09-067 DOT Disadvantaged Bus Enterprise Implementation~~ : (Zo.~.~ 1...
u ~„~
CALIFORNIA DEPARTMENT OF TRANSPORTATION
DISADVANTAGED BUSINESS ENTERPRISE IMPLEMENTATION AGREEMENT
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 (§26/1.26/23)
The RECIPIENT intends to receive federal financial assistance from the U. S. Department of
Transportation (DOT) through the California Dep;u-tment of Transportation (Caltrans), and as a
condition of receiving this assistance, the RECIPIENT will sign the California Department of
Transportation Disadvantaged Business Enterprise Program Ilnpl;,mentation Agreement
(hereinafter referred to as Agreement). The RECII'IENT agrees to implement the State of
California, Department of Transportation Disadvantaged Business Enterprise (DBE) Program
Plan (hereinafter referred to as the DBE Program 1?lan) as it pertains to local agencies. The DBE
Program Plan is based on U.S. Department of Tra-ISportation (DOT), 49 CFR, Part 26
requirements.
It is the policy of the RECIPIENT to ensure that )r-BEs, as defined in Part 26, have an equal
opportunity to receive and participate in DOT-assisted contracts. It is also their policy:
• To ensure nondiscrimination in the award and administration of DOT-assisted contracts.
• To create a level playing field on which DBE's can compete fairly for 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 I~articipation in, deny any person the benefits of,
or otherwise discriminate against anyone in connection with the award and performance of any
contract covered by 49 CFR, Part 26 on the basis of race, color, sex, or national origin. In
administering the local agency components of the DBE Program Plan, the RECIPIENT will not,
directly, or through contractual or other arrangeme;nts, use criteria or methods of administration
that have the effect of defeating or substantially impairing accomplishment of the objectives of
the DBE Program Plan with respect to individuals of a particular race, color, sex, or national
origin.
IV Annual DBE Submittal Form (§26.21)
The RECIPIENT will provide to the Caltrans District Local Assistance Engineer (DEAF) 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, and electronic mailing address of the designated DBELO, and
the choice of Prompt Pay Provision to be used by the RECIPIENT for the following FFY.
V Race-Neutral Means of Meeting the 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 includes any time a DBE wins a prime contract through
customary competitive procurement procedures, is awarded a subcontract on a prime contract that does not carry a
DBE goal, or even if there is a DBE goal, wins a subcontract from a prime contractor that did not consider its
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 DBEs, 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 develop their capability to utilize emerging technology
and conduct business through electronic media.
VI Race Conscious Means of Meeting the 1)verall 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 controlled by African Americans, Native Americans, Women,
and Asian Pacific Americans.
VII Quotas (§26.43)
RECIPIENT will not use quotas or set-asides in any way in the administration of the local agency component of
the DBE Program Plan.
VIII DBE Liaison Officer (DBELO) (§26.25;
RECIPIENT has designated a DBE Liaison Officer. 'Che DBELO is responsible for implementing the DBE
Program Plan, as it pertains to the RECIPIENT, and ensures that the RECIPIENT is fully and properly advised
concerning DBE Program Plan matters. [Specify resosrces 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 name, 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 and included on the DBE Amlual Submittal Form.
The DBELO is responsible for developing, implementing, and monitoring the RECIPIENT'S requirements of the
DBE Program Plan in coordination with other approp:-iate officials. Duties and responsibilities include the
following:
1. Gathers and reports statistical data and other i~zformation as required.
2. Reviews third party co~zh~acts 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 cn•e made available to DBEs in a timely manner.
5. Analyzes DBE participation and identifies way:; to encourage participation through race-neutral means.
6. Participates in pre-bid meetings.
7. Advises the CEO/governing body on DBE mattE~rs arzd DBE race-neutral issues.
8. Provides DBEs with information and reconzmer!ds 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 conh~acting 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 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.). [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 be 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 equivalent will be included in each DOT-assisted prime
contract:
A. CONTRACT ASSURANCE
The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the
performance of this contract. The contractor shall carry out applicable requirements of 49 CFR, Part 26 in the
award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a
material breach of this contract, which may result in the termination of this contract or such other remedy, as
recipient deems appropriate.
[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/LocalPrograms under "Publications."]
B. PROMPT PAYMENT
Prompt Progress Payment to Subcontr:~ctors
The local agency shall require contractors anti subcontractors to be timely paid as set forth in Section
7108.5 of the California Business and Profess ions 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 the violating contractor or subcontractor to the penalties,
sanctions, and other remedies of that Section. This requirement shall not be construed to limit or impair
any contractual, administrative, or judicial remedies, otherwise available to the contractor or
subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient
subcontractor performance, and/or noncompliance by a subcontractor. This clause applies to both DBE
and non-DBE subcontractors.
Prompt Payment of Withheld Funds to Subcontractors
The local agency shall ensure prompt and full payment of retainage from the prime contractor to the
subcontractor within thirty (30) days after the su'ocontractor's work is satisfactorily completed and
accepted. This shall be accompanied by including either (1), (2), or (3) of the following provisions [local
agency equivalent will need Caltrans approval] in their federal-aid contracts to ensure prompt and full
payment of retainage [withheld funds] to subcontractors in compliance with 49 CFR 26.29.
1. No retainage will be held by the agency from progress payments due to the prime contractor. Prime
contractors and subcontractors are prohibitedfi•o»z holding retainage front subcozzh•actors. Any delay or
postponement of payme~zt nzay take place only for good cause and with the agency's prior writte~z
approval. Any violation of these provisio~zs shall subject the violating contractor or subconb•actoz• to the
penalties, sanctions, and other remedies speci Fred in Section 7108.5 of the California Business and
Professions Code. This requirement shall zzot be construed to limit or impair any contractual,
administrative, or judicial remedies, otherwise available to the contractor or subconb•actor i~z the event
of a dispute involving late payment or nonpayment by the contractor, deficient subco~ztractor
performance, and/or no~zconzpliance by a subcontractor. This clause applies to both DBE azzd 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 conb•actor or by G' subcozztractor must be paid in full to the earning
subcontractor in 30 days after the subcontracior's work is satisfactorily completed. Any delay or
postponement of payment may take place only for good cause azzd with the agency's prior written
approval. Any violation of these provisions shall subject the violating conh•actor or subco~zb•actor to the
penalties, sanctions, and remedies specified in Section 7108.5 of the California Business and Professions
Code. This requirement shall not be conslT•uea'to limit or impair any cozzbactual, administrative, or
judicial remedies, otherwise available to the conh•octor or subcontractor in the event of a dispute
involving late payment or nonpayment by the contractor, deficient subcontractor pet formance, and/or
zzonconzpliazzce by a subcontractor. This clause applies to both DBE and non-DBE subcontzactoz•s.
3. The agency shall hold retaizzage from the prime contractor and shall make prompt
and regular incremental acceptances of portions, as determizzed by the agency of the
cozztract work azzd pay z•etainage 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 paynaezzt for work satisfactorily completed
and accepted including irzcrenaental acceptances ofportions of the cozzh•act work by the
agency. Any delay or postponement of payment nzay take place only for good cause and
with the agency's prior written approval. Azzy violation of these provisions shall subject
the violating prime contractor to the pezzalties, sazzctions, and other remedies specified izz
Section 7108.5 of the California Business and Professions Code. This requiz•emezzt shall
not be cotzsd•ued to limit or impair any contz•actual, administrative, or judicial remedies,
otherwise available to the contzactor or subcozzh•actor izz the event of.• a dispute involving
late payment or nonpayment by the contractor; deficient subcontractor performance;
and/or zzonconzpliazzce by a subcontractor. Tlzis clause applies to both DBE and nozz-
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 (§ 26.49)
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 on 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 BidderlProposer-UDBE
Commitment (Consultant Contract), (Exhibit 10-0(1) "Local Agency Bidder/Proposer-DBE
Commitment (Consultant Contract)") or Exhibit 15-G(1) "Local Agency Bidder-UDBE
Commitment (Construction Contract) to the DLAE at 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 Contracts) -Information" or Exhibit 10-0(2)
"Local Agency ProposerBidder-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 F 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 irztnediately 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 DOT-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.
$y (~ ~ ~~' Z2. ~~S Phone Number: (408) 777-3212
David W. Knapp, City anager
City of Cupertino
This California Department of Transportation's Di;~advantaged Business Enterprise Program
Implementation Agreement is accepted by:
4~ Date: ~
~~~g" ~~
[Signature of DLAE]
[Print Name of DLAE]
Distribution: (])Original-DEAF
(2) Signed copy by the DLAE -Local Agency
(Updated: March 4, 2009)