Resolution 2000-82
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RESOLUTION NO. 2000-82
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF GILROY ADOPTING THE CAL TRANS OFFICE OF
LOCAL PROGRAMS MODEL DBE PROGRAM
WHEREAS, the City ofGi1roy has received approval for Federal funding from the U.S.
Department of Transportation (DOT); and
WHEREAS, the DOT program is administered by the California Department of
Transportation (Caltrans); and
WHEREAS, Caltrans rules requires local agencies to adopt a Disadvantaged Business
Enterprises (DBE) Program.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Gilroy
hereby adopts the attached Caltrans Model DBE Program for the City of Gilroy.
PASSED AND ADOPTED this 18th day of December, 2000 by the following vote:
AYES
COUNCILMEMBERS G. ARELLANO, P ARELLANO, MORALES,
PINHEIRO, SUDOL, VELASCO, SPRINGER
NOES:
COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
APPROVED:
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Rhonda Pellin, City Clerk
Thomas W, Springer, Mayor
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RESOLUTION NO. 2000-82
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MODEL DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROJECT
City of Gilroy
I Definitions of Terms
The terms used in this program have the meanings defined in Title 49 ofthe Code of
Federal Regulations (CFR) Part 26.5,
II Objectives/Policy Statement (~~26.l, 26.23)
The City of Gilroy has established a Disadvantaged Business Enterprise (DBE) program
in accordance with regulations ofthe U.S, Department of Transportation (DOT), 49 CFR
Part 26, The City of Gilroy has received Federal financial assistance from the DOT, and
as a condition of receiving this assistance, the City of Gilroy will sign an assurance that it
will comply with 49 CFR Part 26,
It is the policy of the City of Gilroy to ensure that DBEs, as defined in Part 26, have an
equal opportunity to receive and participate in DOT -assisted contract. It is also our
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 the DBE Program 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 ofDBEs in DOT-assisted contracts; and
To assist the development of firms that can compete successfully in the market place
outside the DBE Program,
The Finance Director has been delegated as the DBE Liaison Officer. In that capacity,
the Finance Director is responsible for implementing all aspects of the DBE program,
Implementation of the DBE program is accorded the same priority as compliance with all
other legal obligations incurred by the City of Gilroy in its financial assistance
agreements with the California Department of Transportation (Caltrans),
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The City of Gilroy has disseminated this policy statement to the City Council of the City
of Gilroy and all the components of our organization, We have distributed this statement
to DBE and non-DBE business communities that perform work for us on DOT -assisted
contracts by publishing this statement in general circulation, minority-focused, and trade
association publications,
III Nondiscrimination (~26,7)
The City of Gilroy 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 its DBE program, the City of Gilroy 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 with respect to individuals of a particular race, color, sex, or national
origin,
IV DBE Program Updates (~26,21)
The City of Gilroy will continue to carry out this program until the City of Gilroy has
established a new goal setting methodology or until significant changes to this DBE
Program are adopted, The City of Gilroy will provide to Caltrans a proposed new goal
setting methodology and other program updates by June I of every year.
V Quotas (~26.43)
The City of Gilroy will not use quotas or set-asides in any way in the administration of
this DBE program,
VI DBE Liaison Officer (DBELO) (~26.45)
The City of Gilroy has designated the following individual as our DBE Liaison Officer:
Cindy Murphy, Finance Director, 7351 Rosanna Street, Gilroy, CA 95020, telephone
number (408) 846-0420, email cmurphy@ci.giIroy.ca.us. The Finance Director is
responsible for implementing all aspects of the DBE program and ensuring that the City
of Gilroy complies with all provisions of 49 CFR Part 26, This is available on the
Internet at osdbuweb,dot.gov/main,cfm, The Finance Director has direct, independent
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access to the City Administrator concerning DBE program matters. The DBELO's staff
consists of a project manager and clerical support staff, An organization chart displaying
the DBELO's position in the organization is found in Attachment A to this program,
The DBELO is responsible for developing, implementing and monitoring the DBE
program, 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 set overall annual goals,
4, Ensures that bid notices and requests for proposals are available to DBEs in a
timely manner.
5, Identifies contracts and procurements so that DBE goals are included in
solicitations (both race-neutral methods and contract specific goals) and
monitors results,
6, Analyzes the City of Gilroy's progress toward goal attainment and identifies
ways to improve progress,
7. Participates in pre-bid meetings,
8, Advises the CEO/governing body on DBE matters and achievement.
9, Chairs the DBE Advisory Committee
lO, Participates with the legal counsel and project director to determine contractor
compliance with good faith efforts,
II, Provides DBEs with information and assistance in preparing bids, obtaining
bonding and insurance,
12, Plans and participates in DBE training seminars,
13, Provides outreach to DBEs and community organizations to advise them of
opportunities,
VII Federal Financial Assistance Agreement Assurance (926.13)
The City of Gilroy will sign the following assurance, applicable to all Federal Highway
Administration (FHW A)-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
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its terms shall be treated as a violation ofthis 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. IDOl and/or the Program Fraud Civil Remedies Act of 1986
(31 U,S,C, 3801 et seq,),
VIII DBE Financial Institutions
It is the policy of the City of Gilroy 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 DBE Liaison
Officer. The Caltrans Business Enterprise Program may offer assistance to the DBE
Liaison Officer.
IX Directory (926,31)
The City of Gilroy will refer interested persons to the DBE directory available from
Caltrans Disadvantaged Business Enterprise Program website at www.dot.ca.gov/hqlbep.
X Overconcentration (926.33)
The City of Gilroy has not identified any types of work in DOT -assisted contracts that
have a overconcentration ofDBE participation. If in the future the City of Gilroy
identifies the needs to address overconcentration, measures for addressing
overconcentration will be submitted to the DLAE for approval.
XI Business Development Programs (926,35)
The City of Gilroy does not have a business development or mentor-protege program, If
the City of Gilroy identifies the need for such a program in the future, the rationale for
adopting such a program and a comprehensive description of it will be submitted to the
DLAE for their approval.
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XII Required Contract Clauses (SS26.13, 26,29)
Contract Assurance
The City of Gilroy ensures that the following clause is placed in every DOT-assisted
contract and subcontract:
The contractor or subcontractor shall not discriminate on the basis of race, color, national
origin, or sex in the performance ofthis 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 cany 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,
Promot Pavrnent
The City of Gilroy will ensure that the following clauses or equivalent will be included in
each DOT-assisted prime contract:
Satisfactorv Performance
The prime contractor agrees to pay each subcontractor under this prime contract for
satisfactory performance of its contract no later than 10 days from the receipt of each
payment the prime contractor receives from the City of Gilroy, Any delay or
postponement of payment from the above referenced time frame may occur only for good
cause following written approval ofthe City of Gilroy, This clause applies to both DBE
and non-DBE subcontractors,
Release of Retain age
The prime contractor agrees further to release retainage payments to each subcontractor
within 30 days after the subcontractor's work is satisfactorily completed, Any delay or
postponement of payment from the above referenced time frame may occur only for good
cause following written approval of the City of Gilroy, This clause applies to both DBE
and non-DBE subcontractors,
XIII Monitoring and Enforcement Mechanisms (S26.37)
The City of Gilroy will assign a Resident Engineer (RE) or Contract Manager to monitor
and track actual DBE participation through contractor and subcontractor reports of
payments in accordance with the following:
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After Contract Award
After the contract award, the City of Gilroy will review the award documents for the
portion of items each DBE and first tier subcontractors will be performing and the dollar
value of that work. With these documents, the RE/Contract Manager will be able to
determine the work to be performed by the DBEs or subcontractors listed,
Preconstruction Conference
A preconstruction conference will be scheduled between the RE and the contractor or
their representative to discuss the work each DBE subcontractor will perform,
Before work can begin on a subcontract, the local agency will require the contractor to
submit a completed "Subcontracting Request," Exhibit 16- B of the LAPM or equivalent.
When the RE receives the completed form it will be checked for agreement of the first
tier subcontractors and DBEs, The RE will not approve the request when it identifies
someone other than the DBE or first tier subcontractor listed in the previously completed
"Local Agency Bidder DBE Information," Exhibit 15-G, The "Subcontracting Request"
will not be approved until any discrepancies are resolved, If an issue cannot be resolved
at that time or there is some other concern, the RE will require the contractor to eliminate
the subcontractor in question before signing the subcontracting request. A change in the
DBE or first tier subcontractor may be addressed during a substitution process at a later
date,
Suppliers, vendors, or manufacturers listed on the "Local Agency Bidder DBE
Information" will be compared to those listed in the completed Exhibit 16-1 of the LAPM
or equivalent. Differences must be resolved by either making corrections or requesting a
substitution,
Substitutions will be subject to the Subletting and Subcontracting Fair Practices Act
(FP A), Local agencies will require contractors to adhere to the provisions within
Subletting and Subcontracting Fair Practices Act (State Law) Sections 4100-4144, FPA
requires the contractor to list all subcontractors in excess of one half of one percent
(0,5%) ofthe contractor's total bid or $10,000, whichever is greater. The statute is
designed to prevent bid shopping by contractors, The FP A explains that a contractor may
not substitute a subcontractor listed in the original bid except with the approval of the
awarding authority,
The RE will give the contractor a blank Exhibit 17-F, "Final Report Utilization of
Disadvantaged Business Enterprises, First Tier Subcontractors," and will explain to them
that the document will be required at the end of the project for which payment can be
withheld, in conformance with the contract.
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Construction Contract Monitoring
The RE will ensure that the RE's staff (inspectors) knows what items of work each DBE
is responsible for. Inspectors will notify the RE immediately of apparent violations,
When a firm other than the listed DBE subcontractor is found performing the work, the
RE will notify the contractor of the apparent discrepancy and potential loss of payment.
Based on the contractor's response, the RE will take appropriate action: The DBE
Liaison Officer will perform a preliminary investigation to identify any potential issues
related to the DBE subcontractor performing a commercially useful function, Any
substantive issues will be forwarded to the Caltrans Disadvantaged Business Enterprise
Program, If the contractor fails to adequately explain why there is a discrepancy,
payment for the work will be withheld and a letter will be sent to the contractor
referencing the applicable specification violation and the required withholding of
payment,
If the contract requires the submittal of a montWy truck document, the contractor will be
required to submit documentation to the RE showing the owner's name, California
Highway Patrol CA number, and the DBE certification number of the owner of the truck
for each truck used during that month for which DBE participation will be claimed, The
trucks will be listed by California Highway patrol CA number in the daily diary or on a
separate piece of paper for documentation, The numbers are checked by inspectors
regularly to confirm compliance,
Providing evidence ofDBE payment is the responsibility of the contractor,
Substitution
When a DBE substitution is requested, the RE/Contract Manager will request a letter
from the contractor explaining why substitution is needed, The RE/Contract Manager
must review the letter to be sure names and addresses are shown, dollar values are
included, and reason for the request is explained, If the RE/Contract Manager agrees to
the substitution, the RE/Contract Manager will notify, in writing, the DBE subcontractor
regarding the proposed substitution and procedure for written objection from the DBE
subcontractor in accordance with the Subletting and Subcontracting Fair Practices Act. If
the contractor is not meeting the contract goal with this substitution, the contractor must
provide the required good faith effort to the RE/Contract Manager for local agency
consideration,
Ifthere is any doubt in the RE/Contract Manager's mind regarding the requested
substitution, the RE/Contract Manager may contact the DLAE for assistance and
direction. '
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Record Keeping and Final Report Utilization of Disadvantaged Business Enterprises
The contractor shall maintain records showing the name and address of each first-tier
subcontractor. The records shall also show:
1, The name and business address, regardless of tier, of every DBE
subcontractor, DBE vendor of materials and DBE trucking company,
2, The date of payment and the total dollar figure paid to each of the firms,
3. The DBE prime contractor shall also show the date of work performed by
their own forces along with the corresponding dollar value of the work
claimed toward DBE goals,
When a contract has been completed, the contractor will provide a summary of the
records stated above, The DBE utilization information will be documented on Exhibit
l7-F and will be submitted to the DLAE attached to the Report of Expenditures, The RE
will compare the completed Exhibit l7-F to the contractor's completed Exhibit l5-G and,
if applicable, to the completed Exhibit l6-B. The DBEs shown on the completed Exhibit
17-F should be the same as those originally listed unless an authorized substitution was
allowed, or the contractor used more DBEs and they were added, The dollar amount
should reflect any changes made in planned work done by the DBE, The contractor will
be required to explain in writing why the names of the subcontractors, the work items or
dollar figures are different from what was originally shown on the completed Exhibit IS-
O when:
. There have been no changes made by the RE,
. The contractor has not provided a sufficient explanation in the comments section
of the completed Exhibit 17- F,
The explanation will be attached to the completed Exhibit 17 -F for submittal. The RE
will file this in the project records,
The local agency's Liaison Officer will keep track of the DBE certification status on the
Internet at www.dot.ca.govlhg/bep and keep the RE informed of changes that affect the
contract. The RE will require the contractor to act in accordance with existing
contractual commitments regardless of decertification,
The DLAE will use the PS&E checklist to monitor the City of Gilroy's commitment to
require bidders list information to be submitted to the City of Gilroy from the awarded
prime and subcontractors as a means to develop a bidders list. This monitoring will only
take place if the bidders list information is required to be submitted as stipulated in the
special provisions,
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The City of Gilroy will bring to the attention of the DOT through the DLAE any false,
fraudulent, or dishonest conduct in connection with the program, so that the DOT can
take the steps (e,g" referral to the Department of Justice for criminal prosecution, referral
to the DOT Inspector General, action under suspension and debarment or Program Fraud
and Civil Penalties rules) provided in 926.109, The City of Gilroy also will consider
similar action under our own legal authorities, including responsibility determinations in
future contracts,
XIV Overall Goals (926.45)
Amount of Goal
The City of Gilroy's overall goal for the Federal fiscal year FY 2001 is the following:
8,0% of the Federal financial assistance in FHWA-assisted contracts, This overall goal is
broken down into 6,3% race-conscious and 1.7% race-neutral components,
Methodologv
The City of Gilroy utilized the two-step methodology to calculate the DBE goal. Per
federally funded project, the following were determined:
. Amount of Federal Funds
. Work Category Codes (WCC), Percentages, and Descriptions
. Comparable SICINAICS Census Codes
. Availability ofDBE
. Total $ of Work to be Subcontracted by DBE
Step 1 produced a Base Figure of 6,0%, The adjustment of Step 2 increased the Base
Figure by 2,0% for an overall annual DBE goal of 8,0%. Please see Attachment B ofthis
program for details,
Breakout of Estimated Race-Neutral and Race-Conscious Participation
It was determined that of the annual overall DBE goal, 6.3% would be met through race-
conscious methods and 1,7% through race-neutral methods, Please see Attachment B of
this program for details,
Process
Starting with the Federal fiscal year 2002, the amount of overall goal, the method to
calculate the goal, and the breakout of estimated race-neutral and race-conscious
participation will be required annually by June 1 in advance of the Federal fiscal year
beginning October 1 for FHW A-assisted contracts, Submittals will be to the Caltrans'
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DLAE, An exception to this will be ifFTA or FAA recipients are required by FTA or
FAA to submit the annual information to them or a designee by another date, FHW A
recipients will follow this process:
Once the DLAE has responded with preliminary comments and the comments have been
incorporated into the draft overall goal information, the City of Gilroy will publish a
notice of the proposed overall goal, informing the public that the proposed goal and its
rationale are available for inspection during normal business hours at the City of Gilroy's
principal office for 30 days following the date of the notice, and informing the public that
the City of Gilroy comments will be accepted on the goals for 45 days following the date
of the notice, Advertisements in newspapers, minority focus media, trade publications,
and websites will be the normal media to accomplish this effort, The notice will include
addresses to which comments may be sent and addresses (including offices and websites)
where the proposal may be reviewed,
The overall goal resubmission to the Caltrans DLAE, will include a summary of
information and comments received during this public participation process and the City
of Gilroy' s responses, This will be due by September I to the Caltrans DLAE, The
DLAE will have a month to make a final review so the City of Gilroy may begin using
the overall goal on October I of each year.
If there is design-built, please refer to Appendix B of this Model DBE Program,
xv Contract Goals (926,51)
The City of Gilroy will use contract goals to meet any portion of the overall goal the City
of Gilroy does not project being able to meet by the use of race-neutral means, Contract
goals are established so that, over the period to which the overall goal applies, they will
cumulatively result in meeting any portion of the overall goal that is not projected to be
met through the use of race-neutral means.
Contract goals will be established only on those DOT-assisted contracts that have
subcontracting possibilities, Contract goals need not be established on every such
contract, and the size of contract goals will be adapted to the circumstances of each such
contract (e,g., type and location of work, availability ofDBEs to perform the particular
type of work), The contract work items will be compared with eligible DBE contractors
willing to work on the project. A determination will also be made to decide which items
are likely to be performed by the prime contractor and which ones are likely to be
performed by the subcontractor(s), The goal will then be incorporated into the contract
documents, Contract goals will be expressed as a percentage of the total amount of a
DOT -assisted contract.
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XVI Transit V chicle Manufacturers Cg26.49)
If DOT-assisted contracts will include transit vehicle procurements, the City of Gilroy
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, The City of Gilroy will direct the transit
vehicle manufacturer to the subject requirements located on the Internet at
http://osdbuweb.dot.gov/programs/dbe/dbe,htm.
XVII Good Faith Efforts Cg26.53)
Information to be Submitted
The City of Gilroy treats bidders' /offerors' compliance with good faith effort
requirements as a matter of responsiveness, A responsive proposal is meeting all the
requirements of the advertisement and solicitation,
Each solicitation for which a construction contract goal has been established will require
the bidders/offerors to submit the following information to the City of Gilroy, 7351
Rosanna Street, Gilroy, CA 95020, no later than 4:00 P,M, on or before the fourth day,
not including Saturdays, Sundays and legal holidays, following bid opening:
1, The names and addresses of known DBE firms that will participate in the
contract;
2, A description of the work that each DBE will perform;
3, The dollar amount of the participation of each DBE firm participation;
4. Written and signed documentation of commitment to use a DBE subcontractor
whose participation it submits to meet a contract goal;
5. Written and signed confirmation from the DBE that it is participating in the
contract as provided in the prime contractor's commitment; and
6, If the contract goal is not met, evidence of good faith efforts,
Demonstration of Good Faith Efforts
The obligation of the bidder/offeror is to make good faith efforts, The bidder/offeror can
demonstrate that it has done so either by meeting the contract goal or documenting good
faith efforts, Examples of good faith efforts are found in Appendix A to Part 26 attached,
The following personnel are responsible for determining whether a bidder/offeror who
has not met the contract goal has documented sufficient good faith efforts to be regarded
as responsive: Project Manager.
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The City of Gilroy will ensure that all information is complete and accurate and
adequately documents the bidder/offeror's good faith efforts before a commitment to the
performance of the contract by the bidder/offeror is made,
Administrative Reconsideration
Within 10 days of being informed by the City of Gilroy that it is not responsive because it
has not documented sufficient good faith efforts, a bidder/offeror may request
administrative reconsideration, Bidder/offerors should make this request in writing to the
following reconsideration official: Rick Smelser, City Engineer, 7351 Rosanna Street,
Gilroy, CA 95020, telephone number (408) 846-0450, email ricks@ci,gilroy,ca,us, The
reconsideration official will not have played any role in the original determination that
the bidder/offeror did not document sufficient good faith efforts,
As part of this reconsideration, the bidder/offeror will have the opportunity to provide
written documentation or argument concerning the issue of whether it met the goal or
made adequate good faith efforts to do so, The bidder/offeror will have the opportunity
to meet in person with our reconsideration official to discuss the issue of whether it met
the goal or made adequate good faith efforts to do so, The City of Gilroy will send the
bidder/offeror a written decision on reconsideration, explaining the basis for finding that
the bidder did or did not meet the goal or make adequate good faith efforts to do so, The
result of the reconsideration process is not administratively appealable to Caltrans,
FHW A, or the DOT,
Good Faith Efforts When a DBE is Replaced on a Contract
The City of Gilroy will require a contractor to make good faith efforts to replace a DBE
that is terminated or has otherwise failed to complete its work on a contract with another
certified DBE, to the extent needed to meet the contract goal. The prime contractor is
required to notify the RE immediately ofthe DBE's inability or unwillingness to perform
and provide reasonable documentation,
In this situation, the prime contractor will be required to obtain City of Gilroy prior
approval of the substitute DBE and to provide copies of new or amended subcontracts, or
documentation of good faith efforts, If the contractor fails or refuses to comply in the
time specified, the City of Gilroy contracting office will issue an order stopping all or
part of payment/work until satisfactory action has been taken, If the contractor still fails
to comply, the contracting officer may issue a termination for default proceeding,
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XVIII Counting DBE Participation (~26,55)
The City of Gilroy will count DBE participation toward overall and contract goals as
provided in the contract specifications for the prime contractor, subcontractor, joint
venture partner with prime or subcontractor, or vendor of material or supplies, See
Caltrans' Sample Boiler Plate Contract Documents previously mentioned. Also, refer to
XIII. "After Contract Award,"
XIX Certification (g26,83(a))
The City of Gilroy ensures that only DBE firms currently certified on Caltrans' directory
will participate as DBEs in our program,
xx Information Collection and Reporting
Bidders List
The City of Gilroy 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 firms,
Monitoring Pavrnents to DBEs
Prime contractors are required to maintain records and documents of payments to DBEs
for three years following the performance of the contract. These records will be made
available for inspection upon request by any authorized representative of the City of
Gilroy, Caltrans, FHW A or DOT, This reporting requirement also extends to any
certified DBE subcontractor.
Payments to DBE subcontractors will be reviewed by the City of Gilroy to ensure that the
actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in
the schedule ofDBE participation,
Reporting to Caltrans
The City of Gilroy - Final utilization ofDBE participation will be reported to the DLAE
using Exhibit 17-F ofthe Caltrans' LAPM,
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Confidentialitv
The City of Gilroy will safeguard from disclosure to third parties information that may
reasonably be regarded as confidential business information, consistent with Federal,
state, and local laws,
City Administrator
Date
This Model Disadvantaged Business Enterprise Program is accepted by:
Local Assistance Engineer, District 4
Date
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APPENDIX A TO PART 26 - GUIDANCE CONCERNING GOOD FAITH
EFFORTS
I. When, as a recipient, you establish a contract goal on a DOT -assisted contract, a
bidder must, in order to be responsible and/or responsive, make good faith effort
to meet the goal, The bidder can meet this requirement in either of two ways,
First, the bidder can meet the goal, documenting commitments for participation by
DBE firms sufficient for this purpose. Second, even ifit doesn't meet the goal, the
bidder can document adequate good faith efforts. This means that the bidder must
show that it took all necessary and reasonable steps to achieve a DBE goal or
other requirement of this part, which, by their scope, intensity, and appropriateness
to the objective, could reasonably be expected to obtain sufficient DBE
participation, even if they were not fully successful.
II. In any situation in which you have established a contract goal, part 26 requires you
to use the good faith efforts mechanism of this part. As a recipient, it is up to you
to make a fair and reasonable judgment whether a bidder that did not meet the goal
made adequate good faith efforts, It is important for you to consider the quality,
quantity, and intensity ofthe different kinds of efforts that the bidder has made.
The efforts employed by the bidder should be those that one could reasonably
expect a bidder to take if the bidder were actively and aggressively trying to obtain
DBE participation sufficient to meet the DBE contract requirements, Mere pro
forma efforts are not good faith efforts to meet the DBE contract requirements,
We emphasize, however, that your determination concerning the sufficiency of the
firm's good faith efforts is a judgment call: meeting quantitative formulas is not
required,
III. The Department also strongly cautions you against requiring that a bidder meet a
contract goal (i.e., obtain a specified amount ofDBE participation) in order to be
awarded a contract, even though the bidder makes an adequate good faith efforts
showing. This rule specifically prohibits you from ignoring bona fide good faith
efforts,
IV. The following is a list of types of actions that you should consider as part of the
bidder's good faith efforts to obtain DBE participation, It is not intended to be a
mandatory checklist, nor is it intended to be exclusive or exhaustive, Other factors
or types of efforts may be relevant in appropriate cases,
A. Soliciting through all reasonable and available means (e,g., attendance at
pre-bid meetings, advertising and/or written notices) the interest of all
certified DBEs who have the capability to perform the work of the
contract, The bidder must solicit this interest within sufficient time to
allow the DBEs to respond to the solicitation. The bidder must determine
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with certainty if the DBEs are interested by taking appropriate steps to
follow up initial solicitations,
B. Selecting portions of the work to be performed by DBEs in order to
increase the likelihood that the DBE goals will be achieved, This includes,
where appropriate, breaking out contract work items into economically
feasible units to facilitate DBE participation, even when the prime
contractor might otherwise prefer to perform these work items with its
own forces,
C, Providing interested DBEs with adequate information about the plans,
specifications, and requirements of the contract in a timely manner to
assist them in responding to a solicitation,
D, (I) Negotiating in good faith with interested DBEs, It is the bidder's
responsibility to make a portion of the work available to DBE
subcontractors and suppliers and to select those portions of the work or
material needs consistent with the available DBE subcontractors and
suppliers, so as to facilitate DBE participation, Evidence of such
negotiation includes the names, addresses, and telephone numbers of
DBEs that were considered; a description of the information provided
regarding the plans and specifications for the work selected for
subcontracting; and evidence as to why additional agreements could not be
reached for DBEs to perform the work,
(2) A bidder using good business judgment would consider a number of
factors in negotiating with subcontractors, including DBE subcontractors,
and would take a firm's price and capabilities as well as contract goals into
consideration, However, the fact that there may be some additional costs
involved in finding and using DBEs is not in itself sufficient reason for a
bidder's failure to meet the contract DBE goal, negotiating with
subcontractors, including DBE subcontractors, and would take a as long as
such costs are reasonable, Also, the ability or desire of a prime contractor
to perform the work of a contract with its own organization does not
relieve the bidder of the responsibility to make good faith efforts, Prime
contractors are not, however, required to accept higher quotes from DBEs
if the price difference is excessive or unreasonable,
E, Not rejecting DBEs as being unqualified without sound reasons based on a
thorough investigation of their capabilities, The contractor's standing
within its industry, membership in specific groups, organizations, or
associations and political or social affiliations (for example union vs, non-
union employee status) are not legitimate causes for the rejection or non-
solicitation of bids in the contractor's efforts to meet the project goal.
.
.
F. Making efforts to assist interested DBEs in obtaining bonding, lines of
credit, or insurance as required by the recipient or contractor.
G, Making efforts to assist interested DBEs in obtaining necessary equipment,
supplies, materials, or related assistance or services.
H. Effectively using the services of available minority/women community
organizations; minority/women contractors' groups; local, state, and
Federal minority/women business assistance offices; and other
organizations as allowed on a case-by-case basis to provide assistance in
the recruitment and placement ofDBEs.
V, In determining whether a bidder has made good faith efforts, you may take into
account the performance of other bidders in meeting the contract. For example,
when the apparent successful bidder fails to meet the contract goal, but others
meet it, you may reasonably raise the question of whether, with additional
reasonable efforts, the apparent successful bidder could have met the goal. If the
apparent successful bidder fails to meet the goal, but meets or exceeds the average
DBE participation obtained by the other bidders, you may view this, in conjunction
with other factors, as evidence of the apparent successful bidder having made good
faith efforts,
.
.
APPENDIX B
TO BE USED FOR DESIGN-BUILD CONTRACTS
The following are hereby incorporated into the Agency's Disadvantaged Business
Enterprise (DBE) Program:
II Objectives /Policy Statement (9926.1,26.23)
At the end of the first paragraph, add the following:
The Agency recognizes thai certain modifications are necessary to adapt the program
for use in connection with design-build contracts, and has therefore established certain
procedures applicable to design-build DBE contracts under the DBE Program. Public
Contract Code Section 4109 requires subcontractors to be identified by the prime
contractor for the subletting or subcontracting of any portion of the work in excess of
one-half of 1 percent of the prime contractor's total bid. Exceptions are only in the
cases of public emergency or necessity, and then only after a finding reduced to writing
as a public record of the awarding authority setting forth the facts constituting the
emergency or necessity. The written public record of the awarding authority/Agency
as to either emergency or necessity is attached hereto (See Appendix C for sample).
xm Monitoring and Enforcement Mechanisms (926.37)
At the end ofthe first paragraph below "After Contract Award," add the following
paragraph:
After Desilw-Build Contract Award
As described in the Section entitled "GOOD FAITH EFFORTS" below, each proposer
for an Agency design-build contract will be required to submit a DBE Performance
Plan as part of a responsive proposal. Following award of a design-build contract and
during both the design and construction portions of the project, the design-build
contractor will be required to submit documentation, in the form of progress reports
described below, to show that the design-build contractor is meeting the contract goal
for the project, or if the goal is not being met, the design-build contractor must submit
satisfactory evidence thai it has made good faith efforts, in accordance with that
Section, to meet the goal. Evidence of goodfaith efforts, as described in 49 CFR Part
26 Section 26.5349 and Appendix A, will be monitored by the Agency throughout the
duration of the design-build project.
.
.
At the end ofthe first paragraph below "Preconstruction Conference," add the
following sentence:
The contractor will prompdy provide the Agency with the information required by the
form entitled "Local Agency DRE Information" upon selection of any DRE or other
subcontractor not previously identified by the design-build contractor. During the
course of the contract, differences must be explained and resolved by either making
corrections or requesting a substitution.
At the end of the fourth paragraph below "Construction Contract Monitoring,"
add the following paragraph:
The contractor will pruvide DRE Progress Reports to the Agency with each invoice and
will pruvide an annual report on or before August 1 of each year of the design-build
contract Each report must also include a narrative summary stating whether the
contractor is on target with respect to the DRE goal set forth in the design-build
contract, whether the goal has been exceeded (stating the amount of the excess), or
whether the contractor is behind target (stating the amount of the deficit).
xvn Good Faith Efforts (~26.53)
At the end of the third paragraph below "Information to be Submitted," add the
following items:
7, A DRE Performance Plan containing a detailed description of the design-build
contractor's planned methodology for achieving the DRE goal stated in the
contract, including a description of the good faith efforts the design-build
contractor intends to undertake to achieve that goal.
8. A design-build proposal must also include an affidllvit that the proposer will either
attain the DBE goals for the design-build contract or will exercise good faith efforts
to do so.
At the end of the first paragraph below "Demonstration of Good Faith Efforts,"
add the following sentence:
If it is a design-build contract, each contractor proposing will be required to submit a
DRE Performance Plan as part of a responsive proposal and good faith efforts,
Date:
City Administrator
This Disadvantaged Business Enterprise Program for design-build contracts is accepted
by:
Date:
Local Assistance Engineer, District 4
.
.
APPENDIX C
RESOLUTION OF THE CITY OF GILROY REGARDING NECESSITY
OR EMERGENCY FOR SUBSEQUENT SUBCONTRACTOR
IDENTIFICATION AND SELECTION FOR DESIGN-BUILD CONTRACTS
(REQUIRED BY PUBLIC CONTRACT CODE SECTION 4109
ENTITLED "Public Emergency Grounds for Change")
A. EXPLANATION OF PUBLIC NECESSITY OR EMERGENCY:
B. FACTS CONSTITUTING THE PUBLIC NECESSITY OR
EMERGENCY:
C. FINDINGS:
D. RESOLUTION FOR SUBSEQUENT IDENTIFICATION OF
SUBCONTRACTORS:
E. ADOPTION OF PROCEDURE TO BE USED BY DESIGN-BUILD
CONTRACTOR FOR SUBSEQUENT IDENTIFICATION OF
SUBCONTRACTORS:
F. CERTIFICATE OF SECRETARY
1. MOTION MADE AND DATE
2. VOTING RESULTS
3. SIGNATURES:
(a) (Secretary)
(b) (Chairperson)
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. DBE Historical DBE Bids bv C.
Project Description: Bridge Widening - Upgrade (IOOF, Rodgers, Lewis, Forrest)
County: San Luis Obispo (outside of appropriate geographic market area)
WCC - CI901 & NAtCS - 23593
Roadway Excavation
(43 & SW) Total
Number Number
of of
Counties DBE all
Firms Buss.
Alameda II 40
Contra Costa 4 48
San Benito 0 3
San Luis Obis 0 1 21
San Mateo 5 30
Santa Clara 4 44
Santa Cruz 0 8
TOTALS 25 194
#DBE 1 TOTAL # 12.9%
WCC - C3901 & NAICS - 23411
Asphalt Concrete
(43 & SW) Total
Number Number
of of
Counties DBE all
Firms Buss,
Alameda I 37
Contra Costa 0 34
San Benito 0 2
San Luis Obispo 0 19
San Mateo 2 17
Santa Clara 3 42
Santa Cruz 0 9
TOTALS 6 160
#DBE 1 TOTAL # 3.8%
WCC - C5501 & NAICS - 23412/23591
Steel Structures
(43 & SW) Total Total
Number Number Number
of of all of all
Counties DBE Buss. Buss,
Firms 23412 23591
Alameda 4 5 23
Contra Costa 3 3 16
San Benito 0 0 I
San Luis Obispo 1 0 6
San Mateo I I 9
Santa Clara I 4 17
Santa Cruz 0 0 3
TOTALS 10 13 75
#DBE 1 TOTAL # 76.9% ll.4%
File Name: Gilroy Goal FINAL.xls
Sheet Name: Work Category Code
.
, ATTACHMENT B
WCC - C2602 & NAtCS - 23411
Aggregate Base
WCC - C4010 & NAtCS - 23411/23571
Portland Cement & Concrete Pavement
(43 & SW) Total
Number Number
of of all
DBE Buss.
Firms 23411
2 37
1 34
o 2
o 19
2 17
2 42
o 9
7 160
4.4%
Counties
Alameda
Contra Costa
San Benito
San Luis Obispo
San Mateo
Santa Clara
Santa Cruz
TOTALS
# DBE 1 TOTAL #
Counties
Alameda
Contra Costa
San Benito
San Luis Obispo
San Mateo
Santa Clara
Santa Cruz
TOTALS
#DBE/TOTAL#
(43 & SW)
Number
of
DBE
Firms
Total
Number
of
all
Buss,
37
34
2
19
17
42
9
160
5.0%
1
1
o
o
2
4
o
8
Total
Number
of all
Buss,
23571
76
87
10
35
59
136
27
430
1.5%
WCC - C7301 & NAtCS - 23411/23571
Concrete Curb & Sidewalk - MiseellaneoDS
(43 & SW) Total Total
Number Number Number
of of all ofall
Counties DBE Buss, Buss,
Firms 23411 23571
Alameda 4 37 76
Contra Costa 0 34 87
San Benito 0 2 10
San Luis Obispo 19 35
San Mateo 4 17 59
Santa Clara 1 42 136
Santa Cruz 0 9 27
TOTALS 9 160 430
#DBE/TOTAL#
5,6%
1.5%
4
.
.
I, RHONDA PELLIN, City Clerk of the City of Gilroy, do hereby certifY that the attached
Resolution No. 2000-82 is an original resolution, duly adopted by the Council ofthe City of
Gilroy at a regular meeting of said Council held on the 18th day of December, 2000, at which
meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of
the City of Gilroy this 2nd day ofJanuary, 2001.
~.~
(Seal)