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HomeMy WebLinkAbout06 APPV DBE OF 12% FOR FED FY 08/09 & 09/10 06-02-09_~ ~- ter. ; ~; AGENDA REPORT Agenda Item 6 Reviewed: ~~ City Manager Finance Director NIA MEETING DATE: JUNE 2, 2009 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: TIM D. BEREFT, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER SUBJECT: APPROVAL OF THE ANNUAL ANTICIPATED DISADVANTAGED BUSINESS ENTERPRISE (DBE) PARTICIPATION LEVEL (AADPL) OF TWELVE PERCENT (12%) FOR FEDERAL FISCAL YEARS 2008-2009 AND 2009-2010 SUMMARY The City's Annual Anticipated Disadvantaged Business Enterprise (DBE) Participation Level (AADPL) has been determined and identifies an Overall Annual Level of twelve percent (12%) for Federal Fiscal Years (FFY) 2008-2009 and 2009-2010. Additionally, the City's DBE program satisfies the new race conscious (RC) DBE requirements. The required public participation process has been completed and the submitted AADPL is ready for City Council approval. RECOMMENDATION It is recommended that the City Council adopt Resolution No. 09-32 approving the Annual Anticipated Disadvantaged Business Enterprise (DBE) Participation Level (AADPL) and Overall Annual Level of twelve percent (12%) for Federal Fiscal Years 2008-2009 and 2009- 2010. FISCAL IMPACT City Council adoption of Resolution No. 09-32 will ensure the City's continued receipt of federal funding for various Capital Improvement Projects that are partially funded through the United States Department of Transportation. BACKGROUND The attached AADPL for FFY 2008-2009 and 2009-2010 addresses critical components and elements of the Federal Department of Transportation regulations. The City of Tustin's Overall Annual Level for FFY 2008-2009 and 2009-2019 is twelve percent (12%). Upon approval, it will be annually calculated to maintain relevancy to local market conditions and factors impacting DBE availability. The current project subject to the City's RC DBE Program is the Jamboree Road Pavement Rehabilitation between 2750 feet north of Tustin Ranch Road and the north City Limits (CIP No. 7194). ~ This project will be partially funded by the American Recovery and Reinvestment Act of 2009. It is anticipated that the award date of the construction contract for the project will be prior to October 1, 2009, in which case the AADPL for the FFY 2008-2009 would apply. Otherwise, if the project is awarded on, or after, October 1, 2009, the AADPL for the FFY 2009-2010 would apply. Approval of the AADPL June 2, 2009 Page 2 The draft AADPL for FFY 2008-2009 and 2009-2010 was submitted to Caltrans on May 21, 2009 and the City is awaiting confirmation of compliance with Federal DBE Program requirements. The draft AADPL for FFY 2008-2009 and 2009-2010 is now ready for City Council approval. Tim D. Serlet Director of Public Works/City Engineer • ~ ICJ Dana R. Kasdan Engineering Services Manager Attachment: Resolution No. 09-32 Annual AADPL for FFY 2008-2009 Annual AADPL for FFY 2009-2010 S:\City Council Items\2009 Council ItemsWpproval of AADPL for FFY 2008-2009 & 2009-2010 & Reso 09-32.docx RESOLUTION NO. 09-32 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING THE ANNUAL ANTICIPATED DISADVANTAGED BUSINESS ENTERPRISE (DBE) PARTICIPATION LEVEL (AADPL) OF TWELVE PERCENT (12%) FOR FEDERAL FISCAL YEARS (FFY) 2008-2009 AND 2009-2010, FOR ADOPTION AND SUBMISSION TO THE CALIFORNIA DEPARTMENT OF TRANSPORTATION (CALTRANS) WHEREAS, the City of Tustin is required to develop and submit an Annual Anticipated Disadvantaged Business Enterprise (DBE) Participation Level (AADPL) for United States Department of Transportation (DOT) assisted contracts, as a condition of federal financial assistance, pursuant to the California Department of Transportation's (Caltrans) directives issued March 4, 2009 requiring that the City implement aRace- Conscious DBE Program; and WHEREAS, in accordance with DBE regulations, the City of Tustin has developed a narrowly tailored Race-Conscious Annual Anticipated DBE Participation Level (AADPL) of twelve percent (12%) for Federal Fiscal Years (FFY) 2008-2009 & 2009- 2010; and WHEREAS, City Council adoption is required to ensure compliance with Department of Transportation federal funding requirements, provisions and financial responsibilities; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Tustin does hereby authorize the approval of the Race-Conscious Annual Anticipated DBE Participation Level (AADPL) for FFY 2008-2009 and 2009-2010. AND BE IT FURTHER RESOLVED that the City Engineer acting as the City's DBE Liaison Officer is hereby authorized to execute the Annual Anticipated Disadvantaged Business Enterprise (DBE) Participation Level (AADPL) for FFY 2008-2009 and 2009- 2010, and submit to the California Department of Transportation (Caltrans) on behalf of the City for funding authority approval. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin held on the 2"d day of June 2009. Doug Davert, Mayor ATTEST: Pamela Stoker, City Clerk ANNUAL ANTICIPATED DISADVANTAGED BUSINESS ENTERPRISE (DBE) PARTICIPATION LEVEL (AADPL) FOR FEDERAL FISCAL YEAR 2008-2009 Public Works /Engineering Exhibit 9-B Local Agency DBE Annual Submittal Form TO: CALTRANS DISTRICT 12 District Local Assistance Engineer - Mr. Jim Kaufman The amount of the Annual Anticipated DBE Participation Level (AADPL) and methodology are presented herein, in accordance with Title 49 of the Code of Federal Regulations (CFR), Part 26, and the State of California, Department of Transportation Disadvantaged Business Enterprise (DBE) Program Plan. The City of Tustin submits our AADPL information. We have established an AADPL of 12% (3% Race Neutral; 9% Race Conscious) for the Federal Fiscal Year 2008 - 2009, beginning on October 1, 2008 and ending on September 30, 2009. Methodology Refer to the attached AADPL Methodology Enclosure. Disadvantaged Business Enterprise Liaison Officer (DBELO) Mr. Tim D. Serlet, Public Works Director 300 Centennial Way, Tustin, CA 92780 Phone: (714) 573-3150 Fax: (714) 734-8991 E-mail: tserletCa~tustinca.orq Planned Race-Neutral Measures The City of Tustin plans to implement the following race-neutral measures to comply with 49 CFR Part 26.51 and Section V of the California Department of Transportation Race-Conscious DBE Program Implementation Agreement for Local Agencies. 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); Planned Race- Neufra/ Measures: The City will, through its website, refer the DBE and Small Business Contracting Community to the SBA Bonding Assistance Program, via the Caltrans California Construction Contracting Program (CCCP) and its technical counselors. • 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); Planned Race-Neutral Measures: The City will solicit DBEs and Small Businesses within the City's defined market area utilizing any or all of the following means: Issue solicitation flyers/letters fo promote upcoming bid opportunities through, email blasts, postcards, website posting, fax blasts, etc. Page 9-37 -xx ~ March 4, 2009 300 Centennial Way, Tustin, CA 92780 • P: (714) 573-3150 • F: (714) 734-8991 • www.tustinca.org 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; Planned Race-Neutral Measures: The City will actively promote the Caltrans sponsored California Construction Contracting Program (CCCP) to its market place contractors, consultants and vendors through the City's website by directing them to www.buildcalifornia.org • Ensuring distribution of your DBE directory, through print and electronic means, to the widest feasible universe of potential prime contractors; Planned Race-Neutral Measures: The City will advise its Contracting Community of the availability of the California Unified Cert~cation Program (CUCP) database (directory of Certified DBEs) website at www.dot.ca.QOV/ucp/GetLicenseForm.do • Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and conduct business through electronic media; Planned Race- . Neutral Measures: The C+ty will advise the DBE and Small Business community to participate and attend Caltrans' sponsored free courses specifically offered through the CCCP, specifically the "Navigating the Caltrans Procurement Website course" to assess bid opportunities, as this course includes tips on accessing local agencies websites as well. Promat 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. (Attached is a listing of the three methods. On the attachment, please designate which prompt payment provision the local agency will use.) 49 CFR Part 26.29(d) requires providing appropriate means to enforce prompt payment. These means may include appropriate penalties for failure to comply with the terms and conditions of the contract. The means may also provide that any delay or postponement of payment among the parties may take place only for good cause, with the local agency's prior written approval. Please briefly describe the monitoring and enforcement mechanisms in place to ensure that all subcontractors, including DBEs, are promptly paid. / - Signature ) Tim D. Serlet Director of Public Works, City Engineer ~" ~ o~ /D~ Phone Number: (714) 573-3150 (Signature of Caltrans District Local Assistance Engineer [DEAF] Distribution: (1) Original - DLAE (2) Signed copy by the DLAE -Local Agency Date DBE Annual Submittal Form (04/01/08) ~ Page 9-37 LPP 09-roc March 4, 2009 (Attachment) Promat 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. ^ Method 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 Califomia 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 pertormance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors. ^ Method 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 pertormance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors. ® Method 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 pertormance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors. Page 9-37 LPP 09-xx March 4, 2009 CITY OF TUSTIN Annual Anticipated DBE Participation Level (AADPL) Methodology FF~ 2Q08/t19~ Submitted in fulfillment of Section 1101 of the Transportation Equity Act for the 21" Century 49 Code of Federal Regulations Part 26 and Caltrans Local Assistance Procedures Manual * This analysis is prepared exclusively for the City of Tustin, it is non-transferable and is not to be duplicated CITY OF TUSTIN ANNUAL ANTICIPATED DBE PARTICIPATION LEVEL (AADPL) METHODOLOGY FOR FEDERAL FISCAL YEAR 2008/09 the period of October 1, 2008 through September 30, I. INTRODUCTION The City of Tustin herein sets forth its Annual Anticipated DBE Participation Level (AADPL) and corresponding methodology for Federal Fiscal Year (FFY) 2008/09. The AADPL submitted for consideration includes Race-Neutral and Race-Conscious projections on how the City anticipates achieving its AADPL. The Race-Conscious component of the City's DBE program is limited to the four (4) Underutilized Disadvantaged Business Enterprise (LJDBE) groups (African American, Asian Pacific, Native American and Women), in conformance with Title 49 CFR Part 26 and directives and guidance issued by California Department of Transportation (Caltrans) dated March 4, 2009. II. DOT-ASSISTED CONTRACTING PROGRAM FOR FFY 2008/09 Table 1 serves to identify the City of Tustin's DOT-assisted contracting program for FFY 2008/09 considered in preparing its Annual Anticipated DBE Participation Level (AADPL). The Jamboree Road Pavement Rehabilitation Project scope of work includes: excavation of deteriorated pavement, replacement of traffic loops, asphalt and concrete repair. This project has viable subcontracting possibilities, a required criterion for AADPL consideration, and is anticipated to be awarded within FFY 2008/09. Table Table 2 provides a summary of the categories of work, utilizing the corresponding North American Industry Classification System (NAILS) by various scopes of the defined Contracts/Projects identified in Table Y (above) by various North American Industry Classification Systems (NAILS) work codes for purposes of weighing the categories of work based on their estimated dollaz value and the corresponding relative availability of DBEs in contrast to all firms available in the following "Base Figure" analysis City of Tustin AADPL Methodology for FFY 2008/09 Page 2 of 9 Ta ble 2 Water Supply and Irrigation 221310 3% Systems Water and Sewer Line and Related Structures 237110 2% Construction Plumbing Heating, and Air- 238220 10% Conditionin Contractors Power and Communication Line and Related Structures 237130 1% Construction Electrical Contractors 238210 10% Highway, Street, and Bridge 237310 23% Construction All Other Specialty Trade 238990 45% Contractors Other Building Finishing 238390 1% Contractors Site Preparation Contractors 238910 5% 100% (100% of Federal $ III. AADPL -METHODOLOGY Step 1: Determination of a Base Figure (26.45)1 To establish the City of Tustin's Base Figure of the relative availability of DBEs to all compazable firms (DBEs and Non-DBEs) available to bid or propose on the City's FFY 2008/09 DOT-assisted contracting opportunities projected to be solicited, the City followed one of the five prescribed federal methodologies to determine relative availability. This was accomplished by accessing the California Unifred Certification Program (CUCP) DBE Database of Certified Firms and the 2006 U.S. Census Bureau County Business Patterns (CBP) Database sorted by 1 Refer to Attachments I and II for corresponding detail of all work trades grouped under the primary NAICS Codes. z 26.45 represents Title 49 CFR Part 26 regulatory goal setting methodology reference. City of Tustin AADPL Methodology for FFY 2008/09 Paee 3 of 9 corresponding zip codes within the City's market area (defined as the County of Orange) for each of the specific subcontracting possibilities by NAICS Code. The City's local market area represents where the substantial majority of the City's dollars are intended to be expended and/or where the substantial majority of the City's bids or quotes aze received for similar types of work. The City made a concerted effort to ensure that the type of businesses included in the numerator was as close as possible to the types of businesses included in the denominator. For corresponding detail of all work category classifications grouped, refer to Attachments I and II. b For the numerator: California UCP DBE Database of Certified Firms ~ For the denominator: 2006 U.S. Census Bureau Business Pattern Database (CBP) To determine the relative availability of DBEs, the City divided the numerator representing the ratio of ready, willing and able DBE firms by NAICS within the City's defined mazket area, by the denominator representing all firms (DBEs and Non-DBEs) available by each work category within the defined market area. The City further refined its analysis by applying weight to each individual work category relative to its estimated contracting dollar shaze. The AADPL Base Figure resulting from this weighted calculation is as follows: Number of Ready, Willing, and Able DBEs X 100 =AADPL BASE FIGURE x Weight Number of All Available Firms (Including DBEs and Non-DBEs) Step 1: AADPL Base Figure (weighted by type of work to be performed (NAICS Categories) and estimated corresponding contracting dollars) CONSTRUCTION Base Fi ure = 3% (DBEs in NAICS 221310 g (CBPs in NAICS 221310) Base Figure = I .03 5 J l 15 Base Figure = .03 (.3333) Base Fi we = 2% (DBEs in NAICS 237110 g ) (CBPs in NAICS 227110) Base Figure = ~ .02 10 J 69 Base Figure = .02 (.1449) Base FiQUre= .0100 ~ Base Fisure = .0029 City of Tustin AADPL Methodology for FFY 2008/09 Pase 4 of 9 Base Figure = ( 10% (DBEs in NAICS 238220) J l( (CBP1s in NAICS 238220) J Base Figure = f 10% 8 J 790 Base Figure = .10 (.0101 } Base Figure = C 1 % (DBEs in NAICS 237130) J l (CBPs in NAICS 237130) J Base Figure = l 1% 4 J l 46 J Base Figure = .O1 (.0870) Base Figure = .0010 Base Figure = .0009 i Base Figure = C10% (DBEs in NAICS 238210)1 Base Figure = C 23% (DBEs in NAICS 237310) J rl (CBPss in NAICS 2382]0) J lr (CBPs1inNAICS 237310) J Base Figure = 110% 16 J Base Figure = 123% 23 J l 823 ` 64 Base Figure = .10 (.0194) Base Figure = .0019 Base Figure = .23 (.3594) Base Figure = .0827 Base Fi re = 45% (DBEs in NAICS 238990 Base Fi e = 1% BEs in NAICS 238390) Su ) ~' (D C (CBPs in NAICS 238990) (CBPs in NAICS 238390) Base Fi e = 45% 14 Base Fi e = 1 % 6 ~ ~ 343 103 Base Figure = .45 (.0408) Base Figure = .O1 (.0583) Base Figure = .0184 ~ Base Figure = .0006 City of Tustin AADPL Methodology for FFY 2008/09 Page 5 of 9 Base Figure = C 5% (DBEs in NAICS 238910)1 l (CBPs in NAICS 238910) J Base Figure = 5% 16 230 Base Figure = .OS (.0696) Base Figure = .0035 Base Figure = .0100 + .0029 + .0010 + .0009 + .0019 + .0827 + .0184+ .0006 + .0035 Base Figure= (.1219) 100 = 12.19 =12%* * Rounded to the nearest whole number Based on this analysis, the City of Tustin determined its AADPL to be 12% for FFY 2008/09. The AADPL is expressed as a percentage of all DOT-assisted funds that the City anticipates to expend in FFY 2008/09. The AADPL further serves to identify the relative availability of DBEs based on evidence of ready, willing, and able DBEs to all comparable firms, which aze known to be available to compete for and perform on the City's DOT-assisted contracts. The AADPL reflects a determination of the level of DBE participation, which would be expected absent the effects of discrimination. RACE-CONSCIOUS PROJECTION To determine the Race-Conscious component projection of its AADPL, the City of Tustin refined the numerator to exclusively represent the ratio of ready, willing and able LrDBE firms (African American, Asian Pacific American, Native American and Women owned firms) by NAICS within the City's defined mazket area and divided this number by the denominator representing all firms (DBEs and Non-DBEs) available by each work category within the defined market area. The City further refined its Race-Conscious projection anysis by applying weight to each work category relative to its estimated DOT-assisted dollar share. For corresponding detail of all defined work category classifications, refer to Attachments I-RC and Attachment II. City of Tustin AADPL Methodology for FFY 2008/09 Page 6 of 9 ~ ~ ~ .- Base Figure = 3% (DBEs in NAICS 221310) ) C Base Figure = 2% (DBEs in NAICS 237110) ( CBPs in NAICS 221310) ( (CBPs in NAICS 237110) Base Figure = C.03 1 J Base Figure = ~ .02 6 15 69 Base Figure = .03 (.0667) Base Figure = .02 (.0870) Base Figwe= .0020 Base Figure = .0017 i Base Figure = C 10% (DBEs in NAICS 238220)1 Base Figwe = C 1 % (DBEs in NAICS 237130)1 s in NAICS 238220) J l (CBP l (CBPs in NAICS 237130) r 1 Base Figure = 110% 5 J Base Figure = r 1% 1 1 790 l 46 J Base Figwe = .10 (.0063) Base Figure = .O1 (.0217) Base Figure = .0006 Base Figure = .0002 p Base Figwe = (l 0% (DBEs in NAICS 238210) J Base Figure = C 23% (DBEs in NAICS 237310) J l (CBPs in NAICS 238210) s in NAICS 237310) (CBP l r Base Figure = 110% 8 ~ 1 r Base Figure = 123% 17 J 823 ` 64 Base Figwe = .10 (.0097) Base Figure = .23 (.2656) Base Figure = .0010 Base Figure = .0611 City of Tustin AADPL Methodology for FFY 2008/09 Paee 7 of 9 Base Figure = C 45% (,DBEs in NAICS 238990)1 Base Figure - ~ 1 % (DBEs in NAICS 238390) 1 rl (CBPPs in NAICS 238990) J r (CBPs1 in NAICS 238390) J Base Figure = 145% 20 J Base Figure = I l % 2 J 343 ` 103 Base Figure = .45 (.0583) ~~ Base Figure = .O1 (.0194) Base Figure = .0262 Base Figure = .0002 Base Figure = C S% (DBEs in NAICS 238910)1 lr (CBPs1in NAICS 238910) J Base Figure = 15% 7 J 230 Base Figure = .OS (.0304) Base Figure = .0015 Base Figure = .0020 + .0017 + .0006 + .0002 + .0010 + .0611 + .0262 + .0002 + .0015 Race Conscious Projection= (.0945) 100 = 9.45 = 9%* * Rounded to the nearest whole number RACE-NEUTRAL PROJECTION To determine the Race-Neutral component projection of its AADPL, the City of Tustin subtracted the established AADPL Base Figure (12%) by the Race-Conscious Projection (9%). The Race-Neutral projection determined based on the application of this formula follows: City of Tustin AADPL Methodology for FFY 2008/09 Page 8 of 9 AADPL Base Figure (12%) -Race-Conscious Base Figure (9%) =Race Neutral (%) Projection Formula AADPL Base Figure 12 Race-Conscious ComponentProjection - 9 3% ~ Race-NeutraC Projection =-3°fo l RACE-NEUTRAL &RACE-CONSCIOUS PROJECTIONS Accordingly, the City of Tustin projects to meet 9% of the 12% AADPL for FFY 2008/09 utilizing Race-Conscious measures, including establishing and utilizing contract specific UDBE numeric goals, as necessary to achieve the AADPL. 3% of the 12% AADPL is projected to be achieved utilizing Race-Neutral methods in accordance with Title 49 CFR Part 26.51. The application of Race-Conscious goals on the City's DOT-assisted contracts will continue to be used only to the extent necessary to achieve the City's AADPL. Should the initial contract's actual DBE commitments exceed projections, adjustments will be made accordingly. IV. RACE-NEUTRAL IMPLEMENTATION MEASURES In accordance with Title 49 CFR Part 26.51, the City of Tustin understands it must meet the maximum feasible portion of its AADPL by utilizing Race-Neutral means of facilitating DBE participation. Therefore, the City plans to implement the following Race-Neutral measures for FFY 2008/09: - 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); Planned Race- Neutral Measures: The City will, through its website refer the DBE and Small Business Contracting Community to the SBA Bonding Assistance Program, via the Caltrans California Construction Contracting Program (CCCP) and its technical counselors. - 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); Planned Race Neutral Measures: The City will solicit DBEs and Small Businesses within the City s defined market area utilizing any or City of Tustin AADPL Methodology for FFY 2008/09 Paee 9 of 9 all of the following means.• Issue solicitation flyers/letters to promote upcoming bid opportunities through, email blasts, postcards, website posting, fax blasts, etc. - 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; Planned Race Neutral Measures: The City will actively promote the Caltrans sponsored California Construction Contracting Program (CCCP) to its market place contractors, consultants and vendors through the City s website by directing them to wvnv.buildcalifornia.org - Ensuring distribution of your DBE directory, through print and electronic means, to the widest feasible universe of potential prime contractors; Planned Race Neutral Measures: The City will advise its Contracting Community of the availability of the California Unified Certification Program (CUCP) database • (directory of Certified DBEs) website at www.dot.ca.gov/ucp/GetLicenseForm.do - Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and conduct business through electronic media. Planned Race- Neutral Measures: The City will advise the DBE and Small Business community to participate and attend Caltrans' sponsored free courses specifically offered through the CCCP, specifically the "Navigating the Caltrans Procurement Website "course to assess bid opportunities as this course includes tips on accessing local agencies websites as well. ANNUAL ANTICIPATED DISADVANTAGED BUSINESS ENTERPRISE (DBE) PARTICIPATION LEVEL (AADPL) FOR FEDERAL FISCAL YEAR 2009-2010 Public Works /Engineering Exhibit 9-B Local Agency DBE Annual Submittal Form TO: CALTRANS DISTRICT 12 District Local Assistance Engineer - Mr. Jim Kaufman The amount of the Annual Anticipated DBE Participation Level (AADPL) and methodology are presented herein, in accordance with Title 49 of the Code of Federal Regulations (CFR), Part 26, and the State of California, Department of Transportation Disadvantaged Business Enterprise (DBE) Program Plan. The City of Tustin submits our AADPL information. We have established an AADPL of 12% (3% Race Neutral; 9% Race Conscious) for the Federal Fiscal Year 2009 - 2010, beginning on October 1, 2009 and ending on September 30, 2010. Methodologv Refer to the attached AADPL Methodology Enclosure. Disadvantaged Business Enterprise Liaison Officer (DBELO) Mr. Tim D. Serlet, Public Works Director 300 Centennial Way, Tustin, CA 92780 Phone: (714) 573-3150 Fax: (714) 734-8991 E-mail: tserletCa~tustinca.org Planned Race-Neutral Measures The City of Tustin plans to implement the following race-neutral measures to comply with 49 CFR Part 26.51 and Section V of the Califomia Department of Transportation Race-Conscious DBE Program Implementation Agreement for Local Agencies. 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); Planned Race-Neutral Measures: The City will, through its website, refer the DBE and Small Business Contracting Community to the SBA Bonding Assistance Program, via the Caltrans California Construction Contracting Program (CCCP) and its technical counselors. 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); Planned Race-Neutral Measures: The City will solicit DBEs and Small Businesses within the City's defined market area ,Page 9-37 9-xx Marc , 300 Centennial Way, Tustin, CA 92780 • P: (714) 573-3150 • F: (714) 734-8991 • www.tustinca.org utilizing any or all of the following means: Issue solicitation flyers/letters to promote upcoming bid opportunities through, email blasts, postcards, website posting, fax blasts, etc. 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; Planned Race-Neutral Measures: The City will actively promote the Caltrans sponsored California Construction Contracting Program (CCCP) to its market place contractors, consultants and vendors through the City's website by directing them to www.buildcalifomia.orQ • Ensuring distribution of your DBE directory, through print and electronic means, to the widest feasible universe of potential prime contractors; Planned Race-Neutral Measures: The City will advise its Contracting Community of the availability of the California Unified Certification Program (CUCP) database (directory of Certified DBEs) website at www.dot.ca.pov/ucp/GetLicenseForm.do Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and conduct business through electronic media. Planned Race- Neufral Measures: The City will advise the DBE and Small Business community to participate and attend Caltrans'sponsored free courses specifically offered through the CCCP, specifically the "Navigating the Caltrans Procurement Website course" to assess bid opportunities as this course includes tips on accessing local agencies websites as well. 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. (Attached is a listing of the three methods. On the attachment, please designate which prompt payment provision the local agency will use.) 49 CFR Part 26.29(d) requires providing appropriate means to enforce prompt payment. These means may include appropriate penalties for failure to comply with the terms and conditions of the contract. The means may also provide that any delay or postponement of payment among the parties may take place only for good cause, with the local agency's prior written approval. Please briefly describe the monitoring and enforcement mechanisms in place to ensure that all subcontractors, including DBEs, are promptly paid. > _~ ~~~ (Signature) Tim D. Serlet Director of Public Works, City Engineer ~/T1~°, /Da~e Phone Number: (714) 573-3150 Date (Signature of Caltrans District Local Assistance Engineer [DEAF]) Distribution: (1) Original - DLAE (2) Signed copy by the DLAE -Local Agency DBE Annual Submittal Form (04/01/08) Page 9-37 LPP 09-roc March 4, 2009 (Attachment) Promat 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. ^ Method 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, 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. ^ Method 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. ® Method 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. Page 9-37 LPP 09-roc March 4, 2009 CITY OF TiZSTIN Annual Anticipated DBE Participation Level (AADPL) Methodology ~ ~a~~~~~ Submitted in fu fllment of Section 1101 of the Transportation Equity Act for the 21s` Century 49 Code of Federal Regulations Part 26 and Caltrans Local Assistance Procedures Manual * This analysis is prepared exclusively for the City of Tustin, it is non-transferable and is not to be duplicated CITY OF TUSTIN ANNUAL ANTICIPATED DBE PARTICIPATION LEVEL (AADPL) METHODOLOGY FOR FEDERAL FISCAL YEAR 2009/10 (Covering the period of October 1, 2009 through September 30, 2010) I. INTRODUCTION The City of Tustin herein sets forth its Annual Anticipated DBE Participation Level (AADPL) and corresponding methodology for Federal Fiscal Year (FFY) 2009/10. The AADPL submitted for consideration includes Race-Neutral and Race-Conscious projections on how the City anticipates achieving its AADPL. The Race-Conscious component of the City's DBE program is limited to the four (4) Underutilized Disadvantaged Business Enterprise (IJDBE) groups (African American, Asian Pacific, Native American and Women), in conformance with Title 49 CFR Part 26 and directives and guidance issued by California Department of Transportation (Caltrans) dated March 4, 2009. II. DOT-ASSISTED CONTRACTING PROGRAM FOR FFY 2009/10 Table 1 serves to identify the City of Tustin's DOT-assisted contracting program for FFY 2009/10 considered in preparing its Annual Anticipated DBE Participation Level (AADPL). The Jamboree Road Pavement Rehabilitation Project scope of work includes: excavation of deteriorated pavement, replacement of traffic loops, asphalt and concrete repair. This project has viable subcontracting possibilities, a required criterion for AADPL consideration, and is anticipated to be awarded within FFY 2009/ 10. Table 1 Table 2 provides a summary of the categories of work, utilizing the corresponding North American Industry Classification System (NAILS) by various scopes of the defined Contracts/Projects identified in Table 1 (above) by various North American Industry Classification Systems (NAILS) work codes for purposes of weighing the categories of work based on their estimated dollar value and the corresponding relative availability of DBEs in contrast to all firms available in the following "Base Figure" analysis City of Tustin AADPL Methodology for FFY 2009/10 Page 2 of 9 Ta ble 2 ~ ' Water Supply and Irrigation 221310 3% Systems Water and Sewer Line and Related Structures 237110 2% Construction Plumbing Heating, and Air- 238220 10% Conditionin Contractors Power and Communication Line and Related Structures 237130 1% Construction Electrical Contractors 238210 10% Highway, Street, and Bridge 237310 23% Construction All Other Specialty Trade 238990 45% Contractors Other Building Finishing 238390 1% Contractors Site Preparation Contractors 238910 5% 100% (100% of Federal $ III. AADPL -METHODOLOGY Step 1: Determination of a Base Figure (26.45)1 To establish ~ the City of Tustin's Base Figure of the relative availability of DBEs to all compazable firms (DBEs and Non-DBEs) available to bid or propose on the City's FFY 2009/10 DOT-assisted contracting opportunities projected to be solicited, the City followed one of the five prescribed federal methodologies to determine relative availability. This was accomplished by accessing the California Unified Certification Program (CUCP) DBE Database of Certified Firms and the 2006 U.S. Census Bureau County Business Patterns (CBP) Database sorted by 1 Refer to Attachments I and II for corresponding detail of all work trades grouped under the primary NAICS Codes. z 26.45 represents Title 49 CFR Part 26 regulatory goal setting methodology reference. City of Tustin AADPL Methodology for FFY 2009/10 Page 3 of 9 corresponding zip codes within the City's market area (defined as the County of Orange) for each of the specific subcontracting possibilities by NAICS Code. The City's local market area represents where the substantial majority of the City's dollars aze intended to be expended and/or where the substantial majority of the City's bids or quotes are received for similaz types of work. The City made a concerted effort to ensure that the type of businesses included in the numerator was as close as possible to the types of businesses included in the denominator. For corresponding detail of all work category classifications grouped, refer to Attachments I and II. ~ For the numerator: California UCPDBEDatabase of Certified Firms b For the denominator: 2006 U.S. Census Bureau Business Pattern Database (CBP) To determine the relative availability of DBEs, the City divided the numerator representing the ratio of ready, willing and able DBE firms by NAICS within the City's defined market azea, by the denominator representing all firms (DBEs and Non-DBEs) available by each work category within the defined market area. The City further refined its analysis by applying weight to each individual work category relative to its estimated contracting dollar share. The AADPL Base Figure resulting from this weighted calculation is as follows: Number of Ready, Willing, and Able DBEs x Weight X 100 =AADPL BASE FIGURE Number of All Available Firms (Including DBEs and Non-DBEs) Step 1: AADPL Base Figure (weighted by type of work to be performed (NAICS Categories) and estimated corresponding contracting dollars) CONSTRUCTION Base Figure = r3% (DBEs in NAICS 221310 ~ (CBPslin NAICS 221310) Base Figure = ~ .03 5 1 15 Base Figure = .03 (.3333) Base Fi ure = 2% BEs in NAICS 237110) g ( ~ l (CBPs in NAICS 227110) Base Figure = ~ .02 10 1 69 Base Figure = .02 (.1449) Base Fieure= .0100 1 Base Figure = .0029 City of Tustin AADPL Methodology for FFY 2009/10 Page 4 of 9 Base Figure = C 10% (DBEs in NAICS 238220) J lr (CBP1s in NAICS 238220) J Base Figure = 110% 8 J 790 Base Figure = .10 (.0101) Base Figure = C 1 % (DBEs in NAICS 237130) J l (CBPs in NAICS 237130) J Base Figure = 1% 4 46 Base Figure = .O1 (.0870) Base Figure = .0010 Base Figure = .0009 f ^ ~ Base Figure = C10% (DBEs in NAICS 238210) J Base Figure = 23% (DBEs in NAICS 237310) l l (CBPs in NAICS 238210) J l CBPs in NAICS 237310 J r 1 r ( ) Base Figure = 110% 16 J Base Figure = 123% 23 J l 823 ` 64 Base Figure = .10 (.0194) Base Figure = .0019 Base Figure = .23 (.3594) Base Figure = .0827 Base Figure = 45% (DBEs in NAICS 238990) Base Figure = 1% (DBEs in NAICS 238390) (CBPs in NAICS 238990) ~ C (CBPs in NAICS 238390) Base Figure = 45% 14 Base Figure = 1% 6 343) 103 C ~ Base Figure = .45 (.0408) Base Figure = .O1 (.0583) Base Figure = .0184 0 Base Figure = .0006 City of Tustin AADPL Methodology for FFY 2009/10 Paee 5 of 9 Base Figure = C 5% (,DBEs in NAICS 238910)1 l (CBPs in NAICS 238910) J Base Figure = 5% 16 C 230 Base Figure = .OS (.0696) Base Figure = .0035 Base Figure = .0100 + .0029 + .0010 + .0009 + .0019 + .0827 + .0184+ .0006 + .0035 Base Figure= (.1219) 100 = 12.19 =12%* * Rounded to the nearest whole number Based on this analysis, the City of Tustin determined its AADPL to be 12% for FFY 2009/10. The AADPL is expressed as a percentage of all DOT-assisted funds that the City anticipates to expend in FFY 2009/10. The AADPL further serves to identify the relative availability of DBEs based on evidence of ready, willing, and able DBEs to all comparable firms, which are known to be available to compete for and perform on the City's DOT-assisted contracts. The AADPL reflects a determination of the level of DBE participation, which would be expected absent the effects of discrimination. RACE-CONSCIOiIS PROJECTION To determine the Race-Conscious component projection of its AADPL, the City of Tustin refined the numerator to exclusively represent the ratio of ready, willing and able UDBE firms (African American, Asian Pacific American, Native American and Women owned firms) by NAICS within the City's defined market area and divided this number by the denominator representing all firms (DBEs and Non-DBEs) available by each work category within the defined market area. The City further refined its Race-Conscious projection anysis by applying weight to each work category relative to its estimated DOT-assisted dollar share. For corresponding detail of all defined work category classifications, refer to Attachments I-RC and Attachment II. City of Tustin AADPL Methodology for FFY 2009/10 Page 6 of 9 -r ~ ~ ~ Base Figure = 3% (DBEs in NAICS 221310)1 Base Figure = C 2% (DBEs in NAICS 237110) (CBPs in NAICS 221310) J l (CBPs in NAICS 237110) ) Base Figure = C.03 1 ~ Base Figure = ~ .02 6 J 15 69 Base Figure = .03 (.0667) Base Figure = .02 (.0870) Base Figure= .0020 Base Figure = .0017 ~ ~ .. Base Figure = C 10% (DBEs in NAICS 238220)1 I Base Figure = C 1 % (DBEs in NAICS 237130)1 s in NAICS 238220) J l (CBP l (CBPs in NAICS 237130) J 1 r Base Figure = 110% 5 I Base Figure = r 1% 1 1 790 J l 46 J Base Figure = .10 (.0063) Base Figure = .O1 (.0217) Base Figure = .0006 Base Figure = .0002 Base Figure = r 10% (DBEs in NAICS 238210) Base Figure = C 23% (DBEs in NAICS 237310) J l (CBPs in NAICS 238210) J l (CBP s in NAICS 237310) Base Figure = C10% 8 ~ 1 Base Figure = 123% 17 1 823 ` 64 Base Figure = .10 (.0097) Base Figure = .23 (.2656) Base Figure = .0010 Base Figure = .0611 City of Tustin AADPL Methodology for FFY 2009/10 Page 7 of 9 Base Figure = 45% (DBEs in NAICS 238990) J ~ Base Figure = ~ 1 % (DBEs in NAICS 238390) J C CBPs in NAICS 238990 (CBPs in NAICS 238390) ( ) Base Figure = 145% 20 J Base Figure = I 1% 2 343 ` 103 J Base Figure = .45 (.0583) ~ Base Figure = .O1 (.0194) Base Figure = .0262 Base Figure = .0002 Base Figure = C 5% (DBEs in NAICS 238910) l` (CBPs1in NAICS 238910) J Base Figure = 15% 7 J 230 Base Figure = .OS (.0304) Base Figure = .0015 Base Figure = .0020 + .0017 + .0006 + .0002 + .0010 + .0611 + .0262 + .0002 + .0015 Race Conscious Projection= (.0945) 100 = 9.45 = 9%* * Rounded to the nearest whole number RACE-NEUTRAL PROJECTION To determine the Race-Neutral component projection of its AADPL, the City of Tustin subtracted the established AADPL Base Figure (12%) by the Race-Conscious Projection (9%). The Race-Neutral projection determined based on the application of this formula follows: City of Tustin AADPL Methodology for FFY 2009/10 Page 8 of 9 AADPL Base Figure (12%) -Race-Conscious Base Figure (9%) =Race Neutral (%) Projection Formula AADPL Base Figure 12 Race-Conscious ComponentProjection - 9 3% 44 Race-Neutral P'rajectr`on = 3% f~ RACE-NEUTRAL &RACE-CONSCIOUS PROJECTIONS Accordingly, the City of Tustin projects to meet 9% of the 12% AADPL for FFY 2009/10 utilizing Race-Conscious measures, including establishing and utilizing contract specific UDBE numeric goals, as necessary to achieve the AADPL. 3% of the 12% AADPL is projected to be achieved utilizing Race-Neutral methods in accordance with Title 49 CFR Part 26.51. The application of Race-Conscious goals on the City's DOT-assisted contracts will continue to be used only to the extent necessary to achieve the City's AADPL. Should the initial contract's actual DBE commitments exceed projections, adjustments will be made accordingly. IV. RACE-NEUTRAL IMPLEMENTATION MEASURES In accordance with Title 49 CFR Part 26.51, the City of Tustin understands it must meet the maximum feasible portion of its AADPL by utilizing Race-Neutral means of facilitating DBE participation. Therefore, the City plans to implement the following Race-Neutral measures for FFY 2009/10: - 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); Planned Race- Neutral Measures: The City will, through its website refer the DBE and Small Business Contracting Community to the SBA Bonding Assistance Program, via the Caltrans California Construction Contracting Program (CCCP) and its technical counselors. - 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); Planned Race Neutral Measures: The City will solicit DBEs and Small Businesses within the City s deftned market area utilizing any or City of Tustin AADPL Methodology for FFY 2009/10 Pase 9 of 9 all of the following means: Issue solicitation flyers/letters to promote upcoming bid opportunities through, email blasts, postcards, website posting, fax blasts, etc. - 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; Planned Race Neutral Measures: The City will actively promote the Caltrans sponsored California Construction Contracting Program (CCCP) to its market place contractors, consultants and vendors through the City s website by directing them to www.buildcalifornia.org - Ensuring distribution of your DBE directory, through print and electronic means, to the widest feasible universe of potential prime contractors; Planned Race Neutral Measures: 7'he City will advise its Contracting Community of the availability of the California Unified Certification Program (CUCP) database (directory of Certified DBEs) website at www.dot.ca.gov/ucp/GetLicenseForm.do - Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and conduct business through electronic media. Planned Race- Neutral Measures: The City will advise the DBE and Small Business community to participate and attend Caltrans' sponsored free courses specifically offered through the CCCP, specifically the "Navigating the Caltrans Procurement Website "course to assess bid opportunities as this course includes tips on accessing local agencies websites as well.