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CITY COUNCIL AGENDA ITEM NO. 17

Meeting Date: May 23, 2006

Subject/Title: Adopt a Resolution approving and ratifying the City Manager’s signature on the amended California Department of Transportation Disadvantaged Business Enterprise Race-Neutral Implementation Agreement (Agreement) as it relates to the Walnut Boulevard Widening Project, CIP 336-3056; authorizing her signature on the Agreement for future projects, and authorizing her to execute and submit all documents which may be necessary for the Disadvantaged Business Enterprise Program.

Prepared by: Karen Wahl, Grant Program Manager

Submitted by: Bailey Grewal, Director of Public Works/City Engineer

RECOMMENDATION
Adopt a Resolution approving and ratifying the City Manager’s signature on the amended California Department of Transportation Disadvantaged Business Enterprise Race-Neutral Implementation Agreement (Agreement) as it relates to the Walnut Boulevard Widening Project, CIP 336-3056; authorizing her signature on the Agreement for future projects, and authorizing her to execute and submit all documents which may be necessary for the Disadvantaged Business Enterprise Program.

PREVIOUS ACTION
On November 27, 2001 Council adopted Resolution 2414 approving the first City of Brentwood Disadvantaged Business Enterprise (DBE) Program goal of 3.96% for U.S. Department of Transportation (U. S. DOT) contracting opportunities in FY 01-02.

On November 12, 2002 Council adopted Resolution 2737 approving the City of Brentwood DBE Program goal of 3% for U. S. DOT contracting opportunities in FY 02-03.

On February 24, 2004 Council adopted Resolution 2004-34 approving the City of Brentwood DBE Program goal of 4.9% for U. S. DOT contracting opportunities in FY 03-04.

BACKGROUND
A Disadvantaged Business Enterprise (DBE) is a for-profit “small business concern” that is at least 51% owned and controlled by one or more socially and economically disadvantaged individuals. The DBE designation includes the Minority Business Enterprise (MBE) and the Women-Owned Business Enterprise (WBE) programs.

In 1983, Congress enacted the first DBE statutory provision. This provision required US DOT to ensure that at least 10% of the funds authorized for the highway and transit financial assistance programs be expended with DBEs. In 1987, Congress re-authorized and amended the statutory DBE program. In the transportation legislation of that year, Congress, among other changes, added women to the groups presumed to be disadvantaged and established a single DBE goal of 10% encompassing both firms owned by women and minority group members.

In 1995 the U.S. Supreme Court in Adarand Constructors, Inc. V. Pena, 115 S.Ct. 2097 held that federal affirmative action programs which use racial and ethnic criteria as bases for decision making were subject to strict judicial scrutiny. This standard required that an Affirmative Action Program be "narrowly tailored" to serve a "compelling government interest." Responding largely to the Supreme Court’s 1995 decision and congressional debate over the DBE program, USDOT issued regulations in 1999 to ensure that the DBE program was narrowly tailored. In September 2000, the Tenth Circuit Court of Appeals upheld the constitutionality of the DBE program and as a result of this decision US DOT mandated in the Disadvantaged Business Enterprise Program 49 Code of Federal Regulations (CFR) Part 26 that all recipients of federal financial assistance were required to participate in a statewide Unified Certification Program by March 2002.

Under the Supreme Court’s Adarand decision, the DOT DBE program further required recipients of federal funding (state and local agencies) to establish narrowly-tailored goals for the participation of disadvantaged entrepreneurs, to evaluate their DOT-assisted contracts throughout the year and establish contract specific DBE subcontracting goals where these goals were warranted.

In May 2005, a panel of judges for the Ninth Circuit Court of Appeals ruled in a decision, Western States Paving Co. Inc v. Washington Department of Transportation et al., that the Washington State DOT’s practice of using race-conscious goals as a condition of highway contract awards was unlawful in the absence of specific evidence of prior discrimination. The decision is binding on the states within the 9th Circuit, including California.

There is no grace period in which to implement a “race-neutral” DBE Program. When awarding federal-aid contracts, local agencies must conform to federal requirements. Caltrans, the state’s primary recipient of federal-aid transportation funding, has determined that at this time there is insufficient evidence to permit the continued use of race-conscious measures (i.e., DBE contract participation goals) and has suspended use of such measures. Local agencies are bound by that determination.

Local agencies will no longer have their own DBE Program but are included in and mandated to follow Caltrans’ DBE Program. Caltrans has submitted an annual overall statewide DBE goal and program of 10.5% for the State of California to US DOT for approval. The new regulations also require each local agency to calculate the level of DBE participation and utilization that the agency expects could be achieved on contracts to be awarded in their jurisdiction in the following fiscal year and submit it to Caltrans in the form of the Annual Anticipated DBE Participation Level (AADPL) annually by June 1 in advance of the FFY beginning October 1 for federal-aid contracts. The AADPL is not a goal that needs to be achieved but will be used by Caltrans to establish a statewide DBE participation goal as required by Title 49 CFR Part 26, Section 26.45.

The direction to immediately implement a 100% race-neutral DBE Program was received from Caltrans on May 1, 2006. In compliance with federal regulations and in order to insure the City of Brentwood receives federal funding for the Walnut Boulevard Widening Project, CIP 336-3056, the Disadvantaged Business Enterprise Race–Neutral Implementation Agreement for Local Agencies (the “Agreement”) was signed by the City Manager during the week of May 15, 2006. The City Manager signed the document based on authority cited in the Brentwood Municipal Code Title 2 Chapter 2.36, Section 2.36.080, Powers and Duties as follows:

“The City Manager shall be the administrative head of the city government under the direction and control of the City Council, except as otherwise provided in this chapter. He/she shall be responsible for the efficient administration of all the affairs of the city which are under his/her control. In addition to his/her general powers as administrative head, and not as a limitation thereon, it shall be his/her duty and have the power:

A. To enforce all laws and ordinances of the city and to insure that all franchises, contracts, permits and privileges granted by the city council are faithfully performed and observed;”

So that the Walnut Boulevard Widening Project continued to receive federal funding, the City Manager, in consultation with the City Attorney, signed the Agreement to insure that the Walnut Boulevard contract was faithfully performed. By approving the attached Resolution, the Council will be ratifying the City Manager’s signature of the Agreement as it relates to the Walnut Boulevard contract and authorizing her signature on the Agreement for future projects. The Resolution also authorizes the City Manager to execute and submit all related documents which may be necessary for the DBE Program.

FISCAL IMPACT
If the newly mandated Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies had not been signed and submitted to Caltrans according to the timeline for construction of Walnut Boulevard Widening, CIP 336-3056, the City would not be in compliance with federal regulations for funding and would no longer have been eligible for the $600,000 Surface Transportation Grant awarded in 2005 nor any other federal funding for the next Federal Fiscal Year.

Attachments:
Resolution
Disadvantaged Business Enterprise Race-Neutral Implementation Agreement for Local Agencies
LAPM Exhibit 9-B – DBE Annual Submittal Form
Appendix C to Exhibit 9-B

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING AND RATIFYING THE CITY MANAGER’S SIGNATURE ON THE AMENDED CALIFORNIA DEPARTMENT OF TRANSPORTATION DISADVANTAGED BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENTATION AGREEMENT (“AGREEMENT”) AS IT RELATES TO THE WALNUT BOULEVARD WIDENING PROJECT, CIP 336-3056; AUTHORIZING HER SIGNATURE ON THE AGREEMENT FOR FUTURE PROJECTS AND AUTHORIZING HER TO EXECUTE AND SUBMIT ALL DOCUMENTS WHICH MAY BE NECESSARY FOR THE DISADVANTAGED BUSINESS ENTERPRISE PROGRAM.

WHEREAS, new federal regulations have been issued regarding Disadvantaged Business Enterprises (DBEs); and

WHEREAS, previous DBE requirements of Title 49 Code of Federal Regulations (CFR) Part 23 were superceded in 1999 by new regulations of Title 49 CFR Part 26, titled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs” as the final rule binding on all recipients requiring establishment of agency-specific DBE goals utilizing both race-conscious and race-neutral means; and

WHEREAS, all recipients of federal financial assistance were required to participate in a statewide Unified Certification Program implementing the Disadvantaged Business Enterprise Program by March 2002; and

WHEREAS, in May 2005 the Ninth Circuit Court of Appeals in the State of Washington established new evidentiary standards necessary to constitutionally support the use of race-conscious goals; and

WHEREAS, California is also under the Ninth Circuit Court of Appeal’s jurisdiction and Caltrans had used race-conscious DBE goals; and

WHEREAS, Caltrans, the state’s primary recipient of federal-aid transportation funding, has determined that at this time there is insufficient evidence to permit the continued use of race-conscious measures (i.e., DBE contract participation goals) and has suspended use of such measures; and

WHEREAS, local agencies will no longer have their own DBE Program but are included in and mandated to follow Caltrans’ DBE Program; and

WHEREAS, Caltrans has submitted an annual overall statewide DBE goal and program of 10.5% for the State of California to US DOT for approval; and

WHEREAS, the new regulations also require each local agency to calculate the level of DBE participation and utilization that the agency expects could be achieved on contracts to be awarded in their jurisdiction in the following fiscal year and submit it to Caltrans in the form of the Annual Anticipated DBE Participation Level (AADPL) annually by June 1 in advance of the Federal Fiscal Year beginning October 1 for federal-aid contracts; and

WHEREAS, calculation of the Annual Anticipated DBE Participation Level for the City of Brentwood for FY 2006 has resulted in 8%; and

WHEREAS, the direction to immediately implement a 100% race-neutral DBE Program was received from Caltrans the week of May 1, 2006; and

WHEREAS, in order to retain eligibility for federal funding for the Walnut Boulevard Widening Project, CIP 336-3056, the City Manager, in consultation with the City Attorney, signed the Agreement to insure that the Walnut Boulevard contract was faithfully performed.

NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Brentwood that

1. The City Manager’s signature of the Agreement as it relates to the Walnut Boulevard contract is hereby ratified.

2. The City Manager’s signature is authorized on the Agreement for future projects.

3. The City Manager is authorized to execute and submit all related documents which may be necessary for the DBE Program.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 23rd day of May 2006 by the following vote:

CITY OF BRENTWOOD

DISADVANTAGED BUSINESS ENTERPRISE
RACE-NEUTRAL
IMPLEMENTATION AGREEMENT

DISADVANTAGED BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENTATION AGREEMENT

For the City of Brentwood, hereinafter referred to as “RECIPIENT.”

I. 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 Department of Transportation (Caltrans), and as a condition of receiving this assistance, the RECIPIENT will sign the California Department of Transportation’s Disadvantaged Business Enterprise Implementation Agreement (hereinafter referred to as Agreement). The 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, Part 26 requirements.

It is the policy of the RECIPIENT to ensure that DBEs, as defined in Part 26, have an equal opportunity to receive and participate in DOT-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 DBEs 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 marketplace outside the DBE Program.

III. Nondiscrimination (§26.7)

RECIPIENT will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR, Part 26 on the basis of race, color, sex or national origin. In administering the local agency components of the DBE Program Plan, the RECIPIENT will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objects 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 (DLAE) a completed DBE Annual Submittal Form 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 Annual DBE Goal (§26.51)

RECIPIENT will assist Caltrans to achieve its Overall Statewide DBE Goal by race neutral means that may include, but are not limited to the following:

1. Advertising solicitations, scheduling bidding periods and opening times, and packaging quantities, specifications, and delivery schedules in ways that facilitate DBE and other small business participation.

2. Providing assistance to DBE and small business in overcoming limitations such as inability to obtain bonding or financing (e.g., by such means as simplifying the bonding process, reducing bonding requirements, and providing services to help DBEs and other small businesses obtain bonding and financing).

3. Providing technical assistance and other services to DBE and small businesses.

4. Providing 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 including DBEs and small businesses; providing the 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 kinds 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 been historically low.

8. Assisting DBEs and other small businesses to develop their capability to utilize emerging technology and conduct business through electronic media.

9. Implementing or developing a mentor-protégé program.

VI. Quotas (§26.25)

RRECIPIENT will not use quotas or set-asides in any way in the administration of the local agency component of the DBE Program Plan.

VII. DBE Liaison Officer (DBELO) (§26.25)

RECIPIENT has designated two DBE Liaison Officers. The DBELOs are responsible for implementing the DBE Program Plan, as it pertains to the RECIPIENT, and ensure that the RECIPIENT is fully and properly advised concerning DBE Program Plan matters. The DBELOs have direct, independent access to the City Manager of the City of Brentwood concerning DBE program matters and may be assisted by other City staff and by outside consulting firms in acting as the DBELOs. The names, addresses, telephone numbers, electronic mail address, and an organization chart displaying the DBELOs’ position in the City of Brentwood are found in Attachment A to this Agreement. This information will be updated annually and included on the DBE Annual Submittal Form.

The DBELOs are responsible for developing, implementing, and monitoring the RECIPIENT’s requirements of the DBE Program Plan in coordination with other appropriate officials. Duties and responsibilities include the following:

1. Gathers and reports statistical data and other information as required.

2. Reviews third party contracts and purchase requisitions for compliance with this program.

3. Works with all departments to determine projected Annual Anticipated DBE Participation Level.

4. Ensures that bid notices and requests for proposals are made available to DBEs in a timely manner.

5. Analyzes DBE participation and identifies ways to encourage participation through race-neutral means.

6. Participates in pre-bid meetings.

7. Advises the 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.

VIII. 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).]

IX. 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.

X. 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.


XI. 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).]

B. PROMPT PAYMENT
Prompt Progress Payment to Subcontractors

A prime contractor or subcontractor shall pay to any subcontractor not later than 10-days’ receipt of each progress payment, in accordance with the provision in Section 7108.5 of the California Business and Professions Code concerning prompt payment to subcontractors. The 10-day period 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 City of Brentwood will include the following provision in its federal-aid contracts to ensure prompt and full payment of retainage to subcontractors in compliance with 49 CFR 26.29:

The City of Brentwood shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the City of Brentwood of the contract work and pay retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from all subcontractors within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Any delay or postponement of payment may take place only for good cause and with the agency’s prior written approval. Any delay or postponement of payment may take place only for good cause and with the 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 California Business Professions Code. 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.

XIV. Local Assistance Procedures Manual

RECIPIENT will advertise, award and administer DOT-assisted contracts in accordance with the most current published Local Assistance Procedures Manual (LAPM).

XV. Bidders List (§26.11)

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/non-DBE status, age and annual gross receipts of the firms.

XVI. Reporting to the DLAE

RECIPIENT will promptly submit a copy of the Local Agency Bidder-DBE Information (either Exhibit 15-G, Local Agency Bidder DBE Construction Contract Information or Exhibit 10-O, Local Agency Proposer/Bidder DBE Consultant Contract Information) of the LAPM to the DLAE at the time of execution of consultant or construction contract award.

RECIPIENT will promptly submit a copy of the Final Utilization of DBE participation to the DLAE using Exhibit 17-F of the LAPM immediately upon completion of the contract for each consultant or construction contract.

XVII. Certification (§26.83(s))

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.

Signature Date

Donna Landeros, City Manager
(925) 516-5440
Phone

This California Department of Transportation’s Disadvantaged Business Enterprise Program Plan Implementation Agreement is accepted by:

DLAE Signature Date

Arthur P. Duffy, P.E.

Prompt Payment of Withheld Funds to Subcontractors

Federal regulation (49 CFR 26.29) requires one of the following three methods be used in federal-aid contracts to ensure prompt and full payment of any retainage kept by the prime contractor or subcontractor to a subcontractor.

Please check the box of the method chosen by the local agency to ensure prompt and full payment of any retainage.

0 No retainage will be held by the agency from progress payments due to the prime contractor. Prime contractors and subcontractors are prohibited from holding retainage from subcontractors. Any delay or postponement of payment may take place only for good cause and with the agency’s prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to the 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.

0 No retainage will be held by the agency from progress payments due the prime contractor. Any retainage kept by the prime contractor or by a subcontractor must be paid in full to the earning subcontractor within 30 days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment may take place only for good cause and with the agency’s prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to the 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.

1 The agency shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the agency of the contract work and pay retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from all subcontractors within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Any delay or postponement of payment may take place only for good cause and with the agency’s prior written approval. 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 California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to the 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.

Local Agency DBE Annual Submittal Form

To: Caltrans District 4
Arthur P. Duffy, P.E., DLAE


The amount of the Annual Anticipated DBE Participation Level (AADPL) and methodology are presented herein, accordance with Title 49 of the Code of Federal Regulation, Part 26, and the State of California, Department of Transportation Disadvantaged Business Enterprise (DBE) Program Plan.

The City of Brentwood submits our AADPL information. We have established an AADPL of 8% for the Federal Fiscal Year 2004/2005, beginning on October 1, 2004 and ending on September 30, 2005.

Methodology
The overall goal for the City of Brentwood for the federal fiscal year 2005/2006 is the following: 8.0% of the federal financial assistance in DOT-assisted contracts. This overall goal is broken down into 4.0% race-conscious and 4.0% race-neutral components.

To establish the Base Figure for the City of Brentwood of the relative availability of DBE firms in relation to all comparable firms available for the City’s FY 2005/2006 DOT-aid program, the City elected to use the Caltrans DBE Database Directory of certified firms (filtered to represent only DBE firms within the Counties of Alameda, Contra Costa, Placer, Sacramento, San Joaquin, Santa Clara, Santa Cruz, Solano, Sonoma and Yolo) for calculating the numerator and the Census Bureau’s Business Pattern Database (most recent edition based on NAICS codes) within the same geographical market area to calculate the denominator. The resulting figure was multiplied by its corresponding percent of the anticipated work share of the overall annual program. This calculation produced a Base Figure of 8.02%. The Base Figure was analyzed to narrowly tailor it to the specifics of the project involved and our past experiences and thus generated an annual DBE goal of 8.0%.

In addition, the City of Brentwood surveyed other local agencies in our geographic service area. This sampling resulted in the following: City of Oakley – 7%, City of Pittsburg – 9.1%, and Contra Costa County – 9.6%. These cities and the county service areas are similar to ours and provide a good range of comparable possibilities. Also taken into consideration was the DBE attainment on the City’s last federally-funded transportation project, Lone Tree Way Overlay. The project DBE goal was 3.6% and the attainment was 9%.

The impact of these factors results in a Base Figure of from 7% to 9.6% for DBE participation in FHWA assisted contracts. Based on this range, the City of Brentwood will establish a goal of 8% in FFY 2005/2006.

The data, tables and methodology used to set these goals is attached as Appendix C, Sections A - D.

Disadvantaged Business Enterprise Liaison Officers (DBELOs)

Karen Wahl, Grant Program Manager Marna Huber, Project Services Manager
City of Brentwood City of Brentwood
150 City Park Way 150 City Park Way
Brentwood, CA 94513 Brentwood, CA 94513

 (925) 516-5159  (925) 516-5420
 (925) 516-5401  (925) 516-5437
 kwahl@ci.brentwood.ca.us  mhuber@ci.brentwood.ca.us

Prompt Pay
Federal regulation 49 CFR 26.29 requires one of three methods be used in federal-aid contracts to ensure prompt and full payment of any retainage, kept by the prime contractor or subcontractor, to a subcontractor. Attachment B, Prompt Payment of Withheld Funds to Subcontractors, is attached and indicates the method chosen by the City of Brentwood.

Submitted by:

Signature

Donna Landeros. City Manager Date

(925) 516-5440
Name and Title

Reviewed by Caltrans:

Phone Number
Caltrans District Local Assistance Engineer Date

Distribution: (1) Original – DLAE DBE Annual Submittal Form (05/01/06)
(2) Copy – Local Agency after signature of DLAE
 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov