goal is found in Attachment B to this program.
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 submitted annually
by June 1 in advance of the Federal fiscal year beginning October 1 for FHWA-assisted contracts.
Submittals will be to the Caltrans' DLAE. The City of Palm Springs 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 Palm Springs 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 Palm Springs' 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 by the City of Palm Springs. Advertisements in newspapers, minority focus
media, trade publications, and websites will be the normal media to accomplish this effort. The notice
will include addresses to which comments may be sent and addresses(including offices and websites)
where the proposal may be reviewed.
The overall goal resubmission to the Caltrans DLAE, will include a summary of information and
comments received during this public participation process and the City of Palm Springs' 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 Palm Springs may begin using the overall goal on October 1 of each year.
Provisions for"Design-Build" projects are found in Attachment C to this program.
XV. Contract Goals (§26.51)
The City of Palm Springs will use contract goals to meet any portion of the overall goal it does not
expect 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 expected 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 DBE's 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.
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XVI. Transit Vehicle Manufacturers (§26.49)
If DOT-assisted contracts will include transit vehicle procurements, the City of Palm Springs 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. The
City of Palm Springs will direct the transit vehicle manufacturer to the subject requirements located on
the Internet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm.
XVIL Good Faith Efforts (§26.53)
Information to be Submitted
The City of Palm Springs 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 the City of Palm Springs with, and as a part of, the Bid Documents
due by the date and time specified for bid opening:
The names and addresses of known DBE firms that will participate in the contract;
A description of the work that each DBE will perform;
The dollar amount of the participation of each DBE firm participation;
Written and signed documentation of commitment to use a DBE subcontractor whose participation
it submits to meet a contract goal;
Written and signed confirmation from the DBE that it is participating in the contract as provided in
the prime contractor's commitment; and
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 found in Attachment D to this program.
The DBELO is 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.
The City of Palm Springs 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 the City of Palm Springs 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:
David J. Barakian, City Engineer
3200 E. Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263-2743
(760) 323-8253, extension 8732
davidb@ci.palm-springs.ca.us
The reconsideration official will not have played any role in the original determination that the
bidder/offeror did not make or document sufficient good faith efforts.
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. The City of Palm Springs will send the bidder/offeror a written decision on reconsideration,
Page 8 of 18 V ,y
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
The City of Palm Springs 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 the City of Palm Springs' prior approval
of the substitute DBE and to provide copies of new oramended subcontracts,ordocumentation of good
faith efforts. If the contractor fails or refuses to comply in the time specified, the City of Palm Springs'
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)
The City of Palm Springs 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.
XIX. Certification (§26.83(a))
The City of Palm Springs ensures that only DBE firms currently certified on the Caltrans' directory will
participate as DBE's in our program.
XX. Information Collection and Reporting
Bidders List
The City of Palm Springs 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 DBE's
Prime contractors are required to maintain records and documents of payments to DBE's 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 Palm Springs, 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 Palm Springs 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
The City of Palm Springs will report the final utilization of DBE participation to the DLAE using Exhibit
17-F of the Caltrans' LAPM,
Confidentiality
The City of Palm Springs will safeguard from disclosure to third parties information that may reasonably
be regarded as confidential business information, consistent with Federal, state, and local laws.
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Submitted by:
CITY OF PALM SPRINGS
Dated:
David H. Ready, City Manager
City of Palm Springs
Accepted by:
CALIFORNIA DEPARTMENT OF TRANSPORTATION
Dated:
Caltrans District 08
District Local Assistance Engineer
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ATTACHMENT B
OVERALL ANNUAL DBE GOAL AND METHODOLOGY
I. DOT-ASSISTED CONTRACTING PROGRAM FOR IFFY 2003/2004
Methodology
The City of Palm Springs is located with the western portion of the Coachella Valley economic sub-
region. The Coachella Valley is an approximately 2,500 square mile economic sub-region of Riverside
County. The Coachella Valley consists of the nine incorporated Cities of Palm Springs, Indian Wells,
Desert Hot Springs, Palm Desert, Cathedral City, Rancho Mirage, La Quinta, Indio and Coachella, and
portions of the unincorporated County of Riverside. The City of Palm Springs represents 92 square
miles and boasts a permanent population of 45,000. The City's population increases by approximately
30,000 during its peak season, for a seasonal population of approximately 75,000.
The City of Palm Springs anticipates using Federal Highways Administration (FHWA) funding for
Federal Fiscal Year 2003/2004 in the amount of $673,000.00. The following represents the City's
projected FHWA funded, projects, contracts and expenditures:
1. Federal Project No.: STIP 5282 (pend)
Project Name: Indian Canyon Drive Widening Improvements
Project Limits: Palm Springs Train Station Road to Tramview Road
FY 02/03 Activity: Environmental and Preliminary Engineering
Federal Funding: $398,000
B. Federal Project No.: BRLS 5282 (pend)
Project Name: South Palm Canyon Drive/Arenas Canyon South Drainage Channel
Low Water Crossing Bridge Replacement
Project Limits: South Palm Canyon Drive at Bogert Trail
FY 02/03 Activity: Environmental and Preliminary Engineering
Federal Funding: $275,000
Work Category SIC Category Estimated Dollar % Federal Funding
Value FY 2003/2004
Consulting Services 8700/8705/8706/87078 $673,000.00 100%
710/8720/8722
The City of Palm Springs historically receives the vast majority of its proposals for professional
consulting services and bids from construction contractors within the Riverside/San Bernardino statistical
area. Subsequently, the City has determined the Riverside and San Bernardino County geographical
boundaries be used for the purpose of calculating its Disadvantaged Business Enterprise (DBE) goal
for FY 200312004. The following calculations are based upon the Caltrans DBE Directory of certified
firms (filtered to represent only DBEs within the Riverside and San Bernardino Counties) and the
Census Bureau's Business Pattern Database (CBPs)for the same areas.
Calculation
(DBEs in SIC 8700/8705/8706/87078710/8720/8722)
CBPs in SIC 8700/8705/8706/87078710/8720/8722
35
485
.0722
Base Figure = (.0722) 100 = 07.22 = 7%
The City of Palm Springs has elected not to adjust the base figure of 7% during Fiscal Year 2003/2004.
The base figure may be adjusted in future Fiscal Years as project specific data becomes available.
Page 12 of 18 � /], /'?
Breakout of Estimated Race-Neutral and Race-Conscious Participation
Of the annual 7% goal for DBE participation, the City of Palm Springs projects meeting 3% of the goal
utilizing race-neutral methods,including making efforts to assure that bidding and contract requirements
facilitate participation by DBEs and other small businesses, unbundling large contracts to make them
more accessible to small businesses;encouraging prime contractors to subcontract portions of the work
that they might otherwise perform themselves; and providing technical assistance, and other support
services to facilitate consideration of DBEs and other small businesses.
The remaining 4% of the goal is anticipated to be accomplished through race-conscious measures,
which includes establishing contact specific goals on contracts with contracting possibilities, when
needed, to meet the City's overall annual DBE goal.
ATTACHMENT C
PROVISIONS FOR "DESIGN-BUILD" PROJECTS
The following are hereby incorporated into the City of Palm Springs'Disadvantaged Business Enterprise
(DBE) Program:
II. Objectives /Policy Statement (§§26.1, 26.23)
At the end of the first paragraph, add the following:
The City of Palm Springs recognizes that certain modifications are necessary to adapt
the program for use in connection with "Design-Build"projects, 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
Example).
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 a City of Palm Springs design-build contract will be required to submit a DBE
Performance Plan as part of a responsive proposal. Following award of a design-build
contract and during both the design and construction portions of the project, the design-
build contractor will be required to submit documentation,in the form of progress 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 of good faith efforts, as described in 49 CFR Part
26 Section 26.5349 and found in Attachment D to this program, 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 City of Palm Springs 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 City of Palm Springs 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)
At the end of the third paragraph below"Information to be Submitted", add the following items:
7. DBE Performance Plan containing a detailed description of the design-build
contractor's planned methodology for achieving the DBEgoal 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.
EXAMPLE OF PUBLIC EMERGENCY OR NECESSITY FINDING
RESOLUTION OF THE CITY OF 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 CITY CLERK
1. MOTION MADE AND DATE
2. VOTING RESULTS
3. SIGNATURES:
(a) (City Clerk)
(b) (City Manager)
ATTACHMENT D
APPENDIX A TO PART 26 -- GUIDANCE CONCERNING GOOD FAITH EFFORTS
I. When, as a recipient, you establish a contract goal on a DOT-assisted contract, a bidder must,
in order to be responsible and/or responsive, make good faith efforts to meet the goal. The
bidder can meet this requirement in either of two ways. First, the bidder can meet the goal,
documenting commitments for participation by DBE firms sufficient for this purpose. Second,
even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This
means that the bidder must show that it took all necessary and reasonable steps to achieve a
DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness
to the objective, could reasonably be expected to obtain sufficient DBE participation,even if they
were not fully successful.
II. In any situation in which you have established a contract goal, part 26 requires you to use the
good faith efforts mechanism of this part. As a recipient, it is up to you to make a fair and
reasonable judgment whether a bidder that did not meet the goal made adequate good faith
efforts. It is important for you to consider the quality,quantity,and intensity of the different kinds
of efforts that the bidder has made. The efforts employed by the bidder should be those that
one could reasonably expect a bidder to take if the bidder were actively and aggressively trying
to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are
not good faith efforts to meet the DBE contract requirements. We emphasize, however, that
your determination concerning the sufficiency of the firm's good faith efforts is a judgment call:
meeting 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.
IV. The following is a list of types of actions which you should consider as part of the bidder's good
faith efforts to obtain DBE participation. It is not intended to be a mandatory checklist, nor is it
intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in
appropriate cases.
A. Soliciting through all reasonable and available means (e.g. attendance at pre-bid
meetings,advertising and/orwritten notices)the interest of all certified DBE's who have
the capability to perform the work of the contract. The bidder must solicit this interest
within sufficient time to allow the DBE's to respond to the solicitation. The bidder must
determine with certainty if the DBE's are interested by taking appropriate steps to follow
up initial solicitations.
B. Selecting portions of the work to be performed by DBE's 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 DBE's 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 DBE's. 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 DBE's 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 DBE's 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 firm's
price and capabilities as well as contract goals into consideration. However, the fact
that there may be some additional costs involved in finding and using DBE's is not in
itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as�� /Cj
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.higherquotes from DBE's if the price difference is excessive or unreasonable.
E. Not rejecting DBE's 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 DBE's in obtaining bonding, lines of credit, or
insurance as required by the recipient or contractor.
G. Making efforts to assist interested DBE's 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 DBE's.
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.
Proof of Publication
In Newspaper
STATE OF CALIFORNIA
County of Riverside
Jacquelin K. Welch says:
1. I am a citizen of the United States, a
resident of the City of Desert Hot
Springs, County of Riverside, State of
California, and over the age of 18 years.
2. 1 am the Research & Production
Assistant of The Public Record, a CI Ty OF PALM SPRINGS
PUBLIC NOTICE
newspaper of general circulation printed
NOTICE IS HEREBY GIVEN that the Qtyolpalle Springs has _
and published in the City of Palm established an Overall Annual Oisativanta ed Business
Enterprise Goal of seven percent ]% g
Springs, County of Riverside, State of Oepatlment°,Transporlati°naonlra�,�n'°appl,aab,e ,° US
uled to be awarded tlunn P g PPorlumhes sched-
California. Said The Public Record (s a _ g the 'nod of October i, 2003,
posetlh Berall A-130,2004 The C,ly of palm Springs pro-
newspaper of general circulation as that Overall Annual Goal and Oisadvanta ed Bpa,neas
Enterprise Peon Final Rule(ggCFgpart2s)antlareavarl-
term is defined in Government Code _Noolt no
e800 fo„h,rty(30)days,ollowrn
section 6000 its status as such having Montla ffom 80°A'M 1°500 pnq,pac,l,cde limes
' locatetl ahhrough Friday at our principal place of Standard rlru a
been established by judicial decree of the
Superior Court of the State of Californian Qty of palm Springs
or"of the GO Clerk
and for the County of Riverside in 200 E.TahquRa Canyon Way
Comments willbe&coe etl'oo the a92263
Proceeding No. Indio 49271, dated from t e date°,me No;ree.Coin Gpal Por/°hy-five(45 daya
the Ctly of P91m S r merits can be f°nvartlad to
March 31, 1987, entered in Judgment Galiforma Oeparfine9f aofth-aboveataf'daddressoft°Ihe
Book No. 129, page 355, on March 31, Aaslatanae Englne'r(G AE T'a^aporlatl°^, Blariat o°a,
5treeq M51030,Sen Berne dinor CA B2401° at 464 W 4th
1987.
3. The Public Record is a newspaper of By'/s/Patricia A.Sanders
general circulation ascertained and i - July 6,2003 Clty Clark
established in the City of Palm Springs in
the County of Riverside, State of
-----------
California, Case No. RIC 358286, Filed
June 8, 2001.
4. The notice, of which the annexed is a
true printed copy, was published in the
newspaper on the following publication
dates to wit:
July 8, 2003
1 certify under penalty of perjury that the
above is true and correct.
Dated at Palm Springs, California,
this 81h day of July 2003.
Jacquelin K. Welch i ..
Research & Production Assistant
1
F PALM 3
City ®f Palm Springs
Department of Public Works and Engineering
' °"•oea.Eo`°�� ' 3200 E.Tahquicz Canyon Way • Palm Springs,Califocma 92262
O14)FOR NVV" Tel: (760)323-8253 • Pax: (760) 322-8360 ° Web: www.a palm-sprmgs.ca.us
MEMORANDUM ti'tl
DATE: June 23, 2003
To: Trisha Sanders, City Clerk
FROM: Marcus Fuller, Senior Civil Engineer
SUBJECT: 2003/2004 DBE Program
Trisha:
It is that time of year again, and attached is the next Fisal Year (2003/2004) Disadvantaged Business
Enterprise (DBE) goal and program. Included is a copy of a Public Notice that must be published once
making the DBE program available for a concurrent 30-day public review/45-day public comment period.
Please hold the DBE Program in your office for review.
Please advise me the date of the publication of this Notice so that I can document that close of the 30-day
public review/45-day public comment period. Following the close of public comments, I will bring the DBE
Program to the Council for their review and approval.
Thank you for your assistance.
( 3� 03
C �
Post Office Box 2743 ° Palm Springs, California 92263-2743
CITY OF PALM SPRINGS
PUBLIC NOTICE
NOTICE IS HEREBY GIVEN that the City of Palm Springs has established an Overall Annual
Disadvantaged Business Enterprise Goal of seven percent(7%), applicable to U.S. Department of
Transportation contracting opportunities scheduled to be awarded during the period of October 1,
2003, through September 30, 2004. The City of Palm Springs proposed Overall Annual Goal and
its rationale were developed in response to U.S. Department of Transportation's New
Disadvantaged Business Enterprise Program Final Rule (49 CFR Part 26) and are available for
inspection for thirty(30) days following the date of this Notice, from 8:00 A.M. to 5:00 P.M., Pacific
Standard Time, Monday through Friday at our principal place of business located at:
City of Palm Springs
Office of the City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263
Comments will be accepted on the Goal for forty-five (45) days from the date of this Notice.
Comments can be forwarded to the City of Palm Springs, at the above stated address or to the
California Department of Transportation, District Local Assistance Engineer (DLAE), Mr. Louis
Flores, at 464 W. 4th Street, MS1030, San Bernardino, CA 92401.
Patricia Sanders, City Clerk
Publish: July 8, 2003
The Public Record
CITY OF PALM SPRINGS
PUBLIC NOTICE
NOTICE IS HEREBY GIVEN that the City of Palm Springs has established an Overall Annual
Disadvantaged Business Enterprise Goal of seven percent(7%), applicable to U.S. Department of
Transportation contracting opportunities scheduled to be awarded during the period of October 1,
2003, through September 30, 2004. The City of Palm Springs proposed Overall Annual Goal and
its rationale were developed in response to U.S. Department of Transportation's New
Disadvantaged Business Enterprise Program Final Rule (49 CFR Part 26) and are available for
inspection for thirty(30) days following the date of this Notice, from 8:00 A.M. to 5:00 P.M., Pacific
Standard Time, Monday through Friday at our principal place of business located at:
City of Palm Springs
Office of the City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263
Comments will be accepted on the Goal for forty-five (45) days from the date of this Notice.
Comments can be forwarded to the City of Palm Springs, at the above stated address or to the
California Department of Transportation, District Local Assistance Engineer (DLAE), Mr. Louis
Flores, at 464 W. 4th Street, MS1030, San Bernardino, CA 92401.
Patricia Sanders, City Clerk
Publish: July 8, 2003
The Public Record
MINUTE ORDER NO. 7363
APPROVING THE CITY OF PALM
SPRINGS' DISADVANTAGED BUSINESS
ENTERPRISE PROGRAM FOR FHWA
FUNDED PROJECTS IN FEDERAL
FISCAL YEAR 2003/2004.
------------------
HEREBY CERTIFY that this Minute Order, approving the City of Palm Springs'
Disadvantaged Business Enterprise Program for FHWA funded projects in
Federal Fiscal Year 2003/2004, was adopted by the City Council of the City of
Palm Springs, California, in a meeting thereof held on the 3`d day of September,
2003.
PATRICIA A. SANDERS
City Clerk
T
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