California State/DBE 09Exhibit 9-A Disadvantaged Business Enterprise Implementation Agreement for Local
Agencies
CALIFORNIA
DEPARTMENT OF TRANSPORTATION
DISADVANTAGED BUSINESS ENTERPRISE
PROGRAM
IMPLEMENTATION AGREEMENT
FOR
LOCAL AGENCIES
March 4, 2009
CALIFORNIA DEPARTMENT OF TRANSPORTATION DISADVANTAGED
BUSINESS ENTERPRISE IMPLEMENTATION AGREEMENT
For the City of La Quinta, hereinafter referred to as "RECIPIENT."
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
Disadvantaged Business Enterprise Program 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 DBE's 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 market place 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 objectives of the DBE Program Plan with respect to
individuals of a particular race, color, sex, or national origin.
March 4, 2009
IV Annual DBE Submittal Form (§26.21)
The RECIPIENT will provide to the Caltrans District Local Assistance Engineer (DLAE) a completed
Local Agency DBE Annual Submittal Form (Exhibit 9-13) by June I 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 Overall Statewide Annual DBE Goal (§26.51)
RECIPIENT must meet the maximum feasible portion of its AADPL by using race -neutral means of
facilitating DBE participation. Race -neutral DBE participation includes any time 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 DBE, and other small businesses, participation (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
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
9. Assisting DBEs, and other small businesses, to develop their capability to utilize emerging
technology and conduct business through electronic media.
March 4, 2009
VI Race Conscious Means of Meeting the Overall Statewide Annual DBE Goal
(§26.51(d))
RECIPIENT must establish contract goals for Underutilized Disadvantaged Business Enterprises
(UDBEs) to meet any portion of your AADPL you do not project being able to meet using race -neutral
means. UDBEs are limited to these certified DBEs that are owned and controlled by African Americans,
Native Americans, Women, and Asian Pacific Americans.
VII Quotas (§26.43)
RECIPIENT will not use quotas or set -asides in any way in the administration of the local agency
component of the DBE Program Plan.
VIII DBE Liaison Officer (DBELO) (§26.25)
RECIPIENT has designated a DBE Liaison Officer. The DBELO is responsible for implementing the
DBE Program Plan, as it pertains to the RECIPIENT, and ensures that the RECIPIENT is fully and
properly advised concerning DBE Program Plan matters. The Principal Engineer will serve as the
DBELO on behalf of the City of La Quinta. The Principal Engineer is supported by the
Professional and Support Staff within the Public Works Department. The name, address, telephone
number,_ electronic mail address, and an organization chart displaying the DBELO's position in the
organization are found in Attachment No. 1 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 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 CEO/governing body on DBE matters and DBE race -neutral issues.
S. 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.
March 4, 2009
IX 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).]
X 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.
XI 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.
XII 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). See Caltrans Sample Boiler Plate
Contract Documents on the Internet at www.dot.ca.gov/hg1Loca1Programs under "Publications. 'I
March 4, 2009
B. PROMPT PAYMENT
Prompt Progress Payment to Subcontractors
The local agency shall require contractors and subcontractors to be timely paid as set forth in
Section 7108.5 of the California Business and Professions Code concerning prompt payment to
subcontractors. The 10-days 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 local agency shall ensure prompt and full payment of retainage from the prime contractor to
the subcontractor within thirty (30) days 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 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, orjudicial 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.
2. 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 in 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.
March 4, 2009
3. 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.
XIII Local Assistance Procedures Manual
The RECIPIENT will advertise, award and administer DOT -assisted contracts in accordance with the
most current published Local Assistance Procedures Manual (LAPM).
XIV Transit Vehicle Manufacturers (§ 26.49)
If FTA-assisted contracts will include transit vehicle procurements, RECIPIENT 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.
XV Bidders List (§26.11(c))
The 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/nonDBE status, age, and annual gross receipts of the firm.
XVI Reporting to the DLAE
RECIPIENT will promptly submit a copy of the Local Agency Bidder/Proposer-UDBE Commitment
(Consultant Contract), (Exhibit 10-0(1) "Local Agency Bidder/Proposer-DBE Commitment (Consultant
Contract)") or Exhibit 15-G(1) "Local Agency Bidder-UDBE Commitment (Construction Contract) to the
DLAE at the time of award of the consultant or construction contracts.
RECIPIENT will promptly submit a copy of the Local Agency Bidder -DBE Information (Exhibit 15-G(2)
"Local Agency Bidder -DBE (Construction Contracts) — Information" or Exhibit 10-0(2) "Local Agency
Proposer/Bidder-DBE (Consultant Contracts) -Information" of the LAPM) to the DLAE at the time of
execution of consultant or construction contract.
RECIPIENT will promptly submit a copy of the Final Utilization of DBE .participation to the DLAE
using Exhibit 17-F "Final Report — Utilization of Disadvantaged Business Enterprises (DBE), First -Tier
March 4, 2009
Subcontractors" of the LAPM immediately upon completion of the contract for each consultant or
construction contract.
XVII Certification (§26.83(a))
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 co sistent with federal, state, and local laws.
By
(Signature )
Thomas P. Genovese, City Manager Phone Number: (760 77� 7-7100_
(Print Name and Title) ADMINISTERING AGENCY
(Authorized Governing Body Representative)
This California Department of Transportation's Disadvantaged Business Enterprise Program
Implementation Agreement is accepted by:
qDate: Q
[Signature of DL E]
_Pa+iyCr_A_ T.
[Print Name of DLAE]
Distribution: (1)Original—DLAE
(2) Signed copy by the DLAE — Local Agency
(Updated: March 4, 2009)
March 4, 2009