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CC Resolution No. 09-058 Disadv Bus EnterpriseRESOLUTION NO. 09-058 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING THE CITY MANAGER 'TO EXECUTE A DISADVANTAGED BUSINESS ENTERPRISE RACE-CONSCIOUS IMPLEMENTATION AGREEMENT WITH THE CALIFORNIA DEPARTMENT OF TRANSPORTATION WHEREAS, On March 4, 2009, the California Department of Transportation (Caltrans) informed its local agency transportation partners that the Federal Highway Administration (FHWA) approved Caltrans' 2009 Disadvantaged Business Enterprise (DBE) Annual Overall Goal.; and WHEREAS, Effective immediately, Caltrans and its local partners receiving federal-aid funds must begin transitioning to the new RC DBE Program. Local agencies have until June 2, 2009, to transition to the new RC DBE Program; and WHEREAS, FHWA's approval require; the immediate implementation of the new DBE Program that includes arace-conscious component (RC DBE Program); and WHEREAS, the City of Cupertino must execute the attached Disadvantaged Business Enterprises Race-Conscious Impleme~ltation Agreement in order to continue to be a recipient of federal transportation fund, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cupertino that the City Manager is hereby authorized to execute the Disadvantaged Business Enterprises Race-Conscious Implementation Agreement with the California Department of Transportation. PASSED AND ADOPTED at a regular ;meeting of the City Council of the City of Cupertino this 21St day of Apri12009 by the following vote: Vote Members of the City Council AYES: Mahoney, Sandoval, Santoro, Wing, Wong NOES: None ABSENT: None ABSTAIN: None ATTEST: Kimberly Sm' h CITY CLE APPROVED: m Mahoney MAYOR Exhibit 9-A Disadvantaged Business Enterprise Implementation Agreement for Local Agencies CALIFa~RNIA DEPARTMENT OF TRANSPORTATION DISADVANTAGED BUSINESS ENTERPRISE PROGRAM IMPLEMENTATION AGREEMENT FO~t LOCAL AGENCIES CALIFORNIA DEPARTMENT OF TRANSPORTATION DISADVANTAGED BUSINESS ENTERPRISE IMPLEMENTA'rIONRGREEMENT For the City of Cupertino, hereinafter referred to as "RECIPIENT." Definition of Terms The terms used in this agreement have the meanings defined in 49 CFR § 26.5. II OBJECTIVE/POLICY STATEMENT 0326/1.26/23) The RECIPIENT intends to receive federal financi~Il assistance from the U. S. Department of Transportation (DOT) through the California Department of Transportation (Caltrans), and as a condition of receiving this assistance, the RECIPIENT will sign the California Department of Transportation Disadvantaged Business Enterprise Program Implementation Agreement (hereinafter referred to as Agreement). The RECIl'IENT agrees to implement the State of California, Department of Transportation Disadvantaged Business Enterprise (DBE) Program Plan (hereinafter referred to as the DBE Program Plan) as it pertains to local agencies. The DBE Program Plan is based on U.S. Department of Tran;~portation (DOT), 49 CFR, Part 26 requirements. It is the policy of the RECIPIENT to ensure that DBEs, as defined in Part 26, have an equal opportunity to receive and participate in DOT-assis'~ted contracts. It is also their policy: • To ensure nondiscrimination in the award and administration ofDOT-assisted contracts. • To create a level playing field on which DBE's can compete fairly for DOT-assisted contracts. • To ensure that their annual overall DBE participation percentage is narrowly tailored, in accordance with applicable law. • To ensure that only firms that fully meet 49 CFR, Part 26 eligibility standards are permitted to participate as DBEs. • To help remove barriers to the participation of DBEs in DOT-assisted contracts. • To assist the development of firms that can compete successfully in the market place outside the DBE Program. III Nondiscrimination (§26.7) RECIPIENT will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR, Part 26 on the basis of race, color, sex, or national origin. In administering the local agency components of the D:BE Program Plan, the RECIPIENT will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially imp;~iring accomplishment of the objectives of the DBE Program Plan with respect to individuals oi' a particular race, color, sex, or national origin. IV Annual DBE Submittal Form (§26.21) The RECIPIENT will provide to the Caltrans District Local Assistance Engineer (DLAE) a completed Local Agency DBE Annual Submittal Form (Exhibit 9-B) by .June 1 of each year for the following Federal Fiscal Year (FFY). This form includes an Annual Anticipated DBE Participation Level (AADPL), methodology for establishing the AADPL, the name, phone number, andf electronic mailing address of the designated DBELO, and the choice of Prompt Pay Provision to be used by the RECIPIENT for the following FFY. V Race-Neutral Means of Meeting the Overall Statewide Annual DBE Goal (§26.51) RECIPIENT must meet the maximum feasible portion •of its AADPL by using race-neutral means of facilitating DBE participation. Race-neutral DBE participation in~:ludes any time a DBE wins a prime contract through customary competitive procurement procedures, is awarded a subcontract on a prime contract that does not carry a DBE goal, or even if there is a DBE goal, wins a subco~ltract from a prime contractor that did not consider its DBE status in making the award (e.g., a prime contractor that uses a strict low-bid system to award subcontracts). Race-neutral means include, but are not limited to, the following: 1. Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate DBE, and other small businesses, participation (e.g., unbundling large contracts to make them more accessible to small businesses, requiring or encouraging prime contractors to subcontract portions of work that they might otherwise perform with their own forces); 2. Providing assistance in overcoming limitations such as inability to obtain bonding or financing (e.g., by such means as simplifying the bonding process, reducing bonding requirements, eliminating the impact of surety costs from bids, and providing services to help DBEs, and other small businesses, obtain bonding and financing); 3. Providing technical assistance and other services; 4. Carrying out information and communication programs on contracting procedures and specific contract opportunities (e.g., ensuring the inclusion of D>=~Es, and other small businesses, on recipient mailing lists of bidders; ensuring the dissemination to bidders on prime contracts of lists of potential subcontractors; provision of information in languages other than English, where appropriate); 5. Implementing a supportive services program to develop and improve immediate and long-term business management, record keeping, and financial and accounting capability for DBEs and other small businesses; 6. Providing services to help DBEs, and other small businesses, improve long-term development, increase opportunities to participate in a variety of types of work, handle increasingly significant projects, and achieve eventual self-sufficiency; 7. Establishing a program to assist new, start-up firms, particularly in fields in which DBE participation has historically been low; 8. Ensuring distribution of your DBE directory, through print and electronic means, to the widest feasible universe of potential prime contractors; and 9. Assisting DBEs, and other small businesses, to afevelop their capability to utilize emerging technology and conduct business through electronic media. VI Race Conscious Means of Meeting the Overall Statewide Annual DBE Goal (§26.51(d)) RECIPIENT must establish contract goals for Underutilized Disadvantaged Business Enterprises (UDBEs) to meet any portion of your AADPL you do not project being able to meet using race-neutral means. UDBEs are limited to these certified DBEs that are owned and com:rolled by African Americans, Native Americans, Women, and Asian Pacific Americans. VII Quotas (§26.43) RECIPIENT will not use quotas or set-asides in any wa~.y in the administration of the local agency component of the DBE Program Plan. VIII DBE Liaison Officer (DBELO) (§26.25) RECIPIENT has designated a DBE Liaison Officer. The DBELO is responsible for implementing the DBE Program Plan, as it pertains to the RECIPIENT, and en;;ures that the RECIPIENT is fully and properly advised concerning DBE Program Plan matters. [Specify resources available to the DBELO; e.g., the DBELO has a staff of two professional employees assigned to the DBE program on a full-time basis and two support personnel who devote a portion of their time to the program.] The narrie, address, telephone number, electronic mail address, and an organization chart displaying the DBELO's position in the organization are found in Attachment to this Agreement. This information will be updated annually <<nd included on the DBE Annual Submittal Form. The DBELO is responsible for developing, implementing, and monitoring the RECIPIENT'S requirements of the DBE Program Plan in coordination with other appropriate officials. Duties and responsibilities include the following: 1. Gathers and reports statistical data and other information as required. 2. Reviews third party contracts and purchase requisitions for compliance with this program. 3. Works with all departments to determine projected Annual Anticipated DBE Participation Level. 4. Ensures that bid notices and requests for proposals are made available to DBEs in a timely manner. 5. Analyzes DBE participation and identifies ways to encourage participation through race-neutral means. 6. Participates in pre-bid meetings. 7. Advises the CEO/governing body on DBE matters and DBE race-neutral issues. 8. Provides DBEs with information and recommends sources to assist in preparing bids, obtaining bonding and insurance. 9. Plans and participates in DBE training seminars. 10. Provides outreach to DBEs and community organizations to fully advise them of contracting opportunities. IX Federal Financial Assistance Agreement Assurance (§26.13) RECIPIENT will sign the following assurance, applicable to and to be included in all DOT-assisted contracts and their administration, as part of the program supplement agreement for each 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 I/~OT-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.). [Note -this language is to be used verbatim, as it is stated in §26.13(a).] X DBE Financial Institutions (§26.27) It is the policy of the RECIPIENT to investigate the full. extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community to make reasonable efforts to use these institutions, and to encourage prime contractors on DOT-assisted contracts to make use of these institutions. Information on the availability of such institutions can l:~e obtained from the DBELO. The Caltrans' Disadvantaged Business Enterprise Program may offer ;assistance to the DBELO. XI Directory (§26.31) RECIPIENT will refer interested persons to the Unified Certification Program DBE directory available from the Caltrans Disadvantaged Business Enterprise Program's website at www.dot.ca.gov/hq/bep. XII Required Contract Clauses (§§26.13, 26.29) RECIPIENT ensures that the following clauses or equiv,~lent will be included in each DOT-assisted prime contract: A. CONTRACT ASSURANCE The contractor or subcontractor shall not discriminate on. the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as recipient deems appropriate. [Note -This language is to be used verbatim, as is stated in §26.13(b). See Caltrans Sample Boiler Plate Contract Documents on the Internet at www.dot.ca.gov/hq/Loca1F'rograms under "Publications."] B. PROMPT PAYMENT Prompt Progress Pavment to Subcontra~~tors The local agency shall require contractors and ;subcontractors to be timely paid as set forth in Section 7108.5 of the California Business and Professions Code concerning prompt payment to subcontractors. The 10-days is applicable unless a longer period is agreed to in writing. Any delay or postponement of payment over 30 days may take place only for ;good cause and with the agency's prior written approval. Any violation of Section 7108.5 shall subject tl-e violating contractor or subcontractor to the penalties, sanctions, and other remedies of that Section. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance, and/or noncomplia~lce by a subcontractor. This clause applies to both DBE and non-DBE subcontractors. Prompt Pavment of Withheld Funds to Subcontractors The local agency shall ensure prompt and full payment of retainage from the prime contractor to the subcontractor within thirty (30) days after the si.~bcontractor's work is satisfactorily completed and accepted. This shall be accompanied by including either (1), (2), or (3) ofthe following provisions [local agency equivalent will need Caltrans approval] in their federal-aid contracts to ensure prompt and full payment of retainage [withheld funds] to subcontractors in compliance with 49 CFR 26.29. 1. No retainage will be held by the agency from progress payments due to the prime contractor. Prime contractors and subcontractors are prohibited from holding retainage from subcontractors. Any delay or postponement of payment may take place only f ~r good cause and with the agency's prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and other remedies specifr~~d in Section 7108. S of the California Business and Professions Code. This requirement shall not bE~ construed to limit or impair any contractual, administrative, or judicial remedies, otherwise ~xvailable to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors. 2. No retainage will be held by the agency from progress payments due the prime contractor. Any retainage kept by the prime contractor or by a subcontractor must be paid in full to the earning subcontractor in 30 days after the subcontractor's work is satisfactorily completed. Any delay or postponement of payment may take place only fc-r good cause and with the agency's prior written approval. Any violation of these provisions shal ~ subject the violating contractor or subcontractor to the penalties, sanctions, and remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the cor,!tractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause ~xpplies to both DBE and non-DBE subcontractors. 3. The agency shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances ofportions, as determined by the agency of the contract work and pay retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from all subcontractors within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Any delay or postponement of payment may take place only for good cause and with the agency's prior written approval. A:ny violation of these provisions shall subject the violating prime contractor to the penab`ies, sanctions, and other remedies specified in Section 7108.5 of the California Business Grnd Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or su~5contractor in the event of a dispute involving late payment or nonpayment by the contractor; deficient subcontractor performance; and/or noncompliance by a subcontractor. This clause applies to both DBE and non- DBEsubcontractors. XIII Local Assistance Procedures Manual The RECIPIENT will advertise, award and administer DOT-assisted contracts in accordance with the most current published Local Assistance Procedures Manual (LAPM). XIV Transit Vehicle Manufacturers (§ 26.~I9) If FTA-assisted contracts will include transit vehicle procurements, RECIPIENT 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. XV Bidders List (§26.11(c)) The RECIPIENT will create and maintain a bidders list, consisting of information about all DBE and non-DBE firms that bid or quote o~i its DOT-assisted contracts. The bidders list will include the name, address, DBE/nonDBE status, age, and annual gross receipts of the firm. XVI Reporting to the DLAE RECIPIENT will promptly submit a copy of the Local Agency Bidder/Proposer-UDBE Commitment (Consultant Contract), (Exhibit 10-0(1) "Local Agency Bidder/Proposer-DBE Commitment (Consultant Contract)") or Exhibit 15-~1(1) "Local Agency Bidder-UDBE Commitment (Construction Contract) to the DLAE a.t the time of award of the consultant or construction contracts. RECIPIENT will promptly submit a copy of the Local Agency Bidder-DBE Information (Exhibit 15-G(2) "Local Agency Bidder-DBE (Construction (~ontracts) -Information" or Exhibit 10-0(2) "Local Agency Proposer/Bidder-DBE (Consultant Contracts)-Information" of the LAPM) to the DLAE at the time of execution of consultant or construction contract. RECIPIENT will promptly submit a copy of the Final Utilization of DBE participation to the DLAE using Exhibit 17-F "Final Report -Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors" of the LAPM immediately upon completion of the contract for each consultant or construction contract. XVII Certification (§26.83(a)) RECIPIENT ensures that only DBE firms currently certified by the California Unified Certification Program will participate as DBEs on I~OT-assisted contracts. XVIII Confidentiality RECIPIENT will safeguard from disclosure to third parties, information that may reasonably be regarded as confidential business information consistent with federal, state, and local laws. By David W. Knapp, City Manager City of Cupertino Phone Number: (408) 777-3212 This California Department of Transportation's Disadvantaged Business Enterprise Program Implementation Agreement is accepted by: Date: [Signature of DLAE] [Print Name of DLAE] Distribution: (1) Original -DLAE (2) Signed copy by the DLAE -Local Agency (Updated: Mazch 4, 2009)