CITY COUNCIL AGENDA ITEM
Meeting Date: January 9, 2007
Subject/Title: Adopt a Resolution approving and authorizing the City Manager
to execute Amendment No. 1 to the City of Brentwood Disadvantaged Business
Enterprise Race-Neutral Implementation Agreement.
Prepared by: Karen Wahl, Grant Program Manager
Submitted by: Bailey Grewal, Director of Public Works/City Engineer
Adopt a Resolution approving and authorizing the City Manager to execute
Amendment No. 1 to the City of Brentwood Disadvantaged Business Enterprise
Race Neutral Implementation Agreement.
On November 27, 2001 Council adopted Resolution 2414 approving the first
City of Brentwood 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
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.
On May 23, 2006 Council adopted Resolution 2006-118 approving the amended
California Department of Transportation DBE Program Race-Neutral
Implementation Agreement as it related to the Walnut Boulevard Widening
Project, CIP 336-3056 in FY 05-06.
On September 12, 2006 Council adopted Resolution 2006-214 approving and
authorizing the City Manager’s signature on the FY 2006/2007 California
Department of Transportation Disadvantaged Business Enterprise Race- Neutral
Implementation Agreement and Exhibit 9-B, Local Agency DBE Annual Submittal
Form, establishing the Annual Anticipated DBE Participation Level (AADPL) at
On May 1, 2006 Caltrans began implementing a race-neutral DBE Program due to
a federal court decision. Under a race-neutral DBE Program, Caltrans is
still required by law to attain the overall DBE Program goal but must rely
on the voluntary efforts of contractors to utilize DBEs on contracts. As a
guide to contractor regarding the relative availability of DBEs, DBE
Availability Advisory Percentages (AAP) were included in contracts. The AAP
was merely advisory and not an enforceable goal. The previous procedure
required the local agency to analyze their market areas and develop a DBE
Availability Advisory for individual contracts to assist the bidders in
ascertaining a reasonable level of DBE participation for a given contract.
Agencies were required to include a DBE Availability Advisory in each
contract whenever the opportunity arose, regardless of whether the agency
had achieved its Annual Anticipated DBE Participation Level (AADPL).
Given the limited utility of the AAP, Caltrans has decided that resources
could be better spent focusing efforts on measures that facilitate the
participation of all small businesses and enhancing Caltrans’ overall
race-neutral program. The AAP may also have had the unintended effect of
placing a “ceiling” on potential DBE participation because bidders may
believe the AAP represents the outer limits of DBE participation. To that
end, the AAP will be removed from the contract specifications.
Caltrans Civil Rights Program is editing the race-neutral measures listed in
the Caltrans DBE Program Plan to read identically to the race-neutral
measures listed in 49 CFR Part 26.51. For the purpose of maintaining
consistency with the Caltrans DBE Program Plan, these changes will be
incorporated in Chapter 9 and Exhibit 9-A “Disadvantaged Business Enterprise
Race-Neutral Implementation Agreement for Local Agencies” of the Local
Assistance Procedures Manual.
Changes to the Local Assistance Procedures Manual. (LAPM) and Exhibit 9-A
require that all local agencies either execute an amendment to their
existing Exhibit 9-A or execute an updated Exhibit 9-A. A copy of the
amendment to be executed is attached. The deadline for execution of the new
amendment is February 1, 2007.
All other provisions of the Agreement will remain in full force and effect.
In addition to the amendment, Caltrans has reinstated the “Bidder’s List of
Subcontractors” form and modified the same to require the local agency,
rather than the bidder, to determine whether or not a subcontractor is a DBE
after the award of the contract. The purpose of modifying the form is to
ensure that DBE participation is not considered during the bidding process
per the requirements of a Race-Neutral DBE Program.
There is no fiscal impact as a result of this action. The City must comply
with the federal regulations for funding in order to remain eligible for any
federal transportation funding.
Amendment No. 1 to the City of Brentwood DBE Race-Neutral Implementation
Exhibit 9-B, Local Agency DBE Annual Submittal Form
City of Brentwood Disadvantaged Business Enterprise Race-Neutral
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING AND
AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 1 TO THE CITY OF
BRENTWOOD DISADVANTAGED BUSINESS ENTERPRISE RACE-NEUTRAL IMPLEMENTATION
WHEREAS, 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 which standards
superceded the DBE requirements of 1999; and
WHEREAS, local agencies no longer have their own DBE Program but are
included in and mandated to follow the Caltrans annual overall statewide DBE
goal and program established at 10.5%; and
WHEREAS, federal regulations 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) in advance of the Federal Fiscal Year
beginning in October 1 for federal-aid contracts and to include the AADPL in
each federally funded project contract; and
WHEREAS, new procedures effective November 14, 2006 require the removal of
the DBE Availability Advisory Percentages (AAP) from the contract
specifications and revisions to the Local Assistance Procedures Manual
(LAPM), Chapter 9 and Exhibit 9-A, “Disadvantaged Business Enterprise
Race-Neutral Implementation Agreement for Local Agencies; and
WHEREAS, all other provisions of the Agreement will remain in full force and
WHEREAS, changes to the Local Assistance Procedures Manual and Exhibit 9-A
require an amendment to agency Disadvantaged Business Enterprise
Race-Neutral Implementation Agreement.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood
hereby approves and authorizes the City Manager or her designee to execute
Amendment No. 1 to the City of Brentwood Disadvantaged Business Enterprise
Race-Neutral Implementation Agreement, amending Section V. Race-Neutral
Means of Meeting the Annual DBE Goal (§26.51) to read identically to the
Federal Code of Regulations, 49 CFR, Part 26.51.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at
a regular meeting held on the 9th day of January 2007 by the following vote:
AMENDMENT TO THE CITY OF BRENTWOOD DISADVANTAGED BUSINESS ENTERPRISE
For the City of Brentwood, hereinafter referred to as “RECIPIENT.”
A. RECIPIENT EXECUTED THE California Department of Transportation’s
Disadvantaged Business Enterprise Implementation Agreement (hereinafter
referred to as Agreement) on September 12, 2006 as a condition of receiving
B. Due to the modification of the California Disadvantaged Business
Enterprise Program Plan, the Agreement requires amending.
C. This Amendment is the first amendment to the Agreement.
The RECIPIENT agrees to amend their obligations in the existing Agreement
and RECIPIENT agrees to keep, perform, and fulfill the promises, conditions
and agreements below:
1. The Agreement is amended as follows:
Section V. Race-Neutral Means of Meeting the Annual DBE Goal (§26.51) of the
Agreement is hereby amended to read identicaly to the Federal Code of
Regulations, 49 CFR, Part 26.51.
No Other Change
2. Except as otherwise expressly provided in this Amendment, all of the
terms and conditions of the Agreement remain unchanged and in full force and
By: __________________________________ Phone Number: (925) 516-5440
Donna Landeros, City Manager
CITY OF BRENTWOOD
This Amendment to the California Department of Transportation’s
Disadvantaged Business Enterprise Program Plan Implementation Agreement is
_____________________________________ Date: ____________
Signature of DLAE
Arthur P. Duffy, PE DBE Coordinator, District 4