HomeMy WebLinkAboutAgreement A-20-445 DBE Implementation Agreement.pdf
Local Assistance Procedures Manual Exhibit 9-A
DBE Implementation Agreement for Local Agencies
Exhibit 9-A: DBE Implementation Agreement for Local Agencies
CALIFORNIA DEPARTMENT OF TRANSPORTATION (CALTRANS)
DISADVANTAGED BUSINESS ENTERPRISE (DBE) IMPLEMENTATION AGREEMENT
For the City/County of__________________________, hereinafter referred to as “SUB-RECIPIENT.”
I.Definition of Terms
The terms used in this agreement have the meanings defined in 49 CFR 26.5.
II.Objective/Policy Statement (49 CFR 26.1 and 26.23)
SUB-RECIPIENT intends to receive federal financial assistance from the U. S. Department of
Transportation (DOT) through the California Department of Transportation (Caltrans), and as a
condition of receiving this assistance, SUB-RECIPIENT will sign the California Department of
Transportation Disadvantaged Business Enterprise Implementation Agreement (hereinafter
referred to as Agreement). SUB-RECIPIENT 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 Transportation (DOT), 49 CFR 26 requirements.
It is the policy of SUB-RECIPIENT to ensure that DBEs, as defined in 49 CFR 26, have an
equal opportunity to receive and participate in DOT-assisted contracts. It is also SUB-
RECIPIENT’s policy:
•To ensure nondiscrimination in the award and administration of DOT-assisted contracts.
•To create a level playing field on which DBE’s can compete fairly for DOT-assisted
contracts.
•To ensure that the DBE participation percentage is narrowly tailored, in accordance with
applicable law.
•To ensure that only firms that fully meet 49 CFR 26 eligibility standards are permitted to
participate as DBEs.
•To help remove barriers to the participation of DBEs in Federal-aid contracts.
•To assist the development of firms that can compete successfully in the market place
outside the DBE Program.
III.Nondiscrimination (49 CFR 26.7)
SUB-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 26 on the basis of race, color, sex, or national
origin. In administering the Local Agency components of the DBE Program Plan, SUB-
RECIPIENT will not, directly, or through contractual or other arrangements, use criteria or
methods of administration that have the effect of defeating or substantially impairing
accomplishment of the objectives of the DBE Program Plan with respect to individuals of a
particular race, color, sex, or national origin.
Page 1 of 8
September 2020
Agreement No. 20-445
Local Assistance Procedures Manual Exhibit 9-A
DBE Implementation Agreement for Local Agencies
IV. Annual DBE Submittal Form (49 CFR 26.21)
SUB-RECIPIENT will provide to the Caltrans District Local Assistance Engineer (DLAE) a
completed Local Agency DBE Annual Submittal Form (Exhibit 9-B), by June 30 of each year for
the following Federal Fiscal Year (FFY). This form must include the name, phone number, email
address of the designated Disadvantaged Business Enterprise Liaison Officer (DBELO), and the
choice of Prompt Pay Provision to be used by SUB-RECIPIENT for the following FFY.
V. Race-Neutral Means of Meeting Caltrans Overall Statewide Annual DBE Goal (49 CFR
26.51(a))
Caltrans expects SUB-RECIPIENT to meet the maximum feasible portion of Caltrans Overall
Statewide Annual DBE Goal through race-neutral means of facilitating DBE participation. Race-
neutral DBE participation includes when 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 the participation of DBE and other small
businesses (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 SUB-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
Page 2 of 8
September 2020
Local Assistance Procedures Manual Exhibit 9-A
DBE Implementation Agreement for Local Agencies
VI.
VII.
VIII.
9. Assisting DBEs and other small businesses to develop their capability to utilize emerging
technology and conduct business through electronic media.
Race-Conscious Means of Meeting Caltrans Overall Statewide Annual DBE Goal (49 CFR
26.51(d))
SUB-RECIPIENT must establish DBE contract goals to meet any portion of Caltrans Overall
Statewide Annual DBE Goal that cannot be achieved through race-neutral means.
Quotas (49 CFR 26.43)
SUB-RECIPIENT will not use quotas or set-asides in any way in the administration of the Local
Agency component of the DBE Program Plan.
DBE Liaison Officer (DBELO) (49 CFR 26.25)
SUB-RECIPIENT has designated a DBE Liaison Officer. The DBELO is responsible for
implementing the DBE Program Plan as it pertains to the SUB-RECIPIENT, and ensures that
the SUB-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 name, address, telephone number, email
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 Annual Submittal Form.
The DBELO is responsible for developing, implementing, and monitoring the SUB-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 DBE contract goals.
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.
Page 3 of 8
September 2020
Local Assistance Procedures Manual Exhibit 9-A
DBE Implementation Agreement for Local Agencies
IX. Federal Financial Assistance Agreement Assurance (49 CFR 26.13)
Each agreement SUB-RECIPIENT signs with Caltrans must include the following assurance:
The SUB-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 26. The SUB-RECIPIENT shall take all necessary and
reasonable steps under 49 CFR 26 to ensure nondiscrimination in the award and administration
of DOT-assisted contracts. The SUB-RECIPIENT’s DBE Program, as required by 49 CFR 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 SUB-RECIPIENT of its failure to carry out its approved
program, Caltrans may impose sanctions as provided for under 49 CFR 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.).
Each contract Sub-recipient signs with a contractor (and each subcontract the prime contractor
signs with a subcontractor) must include the following 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 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 the Sub-recipient deems appropriate.
X. DBE Financial Institutions (49 CFR 26.27)
SUB-RECIPIENT must 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 (49 CFR 26.31)
SUB-RECIPIENT will refer interested persons to the Unified Certification Program DBE directory
available from the Caltrans Disadvantaged Business Enterprise Program’s website.
XII. Required Contract Clauses (49 CFR 26.13 and 26.29)
For the purpose of this section, contractor also means consultant, and subcontractor also
includes subconsultant. For prompt payment, the following State regulations are referenced: the
California Business and Professions Code (CBPC), California Public Contract Code (CPCC)
and California Civil Code (CCC).
SUB-RECIPIENT ensures that the following clauses or equivalent will be included in each DOT-
assisted prime contract:
Page 4 of 8
September 2020
Local Assistance Procedures Manual Exhibit 9-A
DBE Implementation Agreement for Local Agencies
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 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 SUB-
RECIPIENT deems appropriate.
NOTE: This language is to be used verbatim, as is stated in Exhibit 12-G: Required Federal-
aid Contract Language. See also 49 CRF 26.13(b).
B. Prompt Payment
Prompt Progress Payment to Subcontractors
The Local Agency shall require contractors and subcontractors to pay their subcontractors
within seven (7) days for construction contracts, and within fifteen (15) days for consultant
contracts, after receiving each progress payment. Any delay or postponement of payment
may take place only for good cause and with the Local Agency’s prior written approval. Any
violation of these provisions shall subject the violating contractor or subcontractor to the
penalties, sanctions and remedies specified in Section 7108.5 of the CBPC and Section
10262 of the CPCC for construction contract, and Section 3321 of the CCC for consultant
contract. 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 seven (7) days for construction contracts, or within
fifteen (15) days for consultant contracts after the subcontractor’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 Local 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 for
good cause and with the Local Agency’s prior written approval. Any violation of these
provisions shall subject the violating contractor or subcontractor to the penalties,
sanctions, and other remedies specified in Section 7108.5 of the CBPC and Section
10262 of the CPCC for construction contracts, and Section 3321 of the CCC for
consultant contracts. 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.
Page 5 of 8
September 2020
Local Assistance Procedures Manual Exhibit 9-A
DBE Implementation Agreement for Local Agencies
2. No retainage will be held by the Local Agency from progress payments due to the prime
contractor. Any retainage kept by the prime contractor or by a subcontractor must be
paid in full to the earning subcontractor within seven (7) days for construction contracts,
or within fifteen (15) days for consultant contracts after the subcontractor’s work is
satisfactorily completed. Any delay or postponement of payment may take place only for
good cause and with the Local Agency’s prior written approval. Any violation of these
provisions shall subject the violating contractor or subcontractor to the penalties,
sanctions, and remedies specified in Section 7108.5 of the CBPC and Section 10262 of
the CPCC for construction contracts, and Section 3321 of the CCC for consultant
contracts. 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.
3. The Local Agency shall hold retainage from the prime contractor and shall make prompt
and regular incremental acceptances of portions, as determined by the Local 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 seven (7) days for construction contracts, or
within fifteen (15) days for consultant contracts after receiving payment for work
satisfactorily completed and accepted including incremental acceptances of portions of
the contract work by the Local Agency. Any delay or postponement of payment may take
place only for good cause and with the Local Agency’s prior written approval. Any
violation of these provisions shall subject the violating prime contractor to the penalties,
sanctions, and other remedies specified in Section 7108.5 of the CBPC and Section
10262 of the CPCC for construction contracts, and Section 3321 of the CCC for
consultant contracts. 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.
Any violation of these provisions shall subject the violating prime contractor or subcontractor
to the penalties, sanctions and other remedies specified therein. These requirements shall
not be construed to limit or impair any contractual, administrative, or judicial remedies
otherwise available to the prime contractor or subcontractor in the event of a dispute
involving late payment or nonpayment by the prime contractor, deficient subcontract
performance, or noncompliance by a subcontractor.
XIII. Local Assistance Procedures Manual (LAPM)
The SUB-RECIPIENT will advertise, award and administer Federal-aid contracts in accordance
with the current Local Assistance Procedures Manual (LAPM) including Forms and Exhibits.
Page 6 of 8
September 2020
Local Assistance Procedures Manual Exhibit 9-A
DBE Implementation Agreement for Local Agencies
XIV.Vehicle Manufacturers/Specialized Equipment (§26.49)
If Federal-aid contracts will include vehicle/specialized equipment procurements, SUB-
RECIPIENT will require each vendor, as a condition of being authorized to bid or propose on
vehicle/specialized equipment procurements, to certify that it has complied with the
requirements of 49 CFR 26.69.
XV.Reporting to the DLAE
SUB-RECIPIENT will promptly submit a copy of the Consultant Proposal DBE Commitment
(Exhibit 10-O1) at the time of award of the consultant contract.
SUB-RECIPIENT will promptly submit a copy of Consultant Contract DBE Information (Exhibit
10-O2) or the Local Agency Bidder DBE Commitment (Construction Contracts) (Exhibit 15-G) to
the DLAE within 30 days after execution of consultant or construction contract.
SUB-RECIPIENT will promptly submit a copy of the Final Report-Utilization of DBE, First-Tier
Subcontractors (Exhibit 17-F) of the LAPM, immediately upon completion of each consultant or
construction contract.
XVI.Certification (§26.83(a))
SUB-RECIPIENT ensures that only DBE firms currently certified by the California Unified
Certification Program (CUCP) will participate as DBEs on Federal-aid contracts.
XVII.Confidentiality
SUB-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.
XVIII.Prompt Payment from the Local Agency to the Contractors (California Public Contract
Code §20104.50)
The Local Agency shall make any progress payment within 30 days after receipt of an
undisputed and properly submitted payment request from a contractor on a construction
contract. If the Local Agency fails to pay promptly, the Local Agency shall pay interest to the
contractor, which accrues at the rate of 10 percent per annum on the principal amount of a
money judgment remaining unsatisfied. Upon receipt of a payment request, the Local Agency
shall act in accordance with both of the following:
(1)Each payment request shall be reviewed by the Local Agency as soon as practicable after
receipt for the purpose of determining that the payment request is a proper payment
request.
(2)Any payment request determined not to be a proper payment request suitable for payment
shall be returned to the contractor as soon as practicable, but not later than seven (7) days,
after receipt. A request returned pursuant to this paragraph shall be accompanied by a
document setting forth in writing the reasons why the payment request is not proper.
Page 7 of 8
September 2020
12/2/2020
Jim Perrault
COUNTY OF FRESNODEPARTMENT OF PUBLIC WORKS AND PLANNINGTotal PositionsAllocation = 452Director of Public Works and Planning (1)4510DesignDivision*Design Services & Specifications*Transportation Planning*Improvement Dist. Admin.Construction Division*Public project compliance & inspections*Materials Testing*SurveyingMaintenance & OperationsDivisionManager*Road maintenance*Traffic Operations*Traffic Invest.Financial & Administrative Services*Accounts Payable/Receivable*Payroll*Department HRResourcesDivisionManager9015*Special Dist. Admin.*Parks*Solid Waste Ops.ComputerDataSystems DivisionManager*Countywide GIS*Department Graphics*Department Permit TrackingCommunityDevelopmentDivisionManager*CDBG*HOME Program*Film Commission*TourismDevelopmentServices& Capital Projects Division Manager*Building Permits & Inspections*Land Use & Subdivision*County Capital Projects*Grading Ordinance Administration*Code EnforcementAssistant Director of Public Works and Planning (1)43600200Water & Natural Resources Division Manager*SGMA Administration*SMARA Administration*Williamson Act AdministrationAssistant Director of Public Works and Planning (1)4510Program Tech. (1)45104510 = 54360/0200 = 1Senior Planner (1) 45104510(1) Deputy Director - unusedDesign EngineerAttachment A