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CITY COUNCIL AGENDA ITEM NO. 11

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

RECOMMENDATION
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.

PREVIOUS ACTION
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 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.

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 8%.

BACKGROUND
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.

FISCAL IMPACT
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.

Attachments:
Resolution
Amendment No. 1 to the City of Brentwood DBE Race-Neutral Implementation Agreement
Exhibit 9-B, Local Agency DBE Annual Submittal Form
City of Brentwood Disadvantaged Business Enterprise Race-Neutral Implementation Agreement
Resolution 2006-214

RESOLUTION NO.

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 AGREEMENT

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 effect; 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 RACE-NEUTRAL IMPLEMENTATION
AGREEMENT


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

Background

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 federal-financial assistance.

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:

Amendment

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 effect.




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 accepted by:



_____________________________________ Date: ____________
Signature of DLAE


Arthur P. Duffy, PE DBE Coordinator, District 4

 

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