HomeMy WebLinkAboutRes 01-15 Disadvantaged Business Enterprise Program INTEROFFICE MEMORANDUM
CITY OF PALM DESERT
TO: Honorable Mayor and City Council
FROM: Joseph S. Gaugush, Director of Public Works/City Engineer
SUBJECT: DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
DATE: February 8, 2001
RECOMMENDATION:
Waive further reading and adopt Resolution 01- 15 , adopting an overall
annual disadvantaged business enterprises goal for Federal Fiscal Year 2000-
2001 Department of Transportation assisted contracts.
BACKGROUND:
New Federal regulations were issued regarding disadvantaged business
enterprises (DBE) and establishing goals for inclusion in contracts that have
Federal funding. With the assistance of Nickerson & Associates, Inc., the city
developed a new DBE program that has been reviewed an accepted by
Caltrans.
The adoption of this resolution will complete all necessary steps to finalize
and implement the city's DBE program.
OSEPH S. GAUGUSH, P.E. E EWED AN C CUR
ACM/DEVELOPMENT SERVICES
JSG:TGB
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Attachments REVIEWED AND CONCU
CITY MANAGER
CITY COUNCIL,ACTION:
APPROVED ✓✓ DENIED
RECEIVED OTHER
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ABSENT: ' SfYY1 CLC Hes
ABSTAIN: it fr
VERIFIED BY* ci Z }0 frif m
Originaa. on File witN City Clerk's Offic4
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STATE OF tALIFORNIA—BUSINESS,TRANSPOR N AND HOUSING AGENCY GRAY DAVIS,Governor
DEPARTMENT OF RECEIVED
TRANSPORTATION
District 8 JAN 2 4 2001
Mailing Address: 464 WEST FOURTH STREET, 6th Floor
Physical Address: 655 WEST FIFTH STREET, 2nd Floor PUBLIC WORKS DEPARTMENT
SAN BERNARDINO, CA 92401-1400 CITY OF PALM DESERT
PHONE (909)383-4030
FAX (909)383-4129
January 22, 2001
2000 DBE Program
Mr. Tom Bassler
DBE Liaison Officer
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
Dear Mr. Bassler:
We have reviewed your revisions made to your agency's DBE Program that we sent to you
on December 21, 2000. We are pleased to inform you that your DBE Program is in
compliance, but before we can approve your DBE Program, we need for you to send us
copies of your Proof of Publications and a signed copy of the Council Resolution. After
these are received, we will send you an acceptance letter and a signed copy of your DBE
Program.
If you have any questions or need additional clarification, please call Ms. Lana Beals, of
my staff, at (909) 383-6460.
Sincerely,
LOUIS W. FLORES
Chief, Local Assistance
DISADVAN'I ED BUSINESS ENTERPRISE (DE 'ROGRAM
CITY OF PALM DESERT
I Definitions of Terms
The terms used in this program have the meanings defined in 49 CFR §26.5.
II Objectives [Policy Statement (§§26.1, 26.23)
The City of Palm Desert 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 Desert has received Federal financial assistance from the DOT, and as a condition of
receiving this assistance, the City of Palm Desert will sign an assurance that it will comply with 49
CFR Part 26.
It is the policy of the City of Palm Desert to ensure that DBEs, as defined in part 26, have an equal
opportunity to receive and participate in DOT-assisted contracts. It is also our policy:
To ensure nondiscrimination in the award and administration of DOT-assisted contracts;
To create a level playing field on which DBEs can compete fairly for DOT-assisted
contracts;
To ensure that the DBE Program is narrowly tailored in accordance with applicable law;
To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted
to participate as DBEs;
To help remove barriers to the participation of DBEs in DOT-assisted contracts; and
To assist the development of firms that can compete successfully in the market place outside
the DBE Program.
The Public Works Department Senior Management Analyst has been delegated as the DBE Liaison
Officer. In that capacity, the Senior Management Analyst 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 Desert in its financial
assistance agreements with the California Department of Transportation (Caltrans).
City of Palm Desert has disseminated this policy statement to City of Palm Desert City Council and
all the components of our organization. We have distributed this statement to DBE and non-DBE
business communities that perform work for us on DOT-assisted contracts by publishing this
statement in general circulation, minority-focused and trade association publications.
III Nondiscrimination (§26.7)
City of Palm Desert 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.
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In administering its DBE pr in, the City of Palm Desert will not, d ly or through contractual
or other arrangements,use criteria or methods of administration that have the effect of defeating or
substantially impairing accomplishment of the objectives of the DBE program with respect to
individuals of a particular race, color, sex, or national origin.
•
IV DBE Program Updates (§26.21)
City of Palm Desert will continue to carry out this program until the City of Palm Desert has
established a new goal setting methodology or until significant changes to this DBE Program are
adopted. City of Palm Desert will provide to Caltrans a proposed overall goal and goal setting
methodology and other program updates by June 1 of every year.
V Quotas (§26.43)
City of Palm Desert will not use quotas or set asides in any way in the administration of this DBE
program.
VI DBE Liaison Officer (DBELO) (§26.45)
City of Palm Desert has designated the following individual as the DBE Liaison Officer, Tom
Bassler, Senior Management Analyst, 73-510 Fred Waring Drive, Palm Desert, CA 92260,
Telephone (760) 346-0611, Email Tbassler@ci.palm-desert.ca.us. In that capacity, Mr. Bassler
is responsible for implementing all aspects of the DBE program and ensuring that the City of Palm
Desert complies with all provisions of 49 CFR Part 26. This is available on the Internet at
osdbuweb.dot.gov/main.cfm. Mr. Bassler has direct, independent access to the City Manager's
Office concerning DBE program matters. Mr. Bassler has two support personnel who shall devote
a portion of their time to the program. An organization chart displaying the DBELO's position in
the organization is found in Attachment 1 to this program.
The DBELO is responsible for developing, implementing and monitoring the DBE program, in
coordination other appropriate officials. Duties and responsibilities include the following:
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 DBEs 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 City of Palm Desert's 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 DBEs with information and assistance in preparing bids, obtaining bonding and
insurance.
Plans and participates in DBE training seminars.
Provides outreach to DBEs and community organizations to advise them of opportunities.
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VII Federal Financial Assistance Agreement Assurance (§26.13)
City of Palm Desert 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, refer the matter for
enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31
U.S.C. 3801 et seq.).
VIII DBE Financial Institutions
It is the policy of the City of Palm Desert to investigate the full extent of services offered by
financial institutions owned and controlled by socially and economically disadvantaged individuals
in the community, to make reasonable efforts to use these institutions, and to encourage prime
contractors on DOT-assisted contracts to make use of these institutions.
Information on the availability of such institutions can be obtained from the DBE Liaison Officer.
The Caltrans Disadvantaged Business Enterprise Program may offer assistance to the DBE Liaison
Officer.
IX Directory (§26.31)
City of Palm Desert will refer interested persons to the DBE directory available from the Caltrans
Disadvantaged Business Enterprise Program web site at www.dot.ca.gov/hq/bep.
X Overconcentration (§26.33)
City of Palm Desert has not identified any types of work in DOT-assisted contracts that have a
overconcentration of DBE participation. If in the future City of Palm Desert identifies the need to
address overconcentration, measures for addressing overconcentration will be submitted to the
DLAE for approval.
XI Business Development Programs (§26.35)
City of Palm Desert does not have a business development or mentor-protegee program. If the City
of Palm Desert 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.
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XII Required Contract Clauses (§§26.13, 26.29)
contract Assurance
City of Palm Desert ensures that the following clause is placed in every DOT-assisted contract and
subcontract:
The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or
sex in the performance of this contract. The contractor shall carry out applicable requirements of
49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor
to carry out these requirements is a material breach of this contract, which may result in the
termination of this contract or such other remedy as recipient deems appropriate.
Prompt Payment
City of Palm Desert ensures that the following clauses or equivalent will be included in each DOT-
assisted prime contract:
Satisfactory Performance
The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory
performance of its contract no later than 10 days from the receipt of each payment the prime
contractor receives from City of Palm Desert. 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 Desert. This clause applies to both DBE and non-DBE subcontractors
Release of Retention
The prime contractor agrees further to release retention 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 Desert. This clause applies to both DBE and non-DBE subcontractors.
XIII Monitoring and Enforcement Mechanisms (§26.37)
The City of Palm Desert 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 Desert will review the award documents for the portion
of items each DBE and first tier subcontractor will be performing and the dollar value of that work.
With these documents the RE/Contract Manager will be able to determine the work to be performed
by the DBEs or subcontractors listed.
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Preconstruction Conference
A preconstruction conference will be scheduled between the RE and the contractor or their
representative to discuss the work each DBE subcontractor will perform. Before work can begin
on a subcontract,the local agency will require the contractor to submit a completed"Subcontracting
Request,"Exhibit 16-B of the LAPM or equivalent. When the RE receives the completed form it
will be checked for agreement of the first tier subcontractors and DBEs. The RE will not approve
the request when it identifies someone other than the DBE or first tier subcontractor listed in the
previously completed"Local Agency Bidder DBE Information,"Exhibit 15-G. The"Subcontracting
Request" will not be approved until any discrepancies are resolved. If an issue cannot be resolved
at that time, or there is some other concern, the RE will require the contractor to eliminate the
subcontractor in question before signing the subcontracting request. A change in the DBE or first
tier subcontractor may be addressed during a substitution process at a later date.
Suppliers, vendors, or manufacturers listed on the "Local Agency Bidder DBE Information" will
be compared to those listed in the completed Exhibit 16-I of the LAPM or equivalent. Differences
must be resolved by either making corrections or requesting a substitution.
Substitutions will be subject to the Subletting and Subcontracting Fair Practices Act(FPA). Local
agencies will require contractors to adhere to the provisions within Subletting and Subcontracting
Fair Practices Act (State Law) Sections 4100-4144. FPA requires the contractor to list all
subcontractors in excess of one half of one percent(0.5%) of the contractor's total bid or$10,000,
whichever is greater. The statute is designed to prevent bid shopping by contractors. The FPA
explains that a contractor may not substitute a subcontractor listed in the original bid except with
the approval of the awarding authority.
The RE will give the contractor a blank Exhibit 17-F, "Final Report Utilization of Disadvantaged
Business Enterprises,First Tier Subcontractors"and will explain to them that the document will be
required at the end of the project, for which payment can be withheld, in conformance with the
contract.
Construction Contract 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: The DBE Liaison Officer will perform
a preliminary investigation to identify any potential issues related to the DBE subcontractor
performing a commercially useful function. Any substantive issues will be forwarded to the
Caltrans Disadvantaged Business Enterprise Program. If the contractor fails to adequately explain
why there is a discrepancy, payment for the work will be withheld and a letter will be sent to the
contractor referencing the applicable specification violation and the required withholding of
payment.
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If the contract requires the ; Littal of a monthly truck document, th ntractor will be required
to submit documentation to the RE showing the owner's name; California Highway Patrol CA
number; and the DBE certification number of the owner of the truck for each truck used during that
month for which DBE participation will be claimed. The trucks will be listed by California
Highway Patrol CA number in the daily diary or on a separate piece of paper for documentation.
The numbers are checked by inspectors regularly to confirm compliance.
Providing evidence of DBE payment is the responsibility of the contractor.
Substitution
When a DBE substitution is requested, the RE/Contract Manager will request a letter from the
contractor explaining why substitution is needed. The RE/Contract Manager must review the letter
to be sure names and addresses are shown, dollar values are included, and reason for the request is
explained. If the RE/Contract Manager agrees to the substitution, the RE/Contract Manager will
notify, in writing, the DBE subcontractor regarding the proposed substitution and procedure for
written objection from the DBE subcontractor in accordance with the Subletting and Subcontracting
Fair Practices Act. If the contractor is not meeting the contract goal with this substitution, the
contractor must provide the required good faith effort to the RE/Contract Manager for local agency
consideration.
If there is any doubt in the RE/Contract Manager's mind regarding the requested substitution, the
RE/Contract Manager may contact the DLAE for assistance and direction.
Record Keeping and Final Report Utilization of Disadvantaged Business 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-B.
The DBEs shown on the completed Exhibit 17-F should be the same as those originally listed unless
an authorized substitution was allowed, or the contractor used more DBEs and they were added.
The dollar amount should reflect any changes made in planned work done by the DBE. The
contractor will be required to explain in writing why the names of the subcontractors,the work items
or dollar figures are different from what was originally shown on the completed Exhibit 15-G when:
There have been no changes made by the RE.
The contractor has not provided a sufficient explanation in the comments section of the completed
Exhibit 17-F.
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The explanation will be att 1 to the completed Exhibit 17-F for su tal. The RE will file this
in the project records.
The local agency's Liaison Officer will keep track of the DBE certification status on the Internet at
www.dot.ca.gov/hq/bep and keep the RE informed of changes that affect the contract. The RE will
require the contractor to act in accordance with existing contractual commitments regardless of
decertification.
The DLAE will use the PS&E checklist to monitor the City of Palm Desert's commitment to require
bidders list information to be submitted to the City of Palm Desert from the awarded prime and
subcontractors as a means to develop a bidders list. This monitoring will only take place if the
bidders list information is required to be submitted as stipulated in the special provisions.
City of Palm Desert will bring to the attention of the DOT through the DLAE any false, fraudulent,
or dishonest conduct in connection with the program, so that DOT can take the steps (e.g., referral
to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action
under suspension and debarment or Program Fraud and Civil Penalties rules) provided in §26.109.
City of Palm Desert also will consider similar action under our own legal authorities, including
responsibility determinations in future contracts.
XIV Overall Goals (§26.45)
Amount of Goal
The City of Palm Desert's overall goal for the Federal Fiscal Year FY 2001 is the following: 14%
of the Federal financial assistance in FHWA-assisted contracts. This overall goal is broken down
into 7% race-conscious and 7% race-neutral components.
Methodology
The City of Palm Desert is centrally located with 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 Desert, Indian Wells, Desert
Hot Springs, Palm Springs, Cathedral City, Rancho Mirage, La Quinta, Indio and Coachella, and
portions of the unincorporated County of Riverside. The City of Palm Desert represents 26 square
miles and boasts a permanent population of 40,007. The City's population increases by
approximately 15,000 during its peak season, for a seasonal population of approximately 55,007.
The City of Palm Desert anticipates Federal Highways Administration (FHWA) funding for Federal
Fiscal Year 2000/2001 in the amount of $1,262,579.00. The following represents the City's
projected FHWA funded, projects, contracts and expenditures:
1. Monterey Avenue Landscaping and Sculpture - This project will enhance the Monterey
Avenue median and parkway from Interstate 10 south to Dinah Shore Drive (approximately
700 feet) with a unique blend of landscape and art. The work will consist of removing the
existing median and replacing it with a block art sculpture, landscaping and lighting. The
parkway slopes will have retaining planters, landscaping and lighting.
Total Estimated Cost: $1,216,300
Federal Funding Source: Transportation Enhancement Activities (TEA) Funds - $576,000
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2. Fred Waring Drive B ;and Street Widening-This project w iden Fred Waring Drive
from just west of the Palm Valley Storm Channel to Town Center Way. The work includes
widening the road and bridge, from four to six travel lanes, and the installation of landscape
and irrigation improvements.
Total Estimated Cost: $2,000,000
Federal Funding Source: Surface Transportation Program (STP) - $288,686
3. Frank Sinatra Drive - This project provide new pavement in the westbound travel lane on
Frank Sinatra Drive, Cook Street to Gerald Ford Drive, and provide soil stabilization along
3,500 linear feet of shoulder.
Total Estimated Cost: $217,440
Federal Funding Source: Congestion Mitigation Air Quality (CMAQ) - $192,000
4. Frank Sinatra Drive Chemical Stabilization - Improvements include the stabilization of
median island on Frank Sinatra Drive from Cook Street to Hollister Drive (approx. 6,000
linear feet). The work involves the removal of excess sand and replacement with colorized
decomposed granite material, integrated with stabilizer material.
Total Estimated Cost: $79,634
Federal Funding Source: Congestion Mitigation Air Quality (CMAQ) - $70,500
5. Cook Street (Frank Sinatra Drive to Gerald Ford Drive) - The work includes installation of
a wind fence and shoulder stabilization on Cook Street for approximately 3,000 linear feet.
Total Estimated Cost: $31,059
Federal Funding Source: Congestion Mitigation Air Quality (CMAQ) - $27,497
6. Portola Avenue (south of Frank Sinatra Drive) -The work includes vegetative and chemical
stabilization of a 20 acre vacant city owned parcel.
Total Estimated Cost: $38,850
Federal Funding Source: Congestion Mitigation Air Quality (CMAQ) - $34,395
Work Category SIC Category Estimated Dollar % Federal Funding
Value
Consulting Services 8711/8713/8748 $126,257.00 10%
Bridge 1771/1622/1611 $288,686.00 23%
Paving 1611/2951 $150,000.00 12%
Landscaping 1611/0781/0782 $697,636.00 55%
The City of Palm Desert 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
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geographical boundaries 1 ;ed for the purpose of calculating disadvantaged Business
Enterprise (DBE) goal for FY 2000/2001. The following calculations are based upon the Caltrans
DBE Director 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.
.10(DBEs in SIC 8711/8713/874a .23(DBEs in SIC 1771/1622L1611 .12(DBEs in SIC 1611/7951 .55(DBEs in SIC 1611/0781/078V
CBPs in SIC 8711/8713/8748 CBPs in SIC 1771/1622/1611 CBPs in SIC 1611/2951 CBPs in SIC 1611/0781/0782
.10(12) .23(451 .12(36) .55(32)
437 1245 131 779
.10(.0274) .23(.0361) .12(.2748) .55(.0474)
.00274 .008303 .032976 .02607
Base Figure = (.070089) 100=07.0089 =7%
The City of Palm Desert has elected not to adjust the base figure of 7% during Fiscal Year
2000/2001. The base figure may be adjusted in future Fiscal Years as project specific data becomes
available.
Breakout of Estimated Race-Neutral and Race-Conscious Participation
Of the annual 7% goal for DBE participation, the City of Palm Desert 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.
Process
Starting with the Federal fiscal year 2002, the amount of overall goal, the method to calculate the
goal, and the breakout of estimated race-neutral and race-conscious participation will be required
annually by June 1 in advance of the Federal fiscal year beginning October 1 for FHWA-assisted
contracts. Submittals will be to the Caltrans' DLAE. An exception to this will be if FTA or
FAA recipients are required by FTA or FAA to submit the annual information to them or a
designee by another date. FHWA recipients will follow this process:
Once the DLAE has responded with preliminary comments and the comments have been
incorporated into the draft overall goal information, the City of Palm Desert 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 Desert's principal
office for 30 days following the date of the notice, and informing the public that City of Palm
Desert comments will be accepted on the goals for 45 days following the date of the notice.
Advertisements in newspapers, minority focus media, trade publications, and web-sites will be
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the normal media to accomi this effort. The notice will include z asses to which
comments may be sent and addresses (including offices and web-sites) where the proposal may
be reviewed.
The overall goal re-submission to the Caltrans DLAE, will include a summary of information
and comments received during this public participation process and City of Palm Desert's
responses. This will be due by September 1 to the Caltrans DLAE. The DLAE will have a
month to make a final review so the City of Palm Desert may begin using the overall goal on
October 1 of each year.
If there is a design build please refer to Appendix B of this Model DBE Program.
XV Contract Goals (§26.51)
The City of Palm Desert will use contract goals to meet any portion of the overall goal the City
does not project being able to meet by the use of race-neutral means. Contract goals are
established so that, over the period to which the overall goal applies, they will cumulatively
result in meeting any portion of the overall goal that is not projected to be met through the use of
race-neutral means.
Contract goals will be established only on those DOT-assisted contracts that have subcontracting
possibilities. Contract goals need not be established on every such contract, and the size of
contract goals will be adapted to the circumstances of each such contract (e.g., type and location
of work, availability of DBEs to perform the particular type of work). The contract work items
will be compared with eligible DBE contractors willing to work on the project. A determination
will also be made to decide which items are likely to be performed by the prime contractor and
which ones are likely to be performed by the subcontractor(s). The goal will then be
incorporated into the contract documents. Contract goals will be expressed as a percentage of
the total amount of a DOT-assisted contract.
XVI Transit Vehicle Manufacturers (§26.49)
If DOT-assisted contracts will include transit vehicle procurements, City of Palm Desert will
require each transit vehicle manufacturer, as a condition of being authorized to bid or propose on
transit vehicle procurements, to certify that it has complied with the requirements of 49 CFR Part
26, Section 49. City of Palm Desert will direct the transit vehicle manufacturer to the subject
requirements located on the Internet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm.
XVII Good Faith Efforts (§26.53)
Information to be Submitted
City of Palm Desert 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.
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Each solicitation for which itract goal has been established will i [re the bidders/offerors
to submit the following information to the City of Palm Desert Public Works Department, 73-
510 Fred Waring Drive, Palm Desert, CA 92260 no later than 4:00 p.m. on or before the fourth
day, not including Saturdays, Sundays and legal holidays, following 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 attached.
Mr. Michael Errante, Engineering Manager, or his designated Project Manager shall be
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
City of Palm Desert will ensure that all information is complete and accurate and adequately
documents the bidder/offeror's good faith efforts before a commitment to the performance of the
contract by the bidder/offeror is made.
Administrative Reconsideration
Within 10 days of being informed by City of Palm Desert 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: Richard J. Folkers, P.E., Assistant City Manager for Development
Services, 73-510 Fred Waring Drive, Palm Desert, CA 92260, telephone (760) 346-0611, Email
rfolkers@ci.palm-desert.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 Desert will send the bidder/offeror a written decision on
reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or
make adequate good faith efforts to do so. The result of the reconsideration process is not
administratively appealable to Caltrans, FHWA or the DOT.
Page 11 of 22
£
Good Faith Efforts when a IJDE is Replaced on a Contract
City of Palm Desert will require a contractor to make good faith efforts to replace a DBE that is
terminated or has otherwise failed to complete its work on a contract with another certified DBE,
to the extent needed to meet the contract goal. The prime contractor is required to notify the RE
immediately of the DBE's inability or unwillingness to perform and provide reasonable
documentation.
In this situation, the prime contractor will be required to obtain City of Palm Desert prior
approval of the substitute DBE and to provide copies of new or amended subcontracts, or
documentation of good faith efforts. If the contractor fails or refuses to comply in the time
specified, City of Palm Desert contracting office will issue an order stopping all or part of
payment/work until satisfactory action has been taken. If the contractor still fails to comply, the
contracting officer may issue a termination for default proceeding.
XVIII Counting DBE Participation (§26.55)
City of Palm Desert will count DBE participation toward overall and contract goals as provided
in the contract specifications for the prime contractor, subcontractor,joint venture partner with
prime or subcontractor, or vendor of material or supplies. See the Caltrans' Sample Boiler Plate
Contract Documents previously mentioned. Also, refer to XI, A. "After Contract Award."
XIX Certification (§26.83(a))
City of Palm Desert ensures that only DBE firms currently certified on the Caltrans' directory
will participate as DBEs in our program.
XX Information Collection and Reporting
Bidders List
The City of Palm Desert 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 DRE,s
Prime contractors are required to maintain records and documents of payments to DBEs for three
years following the performance of the contract. These records will be made available for
inspection upon request by any authorized representative of the City of Palm Desert, 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 Desert to ensure that the
actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the
schedule of DBE participation.
Page 12 of 22
Reporting to Caltrans
City of Palm Desert- Final utilization of DBE participation will be reported to the DLAE using
Exhibit 17-F of the Caltrans' LAPM.
Confidentiality
City of Palm Desert will safeguard from disclosure to third parties information that may
reasonably be regarded as confidential business information, consistent with Federal, state, and
local laws.
CARLOS L. ORTEGA Date: / /G/°/
City Manager
This Disadvantaged Business Enterprises Program is accepted by:
[Signature of DLAE] Date:
Page 13 of 22
APPENDIX A TO PART GUIDANCE CONCERNING GOOD TH 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 fally 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/or written notices)the interest of all certified DBEs who have the capability to perform the work of the
contract. The bidder must solicit this interest within sufficient time to allow the DBEs to respond to the
solicitation. The bidder must determine with certainty if the DBEs are interested by taking appropriate steps
to follow up initial solicitations.
B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood that
the DBE goals will be achieved. This includes,where appropriate,breaking out contract work items
into economically feasible units to facilitate DBE participation,even when the prime contractor might
otherwise prefer to perform these work items with its own forces.
C. Providing interested DBEs with adequate information about the plans, specifications, and
requirements of the contract in a timely manner to assist them in responding to a solicitation.
D. (1) Negotiating in good faith with interested DBEs. It is the bidder's responsibility to make a
portion of the work available to DBE subcontractors and suppliers and to select those portions of the
work or material needs consistent with the available DBE subcontractors and suppliers, so as to
facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and
telephone numbers of DBEs that were considered; a description of the information provided
regarding the plans and specifications for the work selected for subcontracting; and evidence as to
why additional agreements could not be reached for DBEs to perform the work.
Page 14 of 22
t Imo^
(2)A bidder using go isiness judgment would consider a numt 'factors in negotiating with
subcontractors,incluc...b.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 DBEs is not in itself sufficient reason for a bidder's failure to meet the
contract DBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime
contractor to perform the work of a contract with its own organization does not relieve the bidder of
• the responsibility to make good faith efforts. Prime contractors are not, however, required to accept
higher quotes from DBEs if the price difference is excessive or unreasonable.
E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation
of their capabilities. The contractor's standing within its industry, membership in specific groups,
organizations, or associations and political or social affiliations (for example union vs. non-union
employee status) are not legitimate causes for the rejection or non-solicitation of bids in the
contractor's efforts to meet the project goal.
F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as
required by the recipient or contractor.
G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials,
or related assistance or services.
H. Effectively using the services of available minority/women community organizations;
minority/women contractors'groups; local, state, and Federal minority/women business assistance
offices; and other organizations as allowed on a case-by-case basis to provide assistance in the
recruitment and placement of DBEs.
V. In determining whether a bidder has made good faith efforts,you may take into account the performance of other
bidders in meeting the contract. For example,when the apparent successful bidder fails to meet the contract goal,
but others meet it,you may reasonably raise the question of whether,with additional reasonable efforts,the apparent
successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but meets or
exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with other
factors, as evidence of the apparent successful bidder having made good faith efforts.
Page 15 of 22
APPENDIX B
TO BE USED FOR DESIGN-BUILD CONTRACTS
The following are hereby incorporated into the Agency's Disadvantaged Business Enterprise (DBE)
Program:
II Objectives/Policy Statement (§§26.1, 26.23)
At the end of the first paragraph, add the following:
The Agency recognizes that certain modifications are necessary to adapt the program for
use in connection with design-build contracts, and has therefore established certain procedures
applicable to design-build DBE contracts under the DBE Program. Public Contract Code Section 4109
requires subcontractors to be identified by the prime contractor for the subletting or subcontracting of
any portion of the work in excess of one-half of 1 percent of the prime contractor's total bid. Exceptions
are only in the cases of public emergency or necessity, and then only after a finding reduced to writing
as a public record of the awarding authority setting forth the facts constituting the emergency or
necessity. The written public record of the awarding authority/Agency as to either emergency or
necessity is attached hereto (See Appendix Cfor sample).
XIII Monitoring and Enforcement Mechanisms (§26.37)
At the end of the first paragraph below "After Contract Award", add the following paragraph:
After Design-Build Contract Award
As described in the Section entitled "GOOD FAITH EFFORTS"below, each proposer for an Agency
design-build contract will be required to submit a DBE Performance Plan as part of a responsive
proposal. Following award of a design-build contract and during both the design and construction
portions of the project, the design-build contractor will be required to submit documentation, in the form
ofprogress reports described below, to show that the design-build contractor is meeting the contract goal
for the project, or if the goal is not being met, the design-build contractor must submit satisfactory
evidence that it has made good faith efforts, in accordance with that Section, to meet the goal. Evidence
of good faith efforts, as described in 49 CFR Part 26 Section 26.5349 and Appendix A, will be monitored
by the Agency throughout the duration of the design-build project.
At the end of the first paragraph below "Preconstruction Conference", add the following sentence:
The contractor will promptly provide the Agency with the information required by the form
entitled "Local Agency DBE Information" upon selection of any DBE or other subcontractor not
previously identified by the design-build contractor. During the course of the contract, differences must
be explained and resolved by either making corrections or requesting a substitution.
Page 16 of 22
•
At the end of the fourth paragraph below "Construction Contract Monitoring". add the following
paragraph:
The contractor will provide DBE Progress Reports to the Agency with each invoice and
• will provide an annual report on or before August 1 of each year of the design-build contract. Each
report must also include a narrative summary stating whether the contractor is on target with respect to
the DBE goal set forth in the design-build contract, whether the goal has been exceeded (stating the
amount of the excess), or whether the contractor is behind target(stating the amount of the deficit).
XVII Good Faith Efforts (§26.53)
At the end of the third paragraph below "Information to be Submitted", add the following items:
7. A DBE Performance Plan containing a detailed description of the design-build
contractor's planned methodology for achieving the DBE goal stated in the contract,
including a description of the good faith efforts the design-build contractor intends to
undertake to achieve that goal.
8. A design-build proposal must also include an affidavit that the proposer will either
attain the DBE goals for the design-build contract or will exercise good faith efforts to do
so.
At the end of the first paragraph below "Demonstration of Good Faith Efforts", add the following
sentence:
. If it is a design-build contract, each contractor proposing will be required to submit a
DBE Performance Plan as part of a responsive proposal and good faith efforts.
iddle°32,
CARLOS L. ORTEGA Date: //G//
City Manager
This Disadvantaged Business Enterprise Program for design-build contracts is accepted by:
[Signature of DLAE] Date:
Page 17 of 22
APPENDIX C
RESOLUTION OF THE CITY OF PALM DESERT REGARDING NECESSITY
OR EMERGENCY FOR SUBSEQUENT SUBCONTRACTOR
•
IDENTIFICATION AND SELECTION FOR DESIGN-BUILD CONTRACTS
(REQUIRED BY PUBLIC CONTRACT CODE SECTION 4109
ENTITLED "Public Emergency Grounds For Change")
A. EXPLANATION OF PUBLIC NECESSITY OR EMERGENCY:
B. FACTS CONSTITUTING THE PUBLIC NECESSITY OR EMERGENCY:
C. FINDINGS:
D. RESOLUTION FOR SUBSEQUENT IDENTIFICATION OF
SUBCONTRACTORS:
E. ADOPTION OF PROCEDURE TO BE USED BY DESIGN-BUILD
CONTRACTOR FOR SUBSEQUENT IDENTIFICATION OF SUBCONTRACTORS:
F. CERTIFICATE OF SECRETARY
1. MOTION MADE AND DATE
2. VOTING RESULTS
3. SIGNATURES:
(a) (Secretary)
(b) (Chairperson)
Page 18 of 22
(Agency Letterhead)
ANNUAL OVERALL GOAL INFORMATION
TO: CALTRANS DISTRICT 8
District Local Assistance Engineer
The amount of overall goal,methodology,breakout of estimated race-neutral and race-conscious participation,and
any DBE program updates are presented herein in accordance with Title 49 of the Code of Federal Regulations Part
26, and as described in the Local Assistance Procedures Manual.
The City Palm Desert submits our annual overall goal information for your review and comment. We [have
established an annual overall DBE goal of %for the Federal Fiscal Year 2000/2001,beginning on October
1, 2000 and ending on September 30, 2001.
Methodology
[Before working on this section,refer to the two step process and choice of methods discussed in Chapter 9 of the
Local Assistance Procedures Manual.]
Breakout of Estimated Race-Neutral and Race-Conscious Participation
[Before working on this section,refer to the race-neutral and race-conscious discussion in Chapter 9 of the Local
Assistance Procedures Manual.]
DBE Program Updates
[Include in this section any changes to the approved DBE program]
DBE Liaison Officer Date
To be used for submittal due June 1 of every year.
2 To be used for submittal due September 1 of every year.
Page 19 of 22
•
GUIDELINES FOR CIVIL RIGHTS COMPLIANCE REVIEWS OF LOCATION
PROCEDURES
GENERAL
In accordance with Title VI and Title VIII of the Civil Rights Act of 1964 and 1968, local
agencies are required to follow certain location procedures on Federal-aid highway projects.
This guideline may be used to suggest areas for review.
As a result of the choice of highway locations or the procedures used in arriving at the choice,
has the Agency,State,or Federal Highway Administration received any civil rights
complaints? If so, what were the complaints and what has been done to resolve
them?
2.a. To what extent does the agency employ minority staff personnel in the location
program under review? Are these personnel involved in the following:
Developing and comparing alternatives,
Assessing impacts, and
When used, operating through consultant contracts?
Are they involved in any other related areas? If not,what is being done to recruit and
hire minority personnel?
2.b. What training or education sessions are conducted to increase the skills of minorities
as well as non-minorities? Are promotional opportunities available for minorities?
Does the Agency fill professional as well as nonprofessional positions with
minorities? If not, what is being done to rectify these situations?
Does the Agency choose consultant firms without discrimination on the basis of race,sex,
color, or national origin? Is there evidence that minority consultant and consultants with
minority staffs offered equal employment opportunity? How many of these firms have
contracts and what type are they?
Does the process for preparation of Environmental Impact Statements, or do the
Environmental Impact Statements themselves,reflect any indication of a violation of any of
the provisions of Title VI or Title VIII? If so,elaborate.
Page 20 of 22
Location Determination
When reviewing the process leading to location determination on a specific project, the
following questions are to be used:
l.a. To what extent has the agency or consultant compiled the following information for use in the
location determination?
1.b. The racial character of the portion of the area through which the alternate locations pass,
including the approximate number by race of persons and families affected by each alternate
(affected means all persons directly displaced or located in areas directly adjoining the road.)
1.c. The social and economic character of the area through which alternates pass,
including levels of income, whether the area is commercial or residential, and the
approximate number of minority and non-minority owners of businesses and
residences in the area.
1.d. The racial character of the people employed in the area affected by each alternate.
2. How was the racial and ethnic data used to identify possible problem areas and
adverse impacts,such as relocation difficulties or possible changes in minority income
capabilities, mobility, or community cohesion? What efforts have been made to
rectify these problem areas and minimize the adverse impacts?
3. Will a minority area be bypassed or separated from contiguous areas by an of the
alternatives,and if so,what effect will this have on the minority community? To what
extent will it perpetuate patterns of segregation?
4. How will each of the alternates affect the use of various community facilities and
services such as hospital, libraries, shopping areas, fire stations,police installations,
schools,churches,parks and recreation centers by minority groups in the area?
5. To what extent will each of the locations produce an adverse effect of residential,
commercial and industrial development existing or planned within minority
communities?
6. What attempt has the Agency made to satisfy minority community planning goals and
needs? To what extent were the goals and needs determined utilizing input from the
minority community?
7. Have the gradeline, safety considerations, cross-street treatment, pedestrian
overpasses, and other design features been established for alternatives to the same
degree in minority areas as in non-minority areas?:
8. Is access to and from the various alternates provided without discrimination?
9. Would the alternates have an effect on traffic volumes on adjacent streets within
minority communities? To what extent has the Agency studied the effect of increased
or decreased traffic on residences and businesses?
10. To what extent have aesthetics,noise,and air quality been considered within minority
communities?
Page 21 of 22
11. Has all the above information been adequately tabulated and mapped for use in the
location determination?
COMMUNITY PARTICIPATION
In any review of projects, a determination should be made that the minority groups have had
an opportunity to provide meaningful input into the decision-making process regarding their
goals and needs as they pertain to the location determination.The following questions should
be used:
To what extent do the Agency's procedures provide for consultation with and dissemination
of information to minority community and groups?
Where non-English speaking minorities are involved,what provisions are made to overcome
language barriers?
How are the minority leaders identified and encouraged to provide suggestions and ask
questions about locations?
To what extent are informal hearings and meetings held with the affected minority
communities and groups?
To what extent does the Agency respond to questions asked and consider comments made by
minorities?
To what extent are minority community and groups represented on the various councils,
boards,and committees, etc.,that provide input to the location determination? How were
these representatives selected and have they been given an equal voice?
PUBLIC HEARINGS
When reviewing the conduct of public hearings, the following questions should be used:
Are hearing(s) held at a place and time convenient to minority community and groups?
Are advertisements of the hearing(s) (i.e., newspapers, posters, radio, etc.) adequate to
provide notification to minorities?
Where non-English speaking minorities are involved,what provisions are made to overcome
language barriers both in advertisements and at the hearing(s) ?
Are minority leaders specifically invited to attend and present their views? Do they attend?
Do they make comments?
To what extent does the Agency respond to questions asked and consider comments made by
minority persons at the hearing(s)?
To what extent are fair housing requirements and the availability of hardship acquisition
discussed at public hearings when minorities are to be relocated.
Page 22 of 22
r_
CITY OF PALM DESERT
ORGANIZATIONAL CHART
City
Mana er N
ACM Management
Development Analyst
Services (DBE Liaison)
I I
Director Director Director
Building/Safety Public Works Planning
CITY OF PALM DERSRT
DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM
The City of Palm Desert announces the renewal of its DBE program.
Pursuant to the U. S. Department of Transportation's Minority Business
Enterprise Rule (49 CFR Part 26), the City of Palm Desert has established
overall goals for the use of disadvantaged businesses in the performance of
contract or subcontracts financed in whole or in part with federal funds
under the Surface Transportation Assistance Act (STAA) of 1982.
For the current Federal Fiscal Year of October 1, 2000, through September
30, 2001, the City of Palm Desert has established a minimum goal of seven
percent participation for disadvantaged businesses in contracts or
subcontracts funded under the STAA.
The public may inspect the goals and a description of how they were set at
the City of Palm Desert Public Works Department, 73510 Fred Waring Drive,
Palm Desert, California, for a period of 30 days from the date that this notice
is first published.
The City of Palm Desert and Caltrans District Office will accept comments on
the goals for a period of forty-five days from the date of this notice.
Interested minority and minority contractor organizations may receive direct
mailing of the complete program and provide written comments to the City
of Palm Desert. All comments from interested parties shall be for information
purposes only.
4_, awl
RACHELLE D. KLASSEN ATE
DEPUTY CITY CLERK
RDK/TGB