1. Any subject data developed under that contract, whether or not a copyright has been obtained; and
2. Any rights of copyright purchased by the Purchaser or Contractor using Federal assistance in whole or in part provided by FTA.
(c) When FTA awards Federal assistance for experimental, developmental, or research work, it is FTA's general intention to increase transportation knowledge available to the public, rather than to restrict the benefits resulting from the work to participants in that work. Therefore, unless FTA determines otherwise, the Purchaser and the Contractor performing experimental, developmental, or research work required by the underlying contract to which this Attachment is added agrees to permit FTA to make available to the public, either FTA's license in the copyright to any subject data developed in the course of that contract, or a copy of the subject data first produced under the contract for which a copyright has not been obtained. If the experimental, developmental, or research work, which is the subject of the underlying contract, is not completed for any reason whatsoever, all data developed under that contract shall become subject data as defined in subsection (a) of this clause and shall be delivered as the Federal Government may direct. This subsection (c) , however, does not apply to adaptations of automatic data processing equipment or programs for the Purchaser or Contractor's use whose costs are financed in whole or in part with Federal assistance provided by FTA for transportation capital projects.
(d) Unless prohibited by state law, upon request by the Federal Government, the Purchaser and the Contractor agree to indemnify, save, and hold harmless the Federal Government, its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any willful or intentional violation by the Purchaser or Contractor of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under that contract.
Neither the Purchaser nor the Contractor shall be required to indemnify the Federal Government for any such liability arising out of the wrongful act of any employee, official, or agents of the Federal Government.
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 Best Practices Procurement Manual – Appendix A.1 Page 44 (e) Nothing contained in this clause on rights in data shall imply a license to the Federal Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Federal Government under any patent. (f) Data developed by the Purchaser or Contractor and financed entirely without using Federal assistance provided by the Federal Government that has been incorporated into work required by the underlying contract to which this Attachment has been added is exempt from the requirements of subsections (b), (c), and (d) of this clause, provided that the Purchaser or Contractor identifies that data in writing at the time of delivery of the contract work. (g) Unless FTA determines otherwise, the Contractor agrees to include these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA.
(3) Unless the Federal Government later makes a contrary determination in writing, irrespective of the Contractor's status (i.e., a large business, small business, state government or state instrumentality, local government, nonprofit organization, institution of higher education, individual, etc.), the Purchaser and the Contractor agree to take the necessary actions to provide, through FTA, those rights in that invention due the Federal Government as described in U.S. Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37 C.F.R. Part 401.
(4) The Contractor also agrees to include these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA.
B. Patent Rights - The following requirements apply to each contract involving experimental, developmental, or research work:
(1) General - If any invention, improvement, or discovery is conceived or first actually reduced to practice in the course of or under the contract to which this Attachment has been added, and that invention, improvement, or discovery is patentable under the laws of the United States of America or any foreign country, the Purchaser and Contractor agree to take actions necessary to provide immediate notice and a detailed report to the party at a higher tier until FTA is ultimately notified.
(2) Unless the Federal Government later makes a contrary determination in writing, irrespective of the Contractor's status (a large business, small business, state government or state instrumentality, local government, nonprofit organization, institution of higher education, individual), the Purchaser and the Contractor agree to take the necessary actions to provide, through FTA, those rights in that invention due the Federal Government as described in U.S.
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 Best Practices Procurement Manual – Appendix A.1 Page 45 Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37 C.F.R. Part 401.
(3) The Contractor also agrees to include the requirements of this clause in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA.
27. TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS
49 U.S.C. § 5310, § 5311, and § 5333
29 CFR Part 215
Applicability to Contracts
The Transit Employee Protective Provisions apply to each contract for transit operations performed by employees of a Contractor recognized by FTA to be a transit operator. (Because transit operations involve many activities apart from directly driving or operating transit vehicles, FTA determines which activities constitute transit "operations" for purposes of this clause.)
Flow Down
These provisions are applicable to all contracts and subcontracts at every tier.
Model Clause/Language
Since no mandatory language is specified, FTA had developed the following language:
Transit Employee Protective Provisions. (1) The Contractor agrees to the comply with applicable transit employee protective requirements as follows:
(a) General Transit Employee Protective Requirements - To the extent that FTA determines that transit operations are involved, the Contractor agrees to carry out the transit operations work on the underlying contract in compliance with terms and conditions determined by the U.S.
Secretary of Labor to be fair and equitable to protect the interests of employees employed under this contract and to meet the employee protective requirements of 49 U.S.C. A 5333(b), and U.S.
DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the letter of certification from the U.S. DOL to FTA applicable to the FTA Recipient's project from which Federal assistance is provided to support work on the underlying contract. The Contractor agrees to carry out that work in compliance with the conditions stated in that U.S. DOL letter. The requirements of this subsection (1), however, do not apply to any contract financed with Federal assistance provided by FTA either for projects for elderly individuals and individuals with disabilities authorized by 49 U.S.C. § 5310(a)(2), or for projects for nonurbanized areas authorized by 49 U.S.C. § 5311. Alternate provisions for those projects are set forth in subsections (b) and (c) of this clause.
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 Best Practices Procurement Manual – Appendix A.1 Page 46 (b) Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C. § 5310(a)(2) for Elderly Individuals and Individuals with Disabilities - If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. § 5310(a)(2), and if the U.S. Secretary of Transportation has determined or determines in the future that the employee protective requirements of 49 U.S.C. § 5333(b) are necessary or appropriate for the state and the public body subrecipient for which work is performed on the underlying contract, the Contractor agrees to carry out the Project in compliance with the terms and conditions determined by the U.S. Secretary of Labor to meet the requirements of 49 U.S.C. § 5333(b), U.S. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the U.S. DOL's letter of certification to FTA, the date of which is set forth Grant Agreement or Cooperative Agreement with the state. The Contractor agrees to perform transit operations in connection with the underlying contract in compliance with the conditions stated in that U.S. DOL letter.
(c) Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C. § 5311 in Nonurbanized Areas - If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. § 5311, the Contractor agrees to comply with the terms and conditions of the Special Warranty for the Nonurbanized Area Program agreed to by the U.S. Secretaries of Transportation and Labor, dated May 31, 1979, and the procedures implemented by U.S. DOL or any revision thereto.
(2) The Contractor also agrees to include the any applicable requirements in each subcontract involving transit operations financed in whole or in part with Federal assistance provided by FTA.
28. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
49 CFR Part 26
Background and Applicability
The newest version on the Department of Transportation’s Disadvantaged Business Enterprise (DBE) program became effective July 16, 2003. The rule provides guidance to grantees on the use of overall and contract goals, requirement to include DBE provisions in subcontracts, evaluating DBE participation where specific contract goals have been set, reporting requirements, and replacement of DBE subcontractors. Additionally, the DBE program dictates payment terms and conditions (including limitations on retainage) applicable to all subcontractors regardless of whether they are DBE firms or not.
The DBE program applies to all DOT-assisted contracting activities. A formal clause such as that below must be included in all contracts above the micro-purchase level. The requirements of clause subsection b flow down to subcontracts.
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 Best Practices Procurement Manual – Appendix A.1 Page 47 A substantial change to the payment provisions in this newest version of Part 26 concerns retainage (see section 26.29). Grantee choices concerning retainage should be reflected in the language choices in clause subsection d.
Clause Language
The following clause language is suggested, not mandatory. It incorporates the payment terms and conditions applicable to all subcontractors based in Part 26 as well as those related only to DBE subcontractors. The suggested language allows for the options available to grantees concerning retainage, specific contract goals, and evaluation of DBE subcontracting participation when specific contract goals have been established.
Disadvantaged Business Enterprises
a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The agency’s overall goal for DBE participation is 0.87%. A separate contract goal [of % DBE participation has] [has not] been established for this procurement.
b. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the City of Santa Monica deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)).
c. {If a separate contract goal has been established, use the following} Bidders/offerors are required to document sufficient DBE participation to meet these goals or, alternatively, document adequate good faith efforts to do so, as provided for in 49 CFR 26.53. Award of this contract is conditioned on submission of the following [concurrent with and accompanying sealed bid] [concurrent with and accompanying an initial proposal] [prior to award]:
1. The names and addresses of DBE firms that will participate in this contract;
2. A description of the work each DBE will perform;
3. The dollar amount of the participation of each DBE firm participating;
4. Written documentation of the bidder/offeror’s commitment to use a DBE subcontractor whose participation it submits to meet the contract goal;
5. Written confirmation from the DBE that it is participating in the contract as provided in the prime contractor’s commitment; and
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 Best Practices Procurement Manual – Appendix A.1 Page 48
6. If the contract goal is not met, evidence of good faith efforts to do so. [Bidders][Offerors] must present the information required above [as a matter of responsiveness] [with initial proposals] [prior to contract award] (see 49 CFR 26.53(3)). {If no separate contract goal has been established, use the following} The successful bidder/offeror will be required to report its DBE participation obtained through race-neutral means throughout the period of performance.
d. The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 7 days after the contractor’s receipt of payment for that work from the City of Santa Monica. In addition, [the contractor may not hold retainage from its subcontractors.] [is required to return any retainage payments to those subcontractors within 30 days after the subcontractor's work related to this contract is satisfactorily completed.] [is required to return any retainage payments to those subcontractors within 30 days after incremental acceptance of the subcontractor’s work by the City of Santa Monica and contractor’s receipt of the partial retainage payment related to the subcontractor’s work.]
e. The contractor must promptly notify the City of Santa Monica, whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of the City of Santa Monica.
29. [ RESERVED ]
30. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS FTA Circular 4220.1E
Applicability to Contracts
The incorporation of FTA terms applies to all contracts.
Flow Down
The incorporation of FTA terms has unlimited flow down.
Model Clause/Language
FTA has developed the following incorporation of terms language:
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 Best Practices Procurement Manual – Appendix A.1 Page 49 Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1E, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions.
31. DRUG AND ALCOHOL TESTING
49 U.S.C. §5331
49 CFR Parts 653 and 654
Applicability to Contracts
The Drug and Alcohol testing provisions apply to Operational Service Contracts.
Flow Down Requirements
Anyone who performs a safety-sensitive function for the recipient or subrecipient is required to comply with 49 CFR 653 and 654, with certain exceptions for contracts involving maintenance services. Maintenance contractors for non-urbanized area formula program grantees are not subject to the rules. Also, the rules do not apply to maintenance subcontractors.
Model Clause/Language
Introduction
FTA's drug and alcohol rules, 49 CFR 653 and 654, respectively, are unique among the regulations issued by FTA. First, they require recipients to ensure that any entity performing a safety-sensitive function on the recipient's behalf (usually subrecipients and/or contractors) implement a complex drug and alcohol testing program that complies with Parts 653 and 654.
Second, the rules condition the receipt of certain kinds of FTA funding on the recipient's compliance with the rules; thus, the recipient is not in compliance with the rules unless every entity that performs a safety-sensitive function on the recipient's behalf is in compliance with the rules. Third, the rules do not specify how a recipient ensures that its subrecipients and/or contractors comply with them.
How a recipient does so depends on several factors, including whether the contractor is covered independently by the drug and alcohol rules of another Department of Transportation operating administration, the nature of the relationship that the recipient has with the contractor, and the financial resources available to the recipient to oversee the contractor's drug and alcohol testing program. In short, there are a variety of ways a recipient can ensure that its subrecipients and contractors comply with the rules.
Therefore, FTA has developed three model contract provisions for recipients to use "as is" or to DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 Best Practices Procurement Manual – Appendix A.1 Page 50 modify to fit their particular situations.
Explanation of Model Contract Clauses
Under Option 1, the recipient ensures the contractor's compliance with the rules by requiring the contractor to participate in a drug and alcohol program administered by the recipient. The advantages of doing this are obvious: the recipient maintains total control over its compliance with 49 CFR 653 and 654. The disadvantage is that the recipient, which may not directly employ any safety-sensitive employees, has to implement a complex testing program. Therefore, this may be a practical option only for those recipients which have a testing program for their employees, and can add the contractor's safety-sensitive employees to that program.
Under Option 2, the recipient relies on the contractor to implement a drug and alcohol testing program that complies with 49 CFR 653 and 654, but retains the ability to monitor the contractor's testing program; thus, the recipient has less control over its compliance with the drug and alcohol testing rules than it does under option 1. The advantage of this approach is that it places the responsibility for complying with the rules on the entity that is actually performing the safety-sensitive function. Moreover, it reserves to the recipient the power to ensure that the contractor complies with the program. The disadvantage of Option 2 is that without adequate monitoring of the contractor's program, the recipient may find itself out of compliance with the rules.
Under option 3, the recipient specifies some or all of the specific features of a contractor's drug and alcohol compliance program. Thus, it requires the recipient to decide what it wants to do and how it wants to do it. The advantage of this option is that the recipient has more control over the contractor's drug and alcohol testing program, yet it is not actually administering the testing program. The disadvantage is that the recipient has to specify and understand clearly what it wants to do and why.
Drug and Alcohol Testing
Option 1
The contractor agrees to:
(a) participate in (grantee's or recipient's) drug and alcohol program established in compliance with 49 CFR 653 and 654.
Drug and Alcohol Testing
Option 2
The contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Parts 653 and 654, produce any documentation necessary to establish its compliance with Parts 653 and 654, and permit any authorized representative of the United States Department of Transportation or its operating administrations, the State Oversight Agency of (name of State), or the (insert name of grantee), to inspect the facilities and records associated DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 Best Practices Procurement Manual – Appendix A.1 Page 51 with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 653 and 654 and review the testing process. The contractor agrees further to certify annually its compliance with Parts 653 and 654 before (insert date) and to submit the Management Information System (MIS) reports before (insert date before March 15) to (insert title and address of person responsible for receiving information). To certify compliance the contractor shall use the "Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements," which is published annually in the Federal Register.
Drug and Alcohol Testing
Option 3
The contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Parts 653 and 654, produce any documentation necessary to establish its compliance with Parts 653 and 654, and permit any authorized representative of the United States Department of Transportation or its operating administrations, the State Oversight Agency of (name of State), or the (insert name of grantee), to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 653 and 654 and review the testing process. The contractor agrees further to certify annually its compliance with Parts 653 and 654 before (insert date) and to submit the Management Information System (MIS) reports before (insert date before March 15) to (insert title and address of person responsible for receiving information). To certify compliance the contractor shall use the "Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements," which is published annually in the Federal Register. The Contractor agrees further to [Select a, b, or c] (a) submit before (insert date or upon request) a copy of the Policy Statement developed to implement its drug and alcohol testing program; OR (b) adopt (insert title of the Policy Statement the recipient wishes the contractor to use) as its policy statement as required under 49 CFR 653 and 654; OR (c) submit for review and approval before (insert date or upon request) a copy of its Policy Statement developed to implement its drug and alcohol testing program. In addition, the contractor agrees to: (to be determined by the recipient, but may address areas such as: the selection of the certified laboratory, substance abuse professional, or Medical Review Officer, or the use of a consortium).
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 1 ATTACHMENT G-4
RACE-NEUTRAL DBE INSTRUCTIONS
For
City of Santa Monica
November 2022
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 2 RN-DBE LANGUAGE
RACE-NEUTRAL INSTRUCTIONS
FOR
DOT-ASSISTED CONTRACTS
The CITY OF SANTA MONICA has not established a DBE contract goal for this Agreement. However, the CITY OF SANTA MONICA strongly encourages all bidders/offerors to include DBE subcontractors in their bids/proposals to the greatest extent possible. The successful bidder/offeror that lists DBE firms in its bid/proposal will be required to submit required DBE forms with its bid/proposal and report its DBE participation obtained through race-neutral means throughout the period of performance.
1. DEFINITIONS
a. The term “Disadvantaged Business Enterprise” or DBE means a for-profit small business concern owned and controlled by a socially and economically disadvantaged person(s) as defined in Title 49, Part 26.5, Code of Federal Regulations (CFR). b. The term “Race-Neutral” (RN) means a measure or program that is used to assist all small businesses. For the purposes of the DBE Program, “race-neutral” includes genderneutrality. In addition, race-neutral participation is DBE participation obtained when a DBE goal is not established.
c. The term “Agreement” also means “Contract.”
d. Agency also means the local entity entering into this contract with the Consultant. e. The term “Proposer” shall mean prime contractor or prime consultant submitting a bid or proposal to recipient organization. The terms “Bidder” or “Offeror” may also be used in lieu of “Proposer.”
f. The term “Small Business” or “SB” is as defined in 49 CFR 26.65.
2. AUTHORITY AND RESPONSIBILITY
a. DBE’s and other small businesses are strongly encouraged to participate in the performance of Agreements financed in whole or in part with federal funds (see 49 CFR Part 26, “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”). The Contractor should ensure that DBE’s and other small businesses have the opportunity to participate in the performance of the work that is the subject of this solicitation and should take all necessary and reasonable steps for this assurance. The Proposer shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of subcontracts.
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 3 b. Proposers are encouraged to use services offered by financial institutions owned and controlled by DBE’s.
3. SUBMISSION OF DBE INFORMATION
Only DBE firms certified through the California Unified Certification Program (CUCP) will be counted towards the CITY OF SANTA MONICA’s overall DBE goal; however, all DBE participation shall be collected and reported.
All Proposers are required to submit the following items to the CITY OF SANTA MONICA:
1. The name and addresses of DBE firms that will participate in the contract;
2. A description of the work that each DBE will perform. Each DBE must be certified in the NAICS code applicable to the work the firm will perform on the contract;
3. The dollar amount of the participation of each DBE firm;
4. Written documentation of the proposer’s commitment to use the DBE subcontractor (the signed DBE Commitment Form and/or other documentation); and
5. Written confirmation from each listed DBE firm that it is participating in the contract in the kind of work and amount of work provided in the proposer’s commitment The above information shall be provided at the time noted below:
1. Under sealed bids, as a matter or responsiveness, or with initial proposals under contract negotiation procedures, or
2. No later than 5 days after bid opening as a matter of responsibility.
4. DBE PARTICIPATION GENERAL INFORMATION
It is the Proposer’s responsibility to be fully informed regarding the requirements of 49 CFR, Part 26, and the City of Santa Monica’s DBE program developed pursuant to the regulations. Particular attention is directed to the following:
a. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified through the California Unified Certification Program (CUCP).
b. A certified DBE may participate as a prime contractor, subcontractor, joint venture partner, as a vendor of material or supplies, or as a trucking company. c. A DBE joint venture partner must be responsible for specific contract items of work or clearly defined portions thereof. Responsibility means actually performing, managing, and supervising the work with its own forces. The DBE joint venture partner must share in the capital contribution, control, management, risks and profits of the joint venture commensurate with its ownership interest.
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 4 d. A DBE must perform a commercially useful function pursuant to 49 CFR 26.55, that is, a DBE firm must be responsible for the execution of a distinct element of the work and must carry out its responsibility by actually performing, managing and supervising the work. e. The Proposer shall list only one subcontractor for each portion of work as defined in their bid and all DBE subcontractors should be listed in the bid list of subcontractors. f. A prime contractor who is a certified DBE is eligible to claim all of the work in the agreement toward the DBE participation except that portion of the work to be performed by non-DBE subcontractors.
g. In order to identify certified DBEs, you must only use the California Unified Certification Program Database (CUCP). Certifications from other agencies or organizations will not be accepted.
5. RESOURCES
a. The CUCP database includes the certified DBEs from all certifying agencies participating in the CUCP. If you believe a firm is certified that cannot be located on the database, please contact the Caltrans Office of Certification toll free number 1-866-810-6346 for assistance.
Proposers may call (916) 440-0539 for web or download assistance. b. Access the CUCP database at: https://californiaucp.dbesystem.com/. i. Click on Search for Certified Firms
ii. Searches can be performed by one or more criteria
iii. Follow instructions on the screen
6. MATERIALS OR SUPPLIES PURCHASED FROM DBEs COUNT TOWARDS DBE CREDIT UNDER THE FOLLOWING CONDITIONS:
a. If the materials or supplies are obtained from a DBE manufacturer, 100 percent of the cost of the materials or supplies count towards DBE credit. A DBE manufacturer is a firm that operates, or maintains a factory, or establishment that produces on the premises that materials, supplies, articles, or equipment required under the Agreement and of the general character described by the specifications.
b. If the materials or supplies purchased from a DBE regular dealer, count 60 percent of the cost of the materials or supplies. A DBE regular dealer is a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specification and required under the Agreement are bought, kept in stock, and regularly sold or leased to the public in the usual course of doing business. To be a DBE regular dealer the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. A person may be a DBE regular dealer, in such bulk DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 5 items as petroleum products, steel, cement, gravel, stone or asphalt without owning, operating or maintaining a place of business provided in this section. c. If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers’ own distribution shall be, by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers, brokers, manufacturers’ representatives, or other persons who arrange or expedite transactions are not DBE regular dealers within the meaning of this section.
d. Materials or supplies purchased from a DBE, which is neither a manufacturer nor a regular dealer, will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies required or fees or transportation charges for the delivery of materials or supplies on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services.
7. FOR DBE TRUCKING COMPANIES: CREDIT FOR DBEs WILL COUNT TOWARDS DBE CREDIT UNDER THE FOLLOWING CONDITIONS:
a. The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular agreement, and there cannot be a contrived arrangement for the purpose of meeting DBE credit.
b. The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the agreement.
c. The DBE receives credit for the total value of the transportation services it provides on the agreement using trucks it owns, insures, and operates using drivers it employs. d. The DBE may lease trucks from another DBE firm including an owner-operator who is certified as a DBE. A DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the agreement. e. The DBE may also lease trucks from a non-DBE firm, including an owner-operator. The DBE that leases trucks equipped with drivers from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE leased trucks equipped with drivers not to exceed the value of transportation services on the contract provided by DBE-owned trucks or leased trucks with DBE employee drivers. Additional participation by non-DBE owned trucks equipped with drivers receives credit only for the fee or commission it receives as a result of the lease arrangement.
f. The DBE may lease trucks without drivers from a non-DBE truck leasing company. If the DBE leases trucks from a non-DBE truck leasing company and uses its own employees as drivers, it is entitled to credit for the total value of these hauling services. g. For the purposes of this section, a lease must indicate that the DBE has exclusive use and control over the truck. This does not preclude the leased truck from working for others DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 6 during the term of the lease with the consent of the DBE, as long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE.
8. TRANSIT VEHICLE MANUFACTURERS (TVM):
a. CITY OF SANTA MONICA shall require each Transit Vehicle Manufacturer (TVM), as a condition of being authorized to bid or propose on FTA-assisted transit vehicle procurements, to complete a TVM Certification Form acknowledging that it has complied with the requirements of 49 CFR 26.49 section. CITY OF SANTA MONICA shall maintain the TVM Certification Form on file for DBE Program compliance. CITY OF SANTA MONICA shall check the FTA Civil Rights webpage
(https://www.transit.dot.gov/regulations-and-guidance/civil-rights-ada/eligible-transitvehicle-manufacturers) to validate TVMs that have an FTA approved DBE program and overall goal submissions.
b. CITY OF SANTA MONICA is required to submit within 30 days of making an award, the name of the successful bidder, and the total dollar value of the contract in the manner prescribed in the grant agreement. The CITY OF SANTA MONICA will complete the TVM Report and will submit the report to FTA using the FTA Vehicle Award Form at the following website link: https://www.surveymonkey.com/r/vehicleawardreportsurvey.
9. DBE SUBCONTRACTING FLOW DOWN REQUIREMENTS:
a. CONTRACT ASSURANCE
Each contract you sign with a contractor (and each subcontract the prime contractor signs with a subcontractor) must include the following assurance: The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-responsible. b. PROMPT PAYMENT PROVISIONS
The DBE Program, 49 CFR, Part 26, requires that any delay or postponement of payment over 30 days may take place only for good cause and with CITY OF SANTA MONICA’S prior written approval. The California Business and Professions Code, under Section 7108.5, requires that on public works projects, a prime contractor or subcontractor pay to any DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 7 subcontractor not later than seven (7) days after receipt of each progress payment, unless otherwise agreed to in writing. Any violation of this provision shall subject the violating Contractor or Subcontractor to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. These requirements 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 subcontract performance, or noncompliance by a Subcontractor. Any delay or postponement of payment from the above-referenced timeframes may occur only for good cause following written approval from CITY OF SANTA MONICA. Failure to comply with this provision without prior approval from CITY OF SANTA MONICA will constitute noncompliance, which may result in the application of appropriate administrative sanctions, including, but not limited to, withholding of payment to the Contractor of two percent (2%) of the invoice amount due per month, for every month that full payment is not made in accordance with these prompt payment requirements.
Prompt Progress Payments to Subcontractors
Contractor will include a contract clause that will require Subcontractors to pay each lower tiered Subcontractor participating on the Project for satisfactory performance of its contract no later than 7 days from the receipt of each payment the Subcontractor receives from Contractor. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of CITY OF SANTA MONICA.
This clause applies to both DBE and non-DBE Subcontractors.
You must ensure prompt and full payment of retainage from the prime contractor to the subcontractor no later than 30 days after the subcontractor's work is satisfactorily completed.
Prompt Payment of Withheld Funds to Subcontractors
The CITY OF SANTA MONICA 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. c. TERMINATION/SUBSTITUTION
The contractor must promptly notify the CITY OF SANTA MONICA, whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 8 work and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor without prior written consent of the CITY OF SANTA MONICA. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of the CITY OF SANTA MONICA. The contractor must give the DBE five days to respond to the contractor’s written notice and advise the CITY OF SANTA MONICA and the contractor of the reasons, if any, why it objects to the proposed termination of its subcontract and why the CITY OF SANTA MONICA should not approve the contractor’s action. If required in a particular case as a matter of public necessity (e.g., safety), the CITY OF SANTA MONICA may provide a respond period shorter than five days. The CITY OF SANTA MONICA shall review the termination/substitution request based on the reasons provided in 49 CFR 26.53. The contractor will include a contract clause stating: The contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the contractor obtains the written consent of the CITY OF SANTA MONICA and that, unless the written consent of the CITY OF SANTA MONICA is provided, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE. d. FAILURE TO COMPLY
Failure of the Contractor to comply with any DBE requirement of 49 CFR Part 26 as amended, may subject Contractor to formal enforcement action or appropriate sanctions by CITY OF SANTA MONICA, such as the termination of the contract, progressive payment withholding until deficiencies are remedied, and any additional enforcement allowed by the contract.
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 9 INSTRUCTIONS - BIDDER'S LIST OF SUBCONTRACTORS
(DBE AND NON-DBE)
(CONSTRUCTION CONTRACTS)
ALL PROPOSERS:
The U.S. Department of Transportation (DOT) requires CITY OF SANTA MONICA to maintain a “Bidders List” containing information about all firms (DBE and non-DBE) that bid, propose or quote on CITY OF SANTA MONICA’s DOT-assisted contracts, in accordance with 49 CFR Part 26.11, for use in the City of Santa Monica’s overall triennial DBE goal-setting process. Therefore, the Proposer shall provide the requested information for every firm who submitted a quote, bid, or proposal, including the primary Proposer, whether successful or unsuccessful in their attempt to obtain a contract:
a. Firm name;
b. Firm address;
c. Phone number
d. A description of the work that each DBE will perform; e. Range of annual gross receipts for the last year;
It is the Proposers responsibility to verify that the DBE(s) falls into one of the following six groups in order to count towards DBE credit: 1) Black American; 2) Asian-Pacific American; 3) Native American; 4) Hispanic American, 5) Subcontinent Asian American, and 6) Women.
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 12 INSTRUCTIONS - LOCAL AGENCY PROPOSER DBE COMMITMENT
ALL PROPOSERS:
PLEASE NOTE: It is the proposer’s responsibility to verify that DBE(s) fall into one of the following groups in order to count towards Race-Neutral (RN) DBE credit: 1) Black Americans; 2) Asian-Pacific Americans; 3) Native Americans; 4) Hispanic Americans, 5) Subcontinent Asian Americans, and 6) Women. This information must be submitted with your proposal even if no DBE commitments are being proposed.
A “DBE” is a firm meeting the definition of a DBE as specified in 49 CFR and is one of the following groups: Black Americans, Native Americans, Asian-Pacific Americans, Hispanic American, Subcontinent Asian American, or Women.
The form requires specific information regarding the consultant contract: Local Agency, Location, Project Description, Proposal Date and Proposer’s Name.
The form has a column for the Work Item Number and Description or Services to be subcontracted to DBEs (or performed if the proposer is a DBE). The DBE prime contractors shall indicate all work to be performed by DBEs including work to be performed by its own forces, if a DBE. The DBE shall provide a certification number to the Consultant and notify the Consultant in writing with the date of decertification if their status should change during the course of the contract. Enter DBE prime consultant and subconsultant certification numbers. The form has a column for the Names of certified DBEs to perform the work (must be certified on the date proposals are due and include DBE address and phone number).
There is a column for the percent participation of each DBE. Enter the Total Claimed DBE Participation percentage of items of work submitted with proposal pursuant to the Special Provisions. (If 100% of item is not to be performed or furnished by the DBE, describe exact portion of time to be performed or furnished by the DBE.) The DBE Commitment Form must be signed and dated by the consultant submitting the proposal. Also list a phone number in the space provided and print the name of the person to contact.
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 14 INSTRUCTIONS – SUMMARY OF MONTHLY DBE PAYMENTS
INFORMATION CITY OF SANTA MONICA
SUCCESSFUL PROPOSER:
The City of Santa Monica undertakes ongoing monitoring of prime payments to subcontractors over the course of any covered contract. Such monitoring activities will be accomplished through the following method:
a. Monthly reporting of prime contractor and subcontractor payments, review by the City of Santa Monica of compliance with prompt payment requirements, and follow up with prime contractors and subcontractors for explanations when prompt payment requirements are not met.
This form requires specific information regarding the disadvantaged business enterprise subcontractors paid on this construction contract.
The form must be completed for all DBEs for each monthly period. The form requires that the Reporting Period (month/year) be included. A Report Number should also be completed.
This field should include a sequential number with the first form having number “1”. The date prepared should also be included.
IMPORTANT: Identify all DBE firms that were paid during the reporting period for the project--including all DBEs listed on the DBE Commitment form, regardless of tier. Names of the First Tier DBE Subcontractors and their respective item(s) of work listed should be consistent, where applicable, with the names and items of work in the "List of Subcontractors" submitted with your bid.
There is a column for the “Dollars Paid This Month”. Enter the Total amount paid for each DBE firm for the reporting period. Also include the total amount paid to date, which shall include the amount paid for the current reporting period.
Include the Schedule Activity ID for construction contracts. Include a brief description for the type of work performed. The original dollar amount committed to the DBE firm should be included in the appropriate Column and any increase or decrease in the subcontract amount resulting from a change order shall be included in the “Dollar +/- resulting from Change order Activity” column.
CITY OF SANTA MONICA Form must be signed and dated by the prime contractor’s representative that is responsible for reporting DBE compliance matters. The form must be submitted no later than the 15th day of each month.
b. Use of an automated system that requires real time entry of payments to, and receipts by prime contractors and DBE subcontractors and regularly monitoring that system.
As described under the section above, when the City of Santa Monica utilizes an automated system to monitor payments, it will also use this system as a mechanism to ensure prompt payment. The following clause will be included in City of Santa Monica contracts when an automated system is used to monitor and ensure prompt payment to subcontractors:
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 15 Contractor shall report DBE subcontractor payment details to the City of Santa Monica using the web-based system by the 15th of each month. The web-based system allows contractors to manage their own subcontract information, maintain accurate contract information, and report subcontractor award and payment details online. E-copies of the Vendor User Guide are available to all vendors upon request. The web-based award and payment system is mandatory for Contractor to use unless City of Santa Monica provides written instructs otherwise. A Contractor account will be created after award, which will allow the Contractor to enter award and payment data into the web-based system. After award, Contractor will receive instructions on how to set up their account and enter required subcontractor data. Contractor is responsible for notifying subcontractors of the requirement to confirm subcontractor payments via the web-based system and shall include this requirement in any subcontracts under this contract. Contractor shall ensure subcontractors confirm payments on a timely basis.
DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 16 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 17 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2 DocuSign Envelope ID: 334567A8-59A9-4A32-8A7A-7117809E16D2