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02 February 2, 2012 CommissionTIME/DATE: LOCATION: Riverside County Tronsportotion Commission MEETING AGENDA 4:00p.m. I Thursday, February 2, 2012 SANTA ROSA B AND C EMBASSY SUITES LA QUINTA 50-777 Santa Rosa Plaza, La Quinta, CA &-COMMISSIONERS ~ Chair -John J. Benoit First Vice Chair -Karen Spiegel Second Vice Chair -Marion Ashley Bob Buster, County of Riverside John F. Tavaglione, County of Riverside Jeff Stone, County of Riverside John J. Benoit, County of Riverside Marion Ashley, County of Riverside Bob Botts I Don Robinson, City of Banning Roger Berg I Jeff Fox, City of Beaumont Joseph DeConinck I To Be Appointed, City of Blythe Ella Zanowic I Jeff Hewitt, City of Calimesa Mary Craton I Barry Talbot, City of Canyon Lake Greg Pettis I Kathleen DeRosa, City of Cathedral City Steven Hernandez I Eduardo Garcia, City of Coachella Karen Spiegel I Steve Nolan, City of Corona Scott Matas I Russell Betts, City of Desert Hot Springs Adam Rush I Ike Bootsma, City of Eastvale Larry Smith I Robert Youssef, City of Hemet Douglas Hanson I Patrick Mullany, City of Indian Wells Glenn Miller I Michael Wilson, City of Indio Frank Johnston I Micheal Goodland, City of Jurupa Valley Terry Henderson I Don Adolph, City of La Quinta Bob Magee I Melissa Melendez, City of Lake Elsinore Darcy Kuenzi I Wallace Edgerton, City of Menifee Marcelo Co I Richard Stewart, City of Moreno Valley Rick Gibbs I Kelly Bennett, City of Murrieta Berwin Hanna I Kathy Azevedo, City of Norco Jan Harnik I William Kroonen, City of Palm Desert Ginny Foat I Steve Pougnet, City of Palm Springs Daryl Busch I AI Landers, City of Perris Scott Hines I Gordon Moller, City of Rancho Mirage Steve Adams I Andy Melendrez, City of Riverside Andrew Kotyuk I Scott Miller, City of San Jacinto Ron Roberts I Jeff Comerchero, City of Temecula Ben Benoit I Timothy Walker, City of Wildomar Raymond Wolfe, Governor's Appointee RECORDS Comments are welcomed by the Commission. If you wish to provide comments to the Commission, please complete and submit a Speaker Card to the Clerk of the Board. Alexandra Rackerby From: Sent: To: Subject: Alexandra Rackerby Thursday, January 26, 2012 6:02PM Alexandra Rackerby RCTC February Commission Meeting Agenda -lpad users Good Afternoon Commissioners, The Commission agenda for Thursday, February 2, 2012 is posted on our website at http:/ /www.rctc.org/downloads/current/agenda ipad.pdf Let me know if you have any questions or concerns. Thank you. Respectfully, Allie Rackerby Riverside County Transportation Commission (951) 787-7141 1 Alexandra Rackerby From: Sent: To: Subject: Alexandra Rackerby Monday, January 30, 2012 8:50AM Alexandra Rackerby RCTC February Commission Agenda Good Morning Commission Alternates, Attached below is the link to the February 2, 2012 Commission Meeting Agenda. Please copy the link and paste it into a web page http:/ /www.rctc.org/downloads/current/agenda 2012 02.pdf Thank you. Respectfully, Allie Rackerby Riverside County Transportation Commission (951) 787-7141 1 RIVERSIDE COUNTY TRANSPORTATION COMMISSION www. rete. org AGENDA* *Actions may be taken on any item listed on the agenda 4:00p.m. Thursday, February 2, 20 12 EMBASSY SUITES LA QUINTA 50-7 7 7 Santa Rosa Plaza La Quinta, CA In compliance with the Brown Act and Government Code Section 54957.5, agenda materials distributed 72 hours prior to the meeting, which are public records relating to open session agenda items, will be available for inspection by members of the public prior to the meeting at the Commission office, 4080 Lemon Street, Third Floor, Riverside, CA, and on the Commission's website, www.rctc.org. In compliance with the Americans with Disabilities Act and Government Code Section 54954.2, if special assistance is needed to participate in a Commission meeting, please contact the Clerk of the Board at (951) 7 8 7-7141. Notification of at least 48 hours prior to meeting time will assist staff in assuring that reasonable arrangements can be made to provide accessibility at the meeting. 1 . CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. PUBLIC COMMENTS -Each individual speaker is limited to speak three (3) continuous minutes or less. The Commission may, either at the direction of the Chair or by majority vote of the Commission, waive this three minute time limitation. Depending on the number of items on the Agenda and the number of speakers, the Chair may, at his/her discretion, reduce the time of each speaker to two (2) continuous minutes. In addition, the maximum time for public comment for any individual item or topic is thirty (30) minutes. Also, the Commission may terminate public comments if such comments become repetitious. Speakers may not yield their time to others without the consent of the Chair. Any written documents to be distributed or presented to the Commission shall be submitted to the Clerk of the Board. This policy applies to Public Comments and comments on Agenda Items. Under the Brown Act, the Commission should not take action on or discuss matters raised during public comment portion of the agenda that are not listed on the agenda. Commission members may refer such matters to staff for factual information or to be placed on the subsequent agenda for consideration. Riverside County Transportation Commission Agenda February 2, 2012 Page 2 5. APPROVAL OF MINUTES -December 14, 2011 and January 11, 2012 6. ADDITIONS I REVISIONS -The Commission may add an item to the Agenda after making a finding that there is a need to take immediate action on the item and that the item came to the attention of the Commission subsequent to the posting of the agenda. An action adding an item to the agenda requires 2/3 vote of the Commission. If there are less than 2!3 of the Commission members present, adding an item to the agenda requires a unanimous vote. Added items will be placed for discussion at the end of the agenda. 7. CONSENT CALENDAR -All matters on the Consent Calendar will be approved in a single motion unless a Commissioner(s) requests separate action on specific item(s). Items pulled from the Consent Calendar will be placed for discussion at the end of the agenda. 7 A. QUARTERLY INVESTMENT REPORT Page 1 Overview This item is for the Commission to receive and file the Quarterly Investment Report for the quarter ended December 31 I 2011 . 7B. SINGLE SIGNATURE AUTHORITY REPORT Page 23 Overview This item is for the Commission to receive and file the Single Signature Authority report for the second quarter ended December 31 I 2011. 7C. FEDERAL HIGHWAY ADMINISTRATION DISADVANTAGED BUSINESS ENTERPRISE PROGRAM AND PROPOSED OVERALL PROJECT GOAL Page 25 Overview This item is for the Commission to: 1) Adopt Resolution No. 12-005 1 "Resolution of the Riverside County Transportation Commission Adopting Its Disadvantaged Business Enterprise Program and Overall Disadvantaged Business Enterprise Project Goal (49 CFR Part 26) As It Applies to Funding Received Directly from the Federal Highway Administration"; ---------------------------------- Riverside County Transportation Commission Agenda February 2, 2012 Page 3 2) Adopt the Commission's Disadvantaged Business Enterprise (DBE) Program for the State Route 91 Corridor Improvement Project (SR-91 CIP), a Federal Highway Administration (FHWA) assisted contract. The DBE program includes a proposed 2.9% overall DBE project goal for the SR-91 Cl P. The goal is wholly race-neutral and will be finalized following the required 45-day public comment period, which concludes on or about March 20, 2012; 3) Authorize the Executive Director to execute the Commission's DBE Program and Policy Statement on behalf of the Commission for submission to FHWA; 4) Post the proposed overall DBE project goal to allow for public participation as required by 49 CFR, Part 26, make the DBE program document available for review to the public for 30 days, and receive comments for 45 days; and 5) Submit the DBE program document and overall DBE project goal methodology to the FHWA for approval. 7D. FEDERAl TRANSIT ADMINISTRATION DISADVANTAGED BUSINESS ENTERPRISE PROGRAM AND PROPOSED OVERAll PROJECT GOAl Page 150 Overview This item is for the Commission to: 1) Adopt Resolution No. 12-004, #Resolution of the Riverside County Transportation Commission Adopting Its Disadvantaged Business Enterprise Program and Overall Disadvantaged Business Enterprise Project Goal (49 CFR Part 26) As It Applies to Funding Received Directly from the Federal Transit Administration"; 2) Adopt the Commission's Disadvantaged Business Enterprise (DBE) Program for the San Jacinto Branch Line Commuter Rail (Perris Valley Line) project, a Federal Transit Administration (FTA) assisted contract. The DBE Program includes a proposed 3.8% overall DBE project goal for the Perris Valley Line project. The goal is wholly race-neutral and will be finalized following the required 45-day public comment period, which concludes on or about March 20, 2012; 3) Authorize the Executive Director to execute the DBE Program and Policy Statement on behalf of the Commission for submission to FTA; 4) Post the proposed overall DBE project goal to allow for public participation as required by Title 49 CFR, Part 26, make the DBE program document available for review to the public for 30 days, and receive comments for 45 days; and 5) Submit the proposed DBE program document and overall DBE project goal to the FT A for approval. Riverside County Transportation Commission Agenda February 2, 2012 Page 4 7E. RIVERSIDE COUNTY 2013 FEDERAL TRANSPORTATION IMPROVEMENT PROGRAM FINANCIAL RESOLUTION Page 270 Overview This item is for the Commission to: 1) Adopt Resolution No. 12-006, "Resolution Certifying Riverside County has Resources to Fund Projects in Federal Fiscal Years 2012/13 Through 20 17/18 Transportation Improvement Program and Affirming Commitment to Implement All Projects in the Program"; and 2) Forward to the Southern California Association of Governments (SCAG) for inclusion in the 201 3 Federal Transportation Improvement Program (FTIP). 7F. MEMORANDUM OF UNDERSTANDING WITH THE SCRRA FOR SECURITY GUARD SERVICES AT THE DOWNTOWN RIVERSIDE STATION AND LAYOVER FACILITY Page 274 Overview This item is for the Commission to: 1) Approve Memorandum of Understanding (MOU) No. 12-25-043-00 with the Southern California Regional Rail Authority (SCRRA) for security guard services at the Downtown Riverside Station and layover facility; and 2) Authorize the Chair, pursuant to legal counsel review, to execute the MOU on behalf of the Commission. 7G. RIDESHARE SOFTWARE PROCUREMENT Page 283 Overview This item is for the Commission to: 1) Approve Agreement No. 12-41-047-00 with Base Technologies, LLC (BaseTech) for the provision and hosting of new ridematching software in an amount not to exceed $216,000; and 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. Riverside County Transportation Commission Agenda February 2, 2012 Page 5 8. AGREEMENT WITH PARSONS TRANSPORTATION GROUP TO PROVIDE ENGINEERING SERVICES FOR THE PREPARATION OF PLANS, SPECIFICATIONS, COST ESTIMATES, AND RELATED SERVICES FOR IMPROVEMENTS TO STATE ROUTE 91 IN THE EASTBOUND DIRECTION AND TO THE STATE ROUTES 71/91 INTERCHANGE Page 305 Overview This item is for the Commission to: 1) Award Agreement No. 11-31-110-00 to Parsons Transportation Group, Inc. (Parsons) to provide engineering services for the preparation of plans, specifications, and cost estimates (PS&E) and related services for improvements to State Route 91 in the eastbound direction and to the 71 /91 interchange, from approximately one-quarter mile west of Green River Road to Serfas Club Drive in the city of Corona based on the attached project scope, schedule, and cost in the amount of $8,136,031, plus a contingency amount of $804,537, for a total amount not to exceed $8,940,568, contingent upon obligation of federal funds; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Authorize the Executive Director to approve contingency work up to the total not to exceed amount as may be required for the project. 9. INTERSTATE 215/BLAINE STREET PROJECT -LANE EXTENSION FROM BLAINE STREET TO 0.3 MILES PAST MARTIN LUTHER KING BOULEVARD Page 417 Overview This item is for the Commission to: 1) Agree to sponsor the construction phase of the Interstate 215/Biaine Street project to extend a lane on southbound 60/21 5 from Blaine Street to Martin Luther King Boulevard; 2) Approve the programming of $2 million of federal Surface Transportation Program (STP) funding in federal fiscal year 2011/12 for construction capital; and 3) Approve amending the Federal Transportation Improvement Program to program STP funds. Riverside County Transportation Commission Agenda February 2, 2012 Page 6 10. ITEM(S) PULLED FROM CONSENT CALENDAR AGENDA 11. COMMISSIONERS I EXECUTIVE DIRECTOR REPORT Overview This item provides the opportunity for the Commissioners and the Executive Director to report on attended meetings/conferences and any other items related to Commission activities. 12. ADJOURNMENT The next Commission meeting is scheduled to be held at 9:30 a.m., Wednesday, March 14, 2012, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. RIVERSIDE COUNTY TRANSPORTATION COMMISSION ROLL CALL FEBRUARY 2, 2012 ':: -~:~:-::: . : ' " ' .·· ,.'..'1$~::'' ·,.' ' Countv<9l Rl~~rS,ltle, DistrictJ , County of Riverside, District II Coumty of. Riversl~e, District Ill County of Riverside, District IV 09'1li~tv'ot Rivers:JI,, Oistricfv City of Banning Citv q#~euaumh,.t.··· City of Blythe Ci~v:;.ejift~a l.iitl~sc(;m• City of Canyon Lake City of:::Q~thY~raiCity· City of Coachella City':61'.'CPrQQD. City of Desert Hot Springs Ci~y,of¥'East9a,.e< · City of Hemet City of I.~Hia;QNWeU:s City of Indio City< of JIJ,:u~:~~Vallev City of La Quinta City of La&~ EJ$inot~f i~., ~ ,, .. City of Menifee City ~t Morend\taftiAi~1~·:,'·l'm:, City of Murrieta Qity qf. Nofi~o City of Palm Desert tity ~t.Palfiispfi'hgs~¥< · City of Perris City ~1t1ERari(;!ho Mirag~ City of Riverside ..... City ()f San Jacinto City of Temecula City ~f'~WildgiJlat<£:c Governor's Appointee, Caltrans District 8 -------------------- RIVERSIDE COUNTY TRANSPORTATION COMMISSION COMMISSIONER SIGN-IN SHEET FEBRUARY 2, 2012 NAME AGENCY E MAIL ADDRESS AGENDA ITEM 5 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION MINUTES Wednesday, December 14, 2011 1. CALL TO ORDER The Riverside County Transportation Commission was called to order by Chair Greg Pettis at 9:33 a.m. in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, Riverside, California, 92501. 2. PLEDGE OF ALLEGIANCE At this time, Commissioner Douglas Hanson led the Commission in a flag salute. 3. ROLL CALL 4. Commissioners/ Alternates Present Steve Adams Scott Hines Marion Ashley Frank Johnston Ben Benoit Andrew Kotyuk John J. Benoit Darcy Kuenzi Roger Berg Bob Magee Bob Botts Scott Matas Daryl Busch Glenn Miller Bob Buster Greg Pettis Marcelo Co Ron Roberts Mary Craton Adam Rush Rick Gibbs Larry Smith Berwin Hanna Karen Spiegel Jan Harnik Jeff Stone Douglas Hanson Ray Wolfe Terry Henderson Ella Zanowic Steven Hernandez PUBLIC COMMENTS Commissioners Absent Joseph DeConinck Steve Pougnet John F. Tavaglione There were no requests to speak from the public. Riverside County Transportation Commission Minutes December 14, 2011 Page 2 5. APPROVAL OF MINUTES -NOVEMBER 9, 2011 M/S/C (Stone/Adams) to approve the minutes of November 9, 2011 meeting as submitted. 6. ADDITIONS/REVISIONS Per staff's request, the Closed Session Agenda Item, "Conference with Real Property Negotiators, Pursuant to Government Code Section 54956. 8" was pulled from the agenda. Commissioner Bob Buster referred to Agenda Item 7B, "Fiscal Year 2010/11 Commission Audit Results" and commented that the Audit Ad Hoc Committee has met with several sets of Commission auditors to review some of the key aspects of the financial and active operational life of the Commission. He stated it is important for the Commissioners to understand these independent analyses. He discussed the right of way acquisition process, which the auditors found no reportable issues. He commended Min Saysay, Right of Way Manager, for his efforts. Commissioner Andrew Kotyuk requested Agenda Item 7B be pulled for further discussion. 7. CONSENT CALENDAR M/S/C (Adams/Stone) to approve the following Consent Calendar items: 7A. PROPOSED 2012 COMMISSION/COMMITTEE MEETINGS AND UNMET TRANSIT NEEDS PUBLIC HEARING SCHEDULE Adopt its 2012 Commission/Committee Meetings and Unmet Transit Needs Public Hearing Schedule. 7C. QUARTERLY FINANCIAL STATEMENTS Receive and file the Quarterly Financial Statements for the period ended September 30, 2011. 7D. QUARTERLY SALES TAX ANALYSIS Receive and file the sales tax analysis for Quarter 2 (Q2) 2011. Riverside County Transportation Commission Minutes December 14, 2011 Page 3 7E. 2011 CONGESTION MANAGEMENT PROGRAM Approve the 2011 Congestion Management Program (CMP) Update. 7F. AMENDMENT WITH STV INCORPORATED TO PROVIDE ADDITIONAL ADVANCED PRELIMINARY ENGINEERING AND ENVIRONMENTAL SERVICES, FINAL DESIGN, AND PROCUREMENT AND CONSTRUCTION SUPPORT FOR THE PERRIS VALLEY LINE PROJECT 1) Approve Agreement No. 07-33-123-07, Amendment No. 7 to Agreement 07-33-123-00, with STV Incorporated (STV) for additional advanced preliminary engineering (APE), final design, bid support, design support during construction, and additional support in the development of the federal supplemental environmental assessment (SEA) and state environmental impact report (EIR) for the Perris Valley Line (PVL) in the amount of $5,510,668, plus a contingency amount of $1.6 million, for a total amount not to exceed $7, 110,668; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Authorize the Executive Director or designee, pursuant to legal counsel review, to approve the use of the contingency as may be required for the project. 7G. AGREEMENT FOR REIMBURSEMENT OF CALL ANSWERING CENTER SERVICES 1) Approve Agreement No. 12-45-033-00 (C-12139) with San Bernardino Service Authority for Freeway Emergencies to provide for the reimbursement of call answering center services related to the operation of call boxes in an amount not to exceed $190,000; and 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. 7H. LETTER OF INTEREST IMPROVEMENT PROJECT STATE ROUTE 91 CORRIDOR 1) Direct staff to prepare a Transportation Infrastructure Finance and Innovation Act (TIFIA) letter of interest (LOI) for credit assistance to the U.S. Department of Transportation (U.S. DOT) for the State Route 91 Corridor Improvement Project (SR-91 CIP); and 2) Authorize the Executive Director to submit the TIFIA LOI. Riverside County Transportation Commission Minutes December 14, 2011 Page 4 71. MOVING AHEAD FOR PROGRESS IN THE 21sT CENTURY Receive and file an update on Moving Ahead for Progress in the 21st Century (MAP-21 ). 8. LOS ANGELES-SAN DIEGO-SAN LUIS OBISPO RAIL CORRIDOR AGENCY UPDATE Sheldon Peterson, Rail Manager, provided an update for the Commission's effort to be engaged in the Los Angeles-San Diego-San Luis Obispo Rail (LOSSAN) Rail Corridor Agency, highlighting the following areas: • Description of the LOSSAN Corridor; • State support for intercity service; • The Commission's request to seek voting membership; • Goal of local authority for Pacific Surfliner service; • Benefits of membership in the LOSSAN Rail Corridor Agency; and • Governance next steps. At this time, Commissioner Bob Magee arrived at the meeting. Anne Mayer, Executive Director, discussed the importance of the LOSSAN Corridor for existing Metrolink and Surfliner services. The Commission is working with Amtrak and Metrolink to re-route the Sunset Limited to add stops in Riverside and Fullerton to increase ridership. She then discussed the complexities and diverse interests involved in this issue. She stated Orange County Transportation Authority (OCTA) has developed a governance structure that appears to address and protects all the agencies' interests. Staff is requesting Commission direction regarding the legislation because if legislation goes forward without the Commission as a voting member, the Commission needs to make its opposition known. Commissioner Buster expressed the importance of the Commission being an ex-officio member, at a minimum, with voting rights in the near future. He then asked about the next steps. Anne Mayer replied if this group goes forward with a vision that there will be a coordinated rail system in Southern California, the next steps are: 1) define the system; 2) define the service plans; 3) and identify the capital improvements that need to be made to ensure implementation of this system. Riverside County Transportation Commission Minutes December 14, 2011 Page 5 Sheldon Peterson stated one of the components staff is working on in the short term is to propose additional service on the 91 line and coordinate with Burlington Northern Santa Fe Railway, LOSSAN Rail Corridor Agency, and Metrolink to ensure support. Commissioner Mary Craton expressed her full support of the staff recommendation. She noted that along with OCTA, the Southern California Association of Governments (SCAG) supports the Commission's voting membership to the LOS SAN Rail Corridor Agency. Anne Mayer expressed appreciation to Sheldon Peterson for all of his efforts representing the Commission on all rail matters. He is currently working in collaboration with Coachella Valley Association of Governments (CVAG) staff to ensure the Sunset Daily service is included in the state rail plan. M/S/C (Henderson/Ashley) to: 1 ) Authorize the Chair to execute the Bylaws and the Joint Exercise of Powers Agreement that allow the Commission to be included as an ex-officio member in the Los Angeles-San Diego- San Luis Obispo (LOSSAN) Rail Corridor Agency; 2) Receive an update on the current LOSSAN Strategic Efforts and Governance proposal; and 3) Take a oppose position of the proposed governance approach with the condition that voting rights for the Commission will be required for both local and legislative support of the effort. 9. WESTERN RIVERSIDE COUNTY REGIONAL CONSERVATION AUTHORITY FUNDING REQUEST Cathy Bechtel, Project Development Director, explained staff is requesting the Commission's consideration of the funding request from Western Riverside County Regional Conservation Authority (RCA), highlighting the following areas: • Multiple Species Habitat Conservation Plan (MSHCP); • RCA map depicting the additional reserve lands acquired through August 1, 2011; • MSHCP obligation and status; • RCA funding request; and • Committee and staff recommendation. Riverside County Transportation Commission Minutes December 14, 2011 Page 6 Commissioner Kotyuk clarified the direction that came from the Western Riverside County Programs and Projects Committee (WRC Committee) was it agreed, at RCA's request, to be the creditor securing a loan that RCA is taking for a land purchase agreement. He explained RCA needs an eight- year creditor to secure payments of $3 million per year. Commissioner Kotyuk stated RCA is pursuing a federal loan. Additionally, the WRC Committee discussed in two years, instead of the Commission being the primary creditor and going forward with $3 million per year, if the federal loan guarantee is received, the Commission will become the secondary creditor. He expressed his belief that the WRC Committee's motion was to go forward with the funding for the full period, and in two years, reagendize this allocation to see if RCA received federal funding. If RCA received federal funding, the Commission would discontinue providing the additional funding to RCA until required by the MSHCP. Cathy Bechtel referred to staff's recommendation to "Work with RCA to assist in fulfilling the MSHCP funding obligations if a federal loan guarantee program is not in place in two years" and at that time the Commission will assess assisting RCA if the federal loan guarantee does not come to fruition. Anne Mayer stated staff reviewed the recording of the meeting for clarification of the motion and believes it was captured correctly. She deferred to the WRC Committee members who made the motion and took action. She explained this is the starting point for discussion as the Commission determines the action. Commissioner Bob Botts stated in all deference to Commissioner Kotyuk, he recalls there was discussion of either no funding or a funding commitment of two years. He stated he voted against the motion. He expressed the Commission does not want to jeopardize the master take permit (permit) that Western Riverside County operates under and although staff could not be specific about the projects that would be impacted, the bottom line is $24 million to RCA would be $24 million less to highway projects. He expressed his recollection that in 2009 there was a crisis and the Commission gave RCA $70 million but the policy was for the Commission to not allocate any additional funds to RCA until 2019. Commissioner Botts stated the WRC Committee motion was made clear that it was for two years because RCA Chairman Jeff Stone and Charles Landry, RCA Executive Director, stated there could be relief coming from the federal government. He explained the majority of the WRC Committee agreed to fund $3 million per year for the next two years and evaluate the federal situation in two years. Commissioner Botts stated he supports this motion and believes RCA agreed to this modified commitment for two years instead of eight years. Riverside County Transportation Commission Minutes December 14, 2011 Page 7 Commissioner Darcy Kuenzi stated as the Chair of the WRC Committee she concurred with Commissioner Botts' recollection of the motion. She explained the concern and discussion at the WRC Committee was not to jeopardize the Commission's plans for this funding and still be supportive of RCA. She concurred the WRC Committee's motion was to approve two years of funding with a cap of $6 million. She stated she subsequently met with Charles Landry to clarify the motion and recommendation of the WRC Committee, which he agreed was acceptable and seemed to meet the needs of RCA. Commissioner Karen Spiegel concurred with Commissioners Botts' and Kuenzi's recollection of the motion at the WRC Committee meeting. In response to Commissioner Roger Berg's question if the staff recommendation will meet RCA's funding needs, Commissioner Stone stated he recalled the final motion that the Commission would be there for the first two years and in the absence of a federal loan guarantee, or in the absence of the economy recovering, that the Commission would continue its eight- year commitment or $24 million. He suggested listening to the recording of the WRC Committee meeting to verify this motion. He discussed RCA's current position and the importance of the $24 million, the MSHCP, and the permit. He expressed his belief that the Commission should fulfill its obligation to RCA to ensure a permit for all projects in all respective jurisdictions. He discussed the critical property located in Core II to be purchased by RCA. Commissioner Stone requested the Commission to consider the full eight-year commitment with the caveat that when and if RCA receives a federal loan guarantee or if the development industry returns to 2005 levels, then RCA will postpone the Commission's obligation after two years. Commissioner Rush expressed that staff's second and third recommendations capture the essence of the WRC Committee discussion. He stated his understanding from the discussion to reduce the length of the commitment to reduce the impact on infrastructure. He stated that Anne Mayer mentioned at the WRC Committee meeting there will be more of an impact on the regional arterials projects rather than the larger projects. He concurred with Commissioners Botts' and Kuenzi's comments to maintain the length of the commitment at two years. Commissioner Kotyuk apologized for the confusion and lengthy discussion. He expressed he should have been clearer in his motion made at the WRC Committee meeting. He then discussed the basis for his intended motion. Riverside County Transportation Commission Minutes December 14, 2011 Page 8 Commissioner Rick Gibbs discussed the importance of maintaining the permit and provided project examples. Charles Landry expressed appreciation for the Commission's consideration of RCA's funding request. He discussed RCA's efforts to obtain a federal loan guarantee and its importance. He expressed RCA understands the Commission must consider its own financial constraints. He explained the Commission has obligated $1 29 million of the $153 million required for its commitment to mitigation for its projects. He expressed there has been a close relationship with the Commission and RCA will continue to push hard to ensure the Commission's projects are expedited. Mr. Landry explained the MSHCP provides coverage under the Endangered Species Act for all Commission and Caltrans projects, as well as the coverage for all general plan roadways for the cities and the county within Western Riverside County. He stated the primary purpose of the MSHCP is to expedite the construction of transportation infrastructure. In addition, the MSHCP expedites other infrastructure and provides assistance for coverage of development projects, which directly provides jobs. Commissioner Terry Henderson stated that despite Commissioner Stone's plea, she is still challenged in doing anything other than follow the staff recommendation. She expressed concern that there are different recollections regarding an argument for the eight-year commitment and the Western County does not seem to have one voice. Commissioner Henderson stated at this point knowing that staff's primary goal is the direction of the Commission, she is prepared to follow that direction and approve the staff recommendation as a clear argument has not be made otherwise. Commissioner Bob Magee expressed when the former Supervisor Tom Mullen was the champion for the MSHCP, it was made very clear that the primary goal was to build infrastructure. He expressed that while the MSHCP and RCA may have functioned well for other jurisdictions, it has failed in his community because promises have not been kept. He stated three people have died since the city of Lake Elsinore agreed to join the MSHCP and yet he cannot get a safe intersection at SR-74. The Commission has fulfilled its commitment for $1 29 million and the other side of that commitment was no more funds until 2019, committing the remaining funds to build infrastructure. Commissioner Magee stated with all due respect to Commissioner Stone, roads need to be built. Commissioner Magee expressed his need to see more performance from RCA. Riverside County Transportation Commission Minutes December 14, 2011 Page 9 Commissioner Berg concurred with Commissioner Stone's comments and request as RCA needs a guarantee to move ahead with the acquisition of this critical property. · He discussed the importance of maintaining the permit. At this time, Commissioners Hanson and Miller left the meeting. Commissioner Stone expressed appreciation for Commissioners Berg's and Magee's comments. He explained the critical property is an approximately 1 ,000 acre parcel that has been determined by the environmental agencies as necessary to acquire in full. He stated as part of the agreement, the property owner agreed to carry some paper, $24 million over eight years at 4 percent interest. Commissioner Stone discussed the potential litigation issues and impacts to the MSHCP if the property is not acquired. Commissioner Steve Adams asked for the probability that in two years the federal government will step in. He expressed the Commission needs to be realistic and proceed with the eight-year commitment. He stated this is a self-help county and the reason the county of Riverside has been able to continue moving forward while all others have stopped is because the Commission takes the necessary measures to ensure progress. Commissioner Stone replied that while it will be an uphill battle to secure a federal loan guarantee, it is important for the federal government as the Riverside County MSHCP is the largest and most successful habitat plan in the United States and they cannot afford to let it fail. Charles Landry stated RCA is garnering considerable support from the wildlife agencies and others. The issue is to continue to move the legislation through the Senate and the House of Representatives. He believes the outlook is more positive than it was when the process began. Commissioner Buster stated he believes it is not the role of the Commission to provide this funding as it already advanced a major portion of its commitment. He believes the pressure needs to be kept on the federal representatives by not backstopping funding. While he would prefer to only provide one year of funding, he will support two years. He stated the agencies that benefit from the permit besides the Commission are the county and the cities, yet there has been no advancement of funds from the cities. While a number of cities are financially constrained, some cities are not. He also believes there has been too many times where RCA has run afoul of the potential of inverse condemnation, which also needs to be addressed. Commissioner Buster concurred with Commissioner Stone's statement about the critical nature of the property. Riverside County Transportation Commission Minutes December 14, 2011 Page 10 In response to Commissioner Kuenzi's question about who has the authority to revoke the permit, Cathy Bechtel responded U.S. Fish and Wildlife Service. Commissioner Kuenzi then asked if there has been any indication that the permit is in jeopardy and what is the notification process to revoke the permit. Cathy Bechtel stated the Commission has not received any indication or notification that the permit is in jeopardy. She explained the MSCHP implementing agreement outlines the process for the revocation or suspension of a permit. Charles Landry stated there have been discussions as to the circumstances that could cause the permit to be suspended or revoked. Commissioner Kuenzi then stated she concurred with Commissioner Buster's comments and stated the discussion and intent of the WRC Committee was to determine if the Commission should reprioritize its local projects in order to support RCA. She expressed support for the staff recommendation. Commissioner Marion Ashley expressed concern that if the Commission does not commitment to the $24 million over the next eight years, it is jeopardizing the MSHCP and expressed full support of Commissioner Stone's recommendation. Commissioner Botts expressed his support for the staff recommendation. He also expressed his concern for the inconsistent information being presented as to the request and need. Commissioner Spiegel noted that all but one of the WRC Committee members had a different recollection of the action taken. Additionally, she expressed strong concern that it appears none of the Commissioners were approached by city colleagues on the RCA Board about the dire need of this funding. She does not believe that the dire need for this funding was presented at the WRC Committee as it is now being presented. She then requested Anne Mayer explain the outcomes if this funding is or is not approved. Riverside County Transportation Commission Minutes December 14, 2011 Page 11 Anne Mayer stated that the MSHCP is crucial to the future. The Commission repeatedly demonstrated its commitment to the MSHCP, noting 37 percent of the Commission's outstanding debt is for land acquisitions. The MSHCP has unquestionably benefited the Commission. The $24 million could impact existing highway projects, however, staff will have a more definitive answer in two years once the large projects are out to construction. She stated the Commission needs to be aware that the commitment it chooses could impact other decisions to add, advance, or construct projects. Additionally, the Commission has been assisting RCA with the federal loan program. Commissioner Spiegel stated that the WRC Committee's recommendation was based on staff's ability to provide a more definitive answer about the impacts of providing RCA the funding in two years and would not jeopardize as many projects. She then asked Charles Landry to discuss the financial condition of RCA if the Commission does not commit to the $24 million request and the financial condition of RCA in eight years even if the Commission does commit to the $24 million request, fulfilling its obligation. Charles Landry responded the $24 million is for a particular property. He reviewed RCA's revenue streams, which have been considerably impacted by the economy. He stated that while he is unable to go into detail, there are significant legal issues related to this property that could affect the plan. There is also an issue regarding permits related to specific properties and whether or not they are brought into the plan. Commissioner Stone stated he believes the important question to answer is in acquiring this property is whether the acquisition is contingent on a $24 million contribution over time from the Commission. Charles Landry responded the answer is yes. Commissioner Stone then stated that if the Commission does not make the commitment, RCA cannot acquire the property. He then discussed the potential legal issues that could result if the property is not acquired. Commissioner Stone asked legal counsel who would be responsible for paying an inverse condemnation claim. Steve DeBaun, Legal Counsel, responded it will require considerable research to answer that question, which should be directed to RCA's legal counsel. Commissioner Stone recapitulated his position and recommended the following action: 1) to fulfill the Commission's Multiple Species Habitat Riverside County Transportation Commission Minutes December 14, 2011 Page 12 Conservation Plan {MSHCP) funding obligation of $24 million at $3 million per year for the next eight years using Western County Measure A funds; and 2) in two years, reagendize this allocation. If either RCA has received a federal loan guarantee or RCA's revenues have returned to FY 2004/05 levels, the Commission can postpone its contribution until required by the MSHCP. At Chair Pettis' request, Jennifer Harmon, Clerk of the Board, restated Commissioner Stone's motion. Commissioner Gibbs discussed the critical importance of keeping the MSHCP intact and expressed support for Commissioner Stone's recommendation. Commissioner Magee expressed strong concern regarding lack of information and new information that is just being presented. He confirmed in response to Commissioner Spiegel's comment that no one from his city approached him about the dire need for this funding. Based on his experience with RCA and the staff report, which does not discuss the dire need for this funding, he cannot support Commissioner Stone's recommendation at this time and believes this issue requires further discussion outside of this meeting. At this time, Commissioner Ron Roberts left the meeting. Commissioner Scott Hines discussed the merits of conservationism, which is by definition is a long-term public policy approach. Therefore, he believes taking a long-term approach to this issue is appropriate. He expressed support from Commissioner Stone's recommendation. In response to Commissioner Spiegel's comment regarding city colleagues soliciting support for this funding, Commissioner Botts stated he discussed this issue at length with his colleague on RCA and was advised to do what is right for the Commission as the colleague did not sense any crisis. He then asked for the purchase price of the property. Steve DeBaun, Legal Counsel, stated the purchase price of the property cannot be publicly disclosed until the transaction is completed. At Chair Pettis' request, Charles Landry confirmed RCA will not disclose the purchase price of the property until the transaction is completed. Riverside County Transportation Commission Minutes December 14, 2011 Page 13 Commissioner Buster expressed his belief that it is inappropriate to negatively impact the Commission's funding for any one purchase as it is the Commission's responsibility to judiciously balance all of its needs. He restated his strategy to deal with the federal government for the loan guarantee. Commissioner Daryl Busch concurred with Commissioner Stone's recommendation and respectfully disagreed with Commissioner Buster's comment as he believes that $3 million per year for the next eight years is a manageable amount for the Commission. Commissioner Ben Benoit stated that he is also appointed to the RCA board and strongly supports Commissioner Stone's recommendation. He stated that it is unfortunate that all of the information about the need for this funding cannot be disclosed at this time. However, he assured the Commissioners if they were privy to all of the information, they would support this commitment. Chair Pettis stated that while the Commission has a responsibility to fund its obligation, the agreement was to fund the remaining portion after 2019. He believes as a Commissioner it is his responsibility to ensure cash flow is maintained and $3 million is a significant amount of money for any project. He then closed the discussion and requested the Clerk of the Board restate Commissioner Stone's motion. Jennifer Harmon restated the motion. M/S/C (Stone/Ashley) to: 1) Fulfill the Commission's Multiple Species Habitat Conservation Plan (MSHCP) funding obligation of $24 million at $3 million per year for the next eight years using Western County ,Measure A funds; 2) In two years, reagendize this allocation. If either RCA has received a federal loan guarantee or RCA's revenues have returned to FY 2004/05 levels, the Commission can postpone its contribution until required by the MSHCP; and 3) Direct staff to return to the Commission for approval of an agreement with RCA regarding the funding commitment. Abstain: Johnston No: Botts, Buster, Harnik, Henderson, Kuenzi, Magee, Matas, Pettis, Rush, Smith, Spiegel Riverside County Transportation Commission Minutes December 14, 2011 Page 14 10. ELECTION OF RIVERSIDE COUNTY TRANSPORTATION COMMISSION OFFICERS At this time, Chair Pettis opened nominations for the slate of officers. Steve DeBaun advised the Commissioners of a recent Fair Political Practices Commission decision that strongly suggests elected officials, when voting to place themselves in advisory position over their colleagues, abstain from the vote. Commissioner Jeff Stone seconded by Commissioner Scott Matas nominated Commissioner John Benoit for the Chair position, Commissioner Karen Spiegel for the Vice Chair position, and Commissioner Marion Ashley for the Second Vice Chair position. No other nominations were received. Chair Pettis closed the nominations. John Benoit, Karen Spiegel, and Marion Ashley were elected as the Commission's Chair, Vice Chair, and Second Vice Chair for 2012, respectively. Abstain: Ashley, Benoit, Spiegel 11. ITEM(S) PULLED FROM CONSENT CALENDAR AGENDA 78. FISCAL YEAR 2010/11 COMMISSION AUDIT RESULTS At Commission Kotyuk's request, Theresia Trevino provided clarification on the restricted funds, bond proceeds, and debt service requirements. She also explained the difference between the General Fund and Special Revenue Fund final and actual balances. M/S/C (Kotyuk/Spiegel) to receive and file the FY 2010/11: 1) Comprehensive Annual Financial Report (CAFR); 2) Local Transportation Fund (L TF) Financial and Compliance Report; 3) State Transit Assistance (STA) Fund Financial and Compliance Report; 4) Proposition 1 B Rehabilitation and Security Project Accounts Financial and Compliance Report; 5) Compliance Report; 6) Commercial Paper Compliance Report; 7) Auditor Required Communications Report; ------------------------------- Riverside County Transportation Commission Minutes December 14, 2011 Page 15 8) Agreed-Upon Procedures Report related to the Appropriations Limit Calculation; 9) Agreed-Upon Procedures Report related to the Commuter Assistance Program incentives; and 1 0) Management certifications. 12. COMMISSIONERS/EXECUTIVE DIRECTOR'S REPORT 12A. Vice Chair Benoit announced the California Transportation Commission will convene its December meeting in the Board Room at 1 p.m. today. 128. Commissioner Mary Craton announced SCAG released the Regional Transportation Plan/Sustainable Communities Strategy program for a 45-day comment period with workshops in Riverside County on January 23, 2012. She also commended Theresia Trevino and Michele Cisneros for their outstanding work on the Comprehensive Annual Financial Report. 12C. Anne Mayer: • Reminded the Commissioners to return the 2012 Appointment/ Reappointment forms. She noted they will also be receiving information on the 2012 Annual Commission Workshop next week; • Announced OCT A approved the cooperative agreement for the SR-91 toll extension; and • Announced the SR-91 high occupancy vehicle lanes project bid opening was last week with all bids under the engineer's estimate. 13. ADJOURNMENT There being no further business for consideration by the Riverside County Transportation Commission, the meeting was adjourned at 11 :44 a.m. The next Commission meeting is scheduled to be held at 9:30 a.m., Wednesday, January 11, 2012, in the Board Room, at the County of Riverside Administrative Center, 4080 Lemon Street, Riverside, California. Respectfully submitted, cr~ Jennifer Harmon Clerk of the Board RIVERSIDE COUNTY TRANSPORTATION COMMISSION MINUTES Wednesday, January 11, 2012 1. CALL TO ORDER The Riverside County Transportation Commission was called to order by Chair John J. Benoit at 9:32 a.m. in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, Riverside, California, 92501. 2. PLEDGE OF ALLEGIANCE At this time, Chair Benoit led the Commission in a flag salute. 3. ROLL CALL 4. Commissioners/ Alternates Present Commissioners Absent Steve Adams Steven Hernandez Glenn Miller Marion Ashley Scott Hines John F. Tavaglione Ben Benoit Frank Johnston John J. Benoit Andrew Kotyuk Roger Berg Darcy Kuenzi Bob Botts Bob Magee Daryl Busch Scott Matas Bob Buster Glenn Miller Marcelo Co Basem Muallem Mary Craton Greg Pettis Joseph DeConinck Ron Roberts Ginny Foat Adam Rush Rick Gibbs Larry Smith Berwin Hanna Karen Spiegel Douglas Hanson Jeff Stone Jan Harnik Ella Zanowic Terry Henderson PUBLIC COMMENTS At this time, Chair Benoit presented Past Chair Greg Pettis with a plaque to commemorate his tenure as Chair for 2011. Riverside County Transportation Commission Minutes January 11, 2012 Page 2 Barney Barnett, Highgrove area resident, presented a new proposed location for a commuter rail station in Highgrove. Arnold San Miguel, SCAG, announced the 6th Annual SCAG COMPASS Project recognition award nomination and provided the Commissioners with a handout detailing the program. 5. APPROVAL OF MINUTES-DECEMBER 14, 2011 The minutes for the December 14, 2011, meeting will be presented at the next Commission meeting. 6. RESOLUTION OF NECESSITY FOR THE ACQUISITION OF EASEMENT AND TEMPORARY CONSTRUCTION EASEMENT INTERESTS IN PORTIONS OF CERTAIN REAL PROPERTY, BY EMINENT DOMAIN, FOR FREEWAY PURPOSES INCLUDING THE WIDENING AND MAINTENANCE OF INTERSTATE 215 FROM SCOTT ROAD TO NUEVO ROAD, IN RIVERSIDE COUNTY, CALIFORNIA Commissioners Marion Ashley and Daryl Busch recused themselves due to a conflict of interest on Agenda Item 6. At this time, Chair Benoit opened the public hearing and requested legal counsel to explain the nature and scope of the hearing. Steve DeBaun, legal counsel, explained the purpose of this hearing is for the Board to consider the adoption of Resolution of Necessity No. 12-002 to acquire by eminent domain certain real property for the widening and maintenance of improvements related to the 1-215 Central project from Scott Road to Nuevo Road, in Riverside County, California. He stated at the conclusion of this hearing the Board will be asked to adopt the Resolution of Necessity and provided the findings. He also announced there was a revision to Agenda Item 6 that removes Resolution of Necessity No. 12-001 from today's hearing. Jennifer Harmon, Clerk of the Board, verified the proof of mailing that certifies on December 9, 2011 , a notice was sent to the property owner of said parcel numbers. Additionally, an amended notice was mailed on December 15, 2011. Riverside County Transportation Commission Minutes January 11, 2012 Page 3 Gina Gallagher, Senior Staff Analyst, stated the Commission is requested to determine and find that the full requirements for the adoption of a resolution of necessity has been met and satisfied. She then showed a map of the 1-21 5 Central widening project limits and the location of the subject property. Jennifer Harmon stated there were no written objections, protests, or requests to speak from the property owner. Chair Benoit called upon any persons with an interest in the property who wish to be heard on this matter. There were no requests to speak. Chair Benoit then called upon all other persons who wish to be heard on this matter. There were no requests to speak. At this time, Chair Benoit closed the public hearing. Commissioner Jeff Stone asked whether the Commission had offered more than the appraised value. In doing so, he stated his preference that eminent domain actions be used only as a last resort due to significant cost issues. Gina Gallagher explained the Commission is required by law to offer the appraised value and that this particular acquisition has reached the point of needing to start eminent domain actions because of a lack of response from the property owner. Moreover, she assured the Commissioners that this does not mark the end of the process and that communication and negotiations will continue with the property owner. M/S/C (Kuenzi/Botts): 1) Make the following findings as hereinafter described in this report: a) The public interest and necessity require the proposed project; b) The project is planned or located in a manner that will be most compatible with the greatest public good and the least private injury; c) The real property to be acquired is necessary for the project; and d) The offer of just compensation has been made to the property owner.; and Riverside County Transportation Commission Minutes January 11, 2012 Page 4 2) Adopt Resolution of Necessity No. 12-002, "Resolution of Necessity for the Acquisition of Easement and Temporary Construction Easement Interests in Portions of Certain Real Property, by Eminent Domain, More Particularly Described as Assessor Parcel Nos. 311-190-002, 311-190-035 and 311-190-044 (Caltrans Parcel Nos. 22404-1 and 22404-2), for Freeway Purposes Including the Widening and Maintenance of Interstate 215 from Scott Road to Nuevo Road, in Riverside County, California". 7. ADDITIONS I REVISIONS There was a revision to Agenda Item 6, "Resolution of Necessity for the Acquisition of Easement and Temporary Construction Easement Interests in Portions of Certain Real Property, by Eminent Domain, for Freeway Purposes Including the Widening and Maintenance of Interstate 215 from Scott Road to Nuevo Road, in Riverside County, California", as noted in the previous item by legal counsel. 8. CONSENT CALENDAR M/S/C (Busch/Hanna) to approve the following Consent Calendar items: 88. LIST OF PRE-QUALIFIED FIRMS AND AGREEMENTS FOR ON-CALL RIGHT OF WAY SUPPORT SERVICES 1) Award the following agreements to provide on-call right of way support services for a three-year term, and a single one-year option to extend the agreements in an amount not to exceed an aggregate value of $1.5 million; a) Agreement No. 12-31-012-00 with Overland, Pacific & Cutler, Inc; and b) Agreement No. 12-31-038-00 with Epic Land Solutions, Inc; 2) Authorize the Executive Director, or designee, to execute task orders awarded to contractors under the terms of the agreements; and 3) Authorize the Chair, pursuant to legal counsel review, to execute the agreements, including the option year, on behalf of the Commission. Riverside County Transportation Commission Minutes January 11, 2012 Page 5 8C. LIST OF PRE-QUALIFIED FIRMS FOR ON-CALL RAIL OPERATIONS SUPPORT SERVICES 1 ) Award the following agreements to provide on-call rail operations support services for a three-year term, and two one- year options to extend the agreements, in an amount not to exceed an aggregate value of $1 million; a) Agreement No. 12-25-022-00 with HDR Engineering, Inc.; b) Agreement No. 12-25-035-00 with Parsons Brinckerhoff, Inc.; and c) Agreement No. 12-25-036-00 with STV Incorporated; 2) Authorize the Executive Director, or designee, to execute task orders awarded to contractors under the terms of the agreements; and 3) Authorize the Chair, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission. Abstain: J. Benoit, 8C 9. FISCAL YEAR 2011/12 MID-YEAR REVENUE PROJECTIONS Theresia Trevino, Chief Financial Officer, presented Agenda Items 9 and 10 concurrently, and discussed the following areas: • Annual revenue projects; • Measure A trends; • Activity by economic category and segments; • Historical sales tax by segment; • Measure A sales tax revenues; • Local Transportation Fund (L TF) sales tax revenues; • Measure A and L TF taxes; • Transportation Uniform Mitigation Fee revenues; and • Staff recommendation and next steps. Commissioner Adam Rush asked if an analysis had been performed on the revenue impact of a reduction in TUMF fees. Theresia Trevino explained that the projections did not go into that level of detail and that the amount of TUMF funding collected was insufficient to make that kind of determination. Riverside County Transportation Commission Minutes January 11, 2012 Page 6 Commissioner Andrew Kotyuk remarked on the importance of this type of information as a determinant of the overall economy. He questioned the timing of when specific funding sources such as Measure A and TUMF began their decline. His question was based on the desire to know if a recovery in TUMF might lag but would take place soon as a lagging indicator. M/S/C (Stone/Henderson) to: 1) Approve the mid-year revenue projections for FY 2011/12; 2) Approve the budget increase adjustments to Measure A revenues of $9.3 million and expenditures of $3,904,000, to reflect the revised Measure A projections; 3) Approve the budget increase adjustments to Local Transportation Fund (L TF) revenues and transfers in of $4,738,000, and expenditures and transfers out of $876,000 to reflect the revised L TF projections; and 4) Approve the budget decrease adjustments to Transportation Uniform Mitigation Fee (TUMF) revenues of $300,000 to reflect the revised TUMF projections. 10. FISCAL YEAR 2012/13 REVENUE PROJECTIONS M/S/C (Stone/Henderson) to: 1) Approve the projections of the Local Transportation Fund (L TF) apportionment for the Western Riverside County, Coachella Valley, and Palo Verde Valley areas; 2) Approve the projections for Measure A; and 3) Approve the projections for Transportation Uniform Mitigation Fee (TUMF) revenues. 11. AGREEMENT WITH SKANSKA CIVIL WEST USA FOR CONSTRUCTION OF THE STATE ROUTE 74/INTERSTATE 215 INTERCHANGE IMPROVEMENT PROJECT IN THE CITY OF PERRIS Lisa DaSilva, Capital Projects Manager, presented the proposed contingency increase for the 74/215 interchange improvement project. Commissioner Ginny Foat expressed her concern with the proposed increase in contract contingency. She identified a number of items that she believes should have been anticipated. Riverside County Transportation Commission Minutes January 11, 2012 Page 7 Lisa DaSilva explained that due to the federal requirements of the project, a number of items had to be addressed through a contract contingency because they were unknown at the beginning of the contract. She explained that there has been significant savings that have been realized by the project since its inception and that the requested changes were planned from the beginning. She also informed the Commission that the project would be open to traffic within a few weeks and that a ribbon cutting ceremony was planned for February 15. Commissioner Roger Berg concurred with Lisa DaSilva response and stated his support of the staff recommendation. Commissioner Jeff Stone commended Commissioners Foat and Berg for their insights into the matter. He recounted that the County has established a review committee for major contract scope changes and overruns and that RCTC should examine the possibility of doing something similar. He suggested that the committee include representation from the Board of Supervisors and city representatives from both Western Riverside County and the Coachella Valley. Chair Benoit asked staff to return to the Commission at a future date with details on how such a committee might operate and steps for its implementation. M/S/C (Ashley/Busch) to approve an increase in the contingency for Agreement No. 10-31-030-00 with Skanska USA Civil West (Skanska) for construction of the 74/215 interchange improvement project in the city of Perris (Perris) in the amount of $1 million for a revised total contingency of $2,343,996, and a revised total amount not to exceed $15,783,000. No: Foat 12. 2012 STATE AND FEDERAL LEGISLATIVE PLATFORMS Aaron Hake, Government Relations Manager, presented the 2012 State and Federal Legislative Platforms, highlighting the following areas: • Focus in Washington, D.C. and Sacramento; • State platform; • Governor's budget; • MAP-21 Reauthorization; • TIFIA program; Riverside County Transportation Commission Minutes January 11, 2012 Page 8 • Perris Valley Line; • High-Speed Rail; and • Federal platform. Commissioner Terry Henderson queried Aaron Hake regarding a statement in the platform that expressed support for tax relief for alternative fuel users. He explained that the original intent of the language was to support ongoing efforts from transit providers to minimize the cost of operating fleets with clean fuel technology. Commissioner Henderson asked that the platform be amended to clarify the issue. Commissioner Foat stated her support for advocating for greater use of Palm Springs Airport along with the original language that urged support for greater use of Ontario Airport. Chair Benoit added that the airport in Thermal was yet another important aviation asset and recommended the platform language reflect the Commission's support for Palm Springs and Thermal airports. Commissioner Buster raised his concern regarding the issue of freight infrastructure and goods movement, noting that significant commitments had been made to advance a number of projects including grade separations but the economy is now faced with added pressure from the expansion of the Panama Canal. He urged staff to continue to pay close attention to the issue. Chairman Benoit inquired about the status of high-speed rail legislation and urged staff to keep the Commission informed about new developments. John Standiford, Deputy Executive Director, assured the Commission that the topic would come before the Commission a number of times in the coming year and would be a topic of discussion at an upcoming ad hoc committee meeting and the Commission's annual workshop. M/S/C (Ashley/Spiegel) to adopt the 2012 State and Federal Legislative Platforms, and in doing so, to reflect the suggested amendments regarding clean fuels and local airport. Abstain: Magee Riverside County Transportation Commission Minutes January 11, 2012 Page 9 13. ITEM(S) PULLED FROM CONSENT CALENDAR AGENDA SA. AMENDMENTS TO ON-CALL STRATEGIC PARTNERSHIP ADVISOR SERVICES AND TRAFFIC AND REVENUE STUDY SERVICES Commissioner Stone requested an explanation of the proposed contingency amount of the Nossaman, Guthner, Knox & Elliott, LLP amendment included in the staff report as it exceeded the standard 10 percent. David Thomas, Toll Project Manager, explained that the contingency amount is a good-faith estimate to anticipate unanticipated needs that may come about as part of the firm's work on behalf of the Commission. John Standiford, Deputy Executive Director, added that the recent award of a TIFIA grant might add to the complexity of the work needed for the project. Commissioner Stone agreed that additional work might be needed and that if that was the case, there should be no problem in returning to the Commission. With that observation, Supervisor Stone moved the item with an amendment that reduced the contingency amount to not exceed 1 0 percent of the contract. M/S/C (Stone/Spiegel) 1) Approve Agreement No. 06-66-026-09, Amendment No. 8 to Agreement No. 06-66-026-00, with KPMG Corporate Finance, LLC (KPMG) for on-call strategic partnership advisor services for the proposed State Route 91 and Interstate 15 corridor improvement projects (CIPs) to extend the contract term to February 9, 2014, and to increase the contract by $280,018, plus a contingency amount of $60,000, for a total amount not to exceed $340,018; 2) Approve Agreement No. 06-66-027-21, Amendment No. 10 to Agreement No. 06-66-027-00, with PB Americas, Inc. (PB) for on-call strategic partnership advisor services for the proposed SR-91 and 1-15 CIPs to extend the contract term to February 9, 2014; Riverside County Transportation Commission Minutes January 11, 2012 Page 10 3) Approve Agreement No. 06-66-028-11, Amendment No. 8 to Agreement No. 06-66-028-00 with Nossaman, Guthner, Knox & Elliott, LLP (Nossaman) for on-call strategic partnership advisor services to extend the contract term to February 9, 2014, and increase the contract by $1 ,878,900, plus a contingency amount of $187,890, for a total amount not to exceed $2,066, 790; 4) Approve Agreement No. 1 0-31-099-01 , Amendment No. 1, to Agreement No. 10-31-099-00, with Stantec Consulting Services, Inc. (Stantec) for investment-grade traffic and revenue study services for the SR-91 CIP to extend the contract term to February 9, 20 14; 5) Authorize the Chair, pursuant to legal counsel review, to execute these agreements on behalf of the Commission; and 6) Authorize the Executive Director to approve contingency work up to the total not to exceed amount as required for these agreements. No: Berg and Henderson Abstain: J. Benoit 14. COMMISSIONERS/EXECUTIVE DIRECTOR'S REPORT 14A. Commissioner Mary Craton announced the 2012 SCAG Regional Conference and General Assembly is scheduled for April 4-5, 2012, located at the SCAG office in Los Angeles. 14B. Commissioner Ron Roberts expressed strong concern that the Commission workshop is on the same day as the SCAG meeting. He also stated in past years, the workshop has also interfered with another agencies' meetings. 14C. John Standiford announced that the annual Commission workshop is scheduled for February 2-3, 2012, in La Quinta and reminded Commissioners to return the workshop form to the Clerk of the Board. 14D. Commissioner Karen Spiegel announced Aaron Hake is running for Corona City Council. Riverside County Transportation Commission Minutes January 11, 2012 Page 11 15. CLOSED SESSION 15A. CONFERENCE WITH LEGAL COUNSEL: ANTICIPATED LITIGATION Pursuant to Government Code Section 54956.9 (b) Potential Number of Cases: One The Commission denied the claim received from claimants Gilberto and Yolanda Lizarraga in the matter of Ricardo Lizarraga and directed a rejection letter be sent. 16. ADJOURNMENT There being no further business for consideration by the Riverside County Transportation Commission, the meeting was adjourned at 11 :25 a.m. The next Commission meeting is scheduled to be held at 1:30 p.m., Thursday, February 2, 2012, Embassy Suites La Quinta, La Quinta, CA. Respectfully submitted, ~~ Jennifer Harmon Clerk of the Board AGENDA ITEM 7 A RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 2, 2012 TO: Riverside County Transportation Commission FROM: Anne Hallberg, Accounting Supervisor THROUGH: Anne Mayer, Executive Director SUBJECT: Quarterly Investment Report STAFF RECOMMENDATION: This item is for the Commission to receive and file the Quarterly Investment Report for the quarter ended December 31, 2011. BACKGROUND INFORMATION: Attached are the quarterly investment and cash flow reports as required by state law and Commission policy. The county of Riverside's Investment Report for the month ended December 31 , 2011 , is also attached for review. Attachments: 1) Quarterly Investment Report for the quarter ended December 31, 2011 2) County of Riverside Investment Report for the month ended December 31, 2011 Agenda Item 7 A 1 Statement of Compliance Nature of Investments ATTACHMENT 1 Debt Reserve .63% 12.87% Portfol_io_M_a_tu_r_it_Y __ 0 to 90 Days 100% Portfolio Investment Type County Pool/Cash 92.61% LAIF _____ ,,.~ 0.70% County Pool/Investment 2.78% All of the above investments and any investment decisions made for the quarter ended December 31, 2011 were in full compliance with the Commission's investment policy as adopted on May 11, 2011. The Commission has adequate cash flows for six months of operations. Signedby:~~ ChiefFinancial Officer 2 Riverside County Transportation Commission Investment Portfolio Report Period Ended: December 31, 2011 OPERATING FUNDS City National Bank Deposits County Treasurer's Pooled Investment Fund Local Agency Investment Fund (LAIF) Agency/Treasury Securities: Subtotal Operating Funds FUNDS HELD IN TRUST County Treasurer's Pooled Investment Fund Local Transportation Fund Subtotal Funds Held In Trust COMMISSION BOND PROJECT FUNDS/DEBT RESERVE US Bank Money Market Investment Agreements County of Riverside Pool investment First Amencan Government Obligation Fund F1rst Amencan Treasury Obhgabons Fund-Held in Trust Subtotal Bond Project FundsfDebt Reserve TOTAL All Cash and Investments Investment Transactions for the Quarter Ended December 31, 2011 Purchases: None Maturities: None RATING MOODYS/ FITCH COUPON FAIR VALUE S&P RATE 731,344 A3JBBB+ N/A 411,884,955 a/MR1/AAAJV1 N/A 3,599,605 Not Rated N/A N/A NIA N/A 4~904 66,611,518 a-MR1/AAAJV1 N/A 66,611,518 Aaa/AAAm N/A a/MR1/AAAJV1 N/A Aaa/AAAm N/A Aaa/AAAm N/A 482~ Par Value at Matunty Jlaturity Date Coupon I Rate YIELD TO PAR PURCHA MATURIT MATURIT PURCHA MARKET UNREALIZED VALUE SEDATE Y DATE y SE COST VALUE GAIN (lOSS) N/A 0 52% N/A N/A NIA N/A N/A N/A N/A 0.52% 052% N/A SUMMARIZED INVESTMENT TYPE Banks 731,344 County Pool 478,496,473 County Pool Investment LAIF 3,599,605 I Mutual Funds CNI Charter US Bank Money Market First Amencan Government Obl!gation Fund Sub-Total Mutual Funds ---Federal Agency securities Certificates of Depostt U.S. Treasury secunties Corporate Note/Commercial Paper Investment Agreements TOTAL $482,827,422 3 Capital Markets q6ri K~ri~~1~;z:: .lt{!e .. Treasurer-"•Tax GeUector Jon Christensen Asst. Treasurer-Tax Collector Giovane Pizano Investment Manager Angela Tressler Asst. Investment Manager Investment Objectives !(3B@i?JL , ''',"),)~/~,~~'""" ;·s All Data as of December 30, 2011 "2011, No Heaven" Another year has come and gone, and again, it is one for the record books. It has been a tough start so far as we had hoped this new decade would start better than the last; however, there were a few positives to note. We have seen unemployment drop from 9.4% in Janual)' to 8.6% in December. Interest rates have remained low and should continue into 2013 according to the FED, providing for lower debt service for individuals, private and public sector alike. Moreover, according to the FED in its Beige Book survey which stated, "The economy expanded at a moderate pace in 11 of 12 districts, led by gains in manufactur-ing and consumer spending. Overall economic activity increased at a slow to moderate pace since the previous report across all Federal Reserve districts except St. Louis, which reported a decline in economic activity." Rising consumer sentiment was also noted by the FED, which said "household spending has increased at a somewhat faster pace in recent months,'' and that the committee "continues to expect a moderate pace of economic growth over coming quarters." 2011 was rife with geopolitical, natural and economic turmoil, all of which led to volatility in the financial and commodities markets. It started with the Arab spring, protests and ouster of Egyptian President Hosni Mubarak and Libyan leader Moammar Gaddafi, along with the unrest that has ensued all over the Middle East. It also brought us the horror of the mega-earthquake and subsequent tsunami that struck Japan. In response to this disaster, Riverside County employees raised and generously gave thousands of dollars to the Japan Relief Fund. Further declines in housing values was evident with the S&P/Case-Sheller index reporting the 20 city home price index dropping to its lowest level in eight years. Nationally, housing prices decreased 5.1% in the first quarter to their lowest level since 2002. Moreover, 6.5 million homes were either late on payments or in foreclosure, which was almost double the amount of homes for sale nationwide. News like this as well as decreasing commercial and industrial property values spurred our County Assessor to report that the assessed valuation Portfolio Statistics ATTACHMENT 2 will be reduced by another 1.45% for the current fiscal year, marking the third straight year of declines. Closer to home the State is continuing its efforts to shore up its dismal budget by dissolving local RDAs, which will affect job growth and unemployment here in Riverside Coun-ty; the county itself continues to struggle with a projected $80 million budget hole for next fiscal year. No real shocker, but nonetheless a reality check, was the downgrade of the U.S. government's credit rating by Standard & Poor's; we now rank on par with New Zealand and Belgium, but still above that of China and Japan. Other big news for the year was the Euro-zone crisis and the still ongoing risk of a sovereign debt default in one of the troubled "PIIGS" nations -Portugal, Italy, Ireland, Greece and Spain. It has the potential to spread to other countries in Europe and eventually the rest of the world's major economies, sparking a crisis again in the global financial system. Growing concerns continue into 2012 about further confiict in the Middle East, namely Iran, which has the potential to cause disruptions and price increases in the oil markets. Any run-up in prices like that which occurred back in 2008 when crude hit $147 per barrel would be like an unwelcomed and massive tax increase on the U.S. economy. We are not out of the storm yet folks, and if the right decisions are not made by our leaders both here and abroad in 2012, this "Perfect Storm" will continue for quite a while longer, affecting our recovel)'. Last, but certainly not least, it was good to see our brave troops come home from Iraq with their heads held high and their mission accomplished. We appreciate your sacrifice and all that you do in the name of freedom as we know all too well here in the United States, freedom is not free. Best wishes to all in 2012! A2~ Don Kent Treasurer-Tax Collector *Market values do not include accrued interest. II December 5,448,105, 732.50 5,444,673,580.47 3,432,152.03 0.06 0.53 1.30 1.28 November · · s,214,574,su.~~~ . ·s,2u,os7,889.81:: 3,516,923:09 0.07 0.51 1.21 1.19 ,, '0. ' ·' October 4,861,404,499.89 4,858,096,899. 73 3,307,600.15 0.07 0.53 1.29 1.27 '' :/ !.:;<·~/\:·~~:::::u; , "· • . ·-,~.' ·-.'~,· , ·< .~~:<-! <'·:-:;• ' 5,Q~g.~;V~1Q61.22 .. "§:~.@~8.2.:59';549.60 <i+~fi~,514,411.62 0.09 0.55 1.29 1.27 5,100,678,315.32 5,093,145,011.06 7,533,304.26 0.15 0.56 1.20 1.18 ; ;}i%,ooo,t87, 2o6.~i[~~,~~~:~§94.922.s1i:·SII1I~.264. 694.67 0.11 0.59 '1.25 1.22 4 1/6/2012 12/23/2011 12/22/2011 12/27/2011 1/4/2012 12/16/2011 Nonfarm payroll employment counts the number of paid employees working part-time or full-time in the nation's business and government tablish Unemployment Rate The unemployment rate measures the number of unemployed as a ntage of the labor force. Durable Goods Orders-Durable goods orders reflect the new orders pia ced with domestic M/M change manufacturers for immediate and future delivery offa ctory hard goods. Durable goods orders are a leading indicator of industrial production and capitals Real Gross Domestic Gross Domestic Product (GDP) is the broadest measure of aggregate Product-QjQ change economic activity and encompasses every sector of the economy. GDP is the country's most comprehensive economic scorecard. Consumer Confidence The Conference Board compiles a survey of consumer attitudes on present economic conditions and expectations of future conditions. Consumer spending drives two-thirds of the economy and if the Factory Orders-M/M change Consumer Price Index-M/M change consumer is not confident, the consumer wi II not be wi II ing to pull out bucks. and nondurable goods. All in all, this report tells investors what to expect from the manufacturing sector, a major component of the economv and therefore a maio r i nfl u e nee on their investments. The Consumer Price Index is a measure of the average price level of a fixed basket of goods and services purchased by consumers. Monthly changes in the CPI represent the rate of inflation. As the rate of inflation changes and as expectations on inflationc~ange, the markets 1,563.70 $ (182.68)1 I 8.7% Decrease to 1.9% 3.8% 0.00% 68.0% Increase to 0.25% 32.0% 2.0% 1.8% Increase to 0.50% 0.0% 59.0 64.5 2.0% 0.1% 0.06 0.01 0.10 (0.01) 0.24 (0.02) 0.35 (0.04) 0.83 (0.12) 1.34 (0.18) .I.V I '-UI 1.88 (0.19) 30-Year 2.89 Tl 1.00% -Pool Yield 0.80% TIMMI 11Fidelity Prime Institutional MMF FIPXX 0.17% Federated Prime Obligations Fund POl XX 0.20% Wells Fargo Advantage WFJXX 0.08% nley Institutional Prime Liquidity Fund MPFXX 0.12% BlackRock Prime Cash Fund BPI XX 0.15% The Treasurer's Institutional Money Market Index (TIMMI) is compiled and reported by the Riverside County Treasurer's Capital Markets division. It is a composite index derived from five AAA rated prime institutional money market funds. Similar to the Treasurer's Office, prime money market funds invest in a diversified portfolio of U.S. dollar denominated money market instruments including U.S. Treasuries, government agencies, commercial paper, certificates of deposits, repurchase agreements, etc. TIMMI is currently comprised of the five multi billion dollar funds listed above. 01/2012 01/2012 842.93 1,339.48 (496.55) 19.73 (0.00) 325.00 02/2012 425.00 921.25 (496.25) 496.25 0.00 172.96 03/2012 941.20 792.95 148.25 148.25 151.00 04/2012 1,404.16 733.64 670.52 818.77 100.00 05/2012 746.26 1,035.89 (289.63) 529.14 368.66 06/2012 884.08 1,220.61 (336.53) 192.61 374.50 cash flow requirements are 07/2012 841.95 826.31 15.64 208.25 318.69 based upon a 12 month histori-08/2012 518.23 711.33 (193.10) 15.15 251.97 cal cash flow model. Based 09/2012 649.54 750.00 (100.46) 85.31 0.00 238.04 upon projected cash receipts 10/2012 669.49 826.92 (157.43) 157.43 0.00 246.00 and maturing investments, 11/2012 832.33 676.45 155.88 155.88 269.12 there are sufficient funds to meet future cash flow dis-bursements over the next 12 * All values reported in millions($). months. Page3 6 ASS ~Ji;'?o:rlit>fl ~:ftQtit-~-:.~4:xz::0:,~i;h!iiYI!il Pax,;;,,w .. -l!lh~~·.~r~!l ..... tt~l'fk~~tt!tlt[$.Ph. ___ .. ~ii!l! ...... W~Ctfrl;;1BiltlifllrJ MMKT ! 6,000.00 6,000.00 6,000.00 100.00% 0.03% .003 .003 CAL TRUST FND l 54,000.00 54,000.00 54,000.00 100.00% 0.52% .003 .003 LOCAL AGCY INVST FND j 50,000.00 50,000.00 50,000.00 100.00% 0.38% .003 .003 DDA/PASSBK i 5,000.00 5,000.00 5,000.00 100.00% 0.11% .003 .003 LOCAL AGCY OBLIG l 560.00 560.00 560.00 100.00% 1.00% 8.463 8.463 US TREAS BONDS l 315,000.00 316,285.26 315,709.50 99.82% 0.32% .406 .406 FHLMC DISC NOTES j 70,000.00 69,871.40 69,993.75 100.18% 0.19% .429 .429 FHLMC BONDS l 728,741.00 728,977.05 729,568.84 100.08% 0.79% .898 2.379 FNMA DISC NOTES l 50,000.00 49,935.44 49,953.13 100.04% 0.14% .838 .838 FNMA BONDS l 1,028,685.00 1,029,747.98 1,031,207.19 100.14% 0.88% .803 2.403 FHLB DISC NOTES l 120,000.00 119,787.48 119,946.98 100.13% 0.18% .723 .723 FHLB BONDS l 2,210,670.00 2,212,584.53 2,213,096.50 100.02% 0.40% .725 .932 FFCB DISC NOTES j 32,000.00 31,917.01 32,000.00 100.26% 0.26% .250 .250 FFCB BONDS l 245,705.00 246,040.43 246,749.70 100.29% 0.64% 1.112 1.194 FMAC DISC NOTES ! 123,000.00 122,751.08 122,981.88 100.19% 0.21% .466 .466 FARMER MAC l 37,500.00 37,502.38 37,584.38 100.22% 0.61% 1.343 1.343 MUNI BONDS j 98,695.00 98,930.55 98,930.55 100.00% 0.47% .576 .576 COMM PAPER l 115,000.00 114,783.00 114,823.36 100.04% 0.36% .285 .285 NCDS . . ! 150,000.00 . 150,000.00 150,000.00 100.00% 0.19% .210 . .210 Totals (000'§1: , .\73 '5)!40,556.00 \5.444,673.58 5A48,10S,13 100:06% . 0.53% .114 · 1.303 3,000,000.00 -2,000,000.00 _., Q Q e.. 1,000,000.00 o.oo t: Q Q ::.::: CJ U') U') U') ., ., U') U') U') ., U') z: if QCI ::1 c 1.&.1 c 1.&.1 Q 1.&.1 c 1.&.1 c 1.&.1 ::E: LL U') z: ~ z: ~ z: ~ z: s z: t5 ::E: Iii Iii ~ lXI 0 0 0 0 0 0 a:ll m r:a a:ll z: a:ll z: ~ > ->-~ u u u ""' ~ r:a u a:ll u ~ z: c( u U') % U') ::E: ...... U') u U') -c ~ LU .... ..... .... :c .... u.. .... Q ....I c z: c c c i:) c a::: :c ..... u.. ...... 1-c:..J c( LL r:a a:ll c:..J u ... CJ <( ., 3 :::E ..... u ....: ""' u :::::1 z: X .... :E: ..... 9 X u.. ..... .... u.. ~ ..... 9 Pay4 u U') ""' c ::E: z: 0 lfi m ::E: -a::: z: ::::1 ""' :::E ...... -MMKT-0% -CALTRUST FND • 1% -LOCAL AGCY INVST FND • 1% -DDA/PASSBK • 0% -LOCAL AGCY OBUG • 0% -US TREAS BONDS • 6•10 C::::. FHLMC DISC NOTES -1% -FHLMC BONDS • 13% c:::a FNMA DISC NOTES • 1% -FNMA BONDS· l9o/o a:: U') w c Q, u ""' z: Q, % ::e:: 0 u 'Y%\i,De(:ember 2o1'i; -FHLB DISC NOTES · 2% -FHLB BONDS· 41% -FFCB DISC NOTES • 1°/o c:::> FFCB BONDS-5°/o -FMAC DISC NOTES· 20/o = FARMER MAC· 1°/o .. MUNlBONDS·2o/o -COMM PAPER-2% -NCDS-3°/o &<_,...,. MATURtTY C[fT-:.:tl:ljf:1/~ Assets {()OO'st ,~~·· .. ~che~.!,lled,,Pa.r MMKT 6,000.00 CAL TRUST FND 54,000.00 LOCAL AGCY INVST FND 50,000.00 DDA/PASSBK 5,000.00 LOCAL AGCY OBLIG 560.00 US TREAS BONDS 315,000.00 FHLMC DISC NOTES 70,000.00 FHLMC BONDS 728,741.00 FNMA DISC NOTES 50,000.00 FNMA BONDS 1,028,685.00 FHLB DISC NOTES 120,000.00 FHLB BONDS 2,210,670.00 FFCB DISC NOTES 32,000.00 FFCB BONDS 245,705.00 FMAC DISC NOTES 123,000.00 FARMER MAC 37,500.00 MUNI BONDS 98,695.00 COMM PAPER 115,000.00 NCDS 150,000.00 Totals (OOO's}: 5,440,556.00 10.000 &! ::i 5.000 >-• 000 ~ :E :E ~ .... t;; ~ 5 -~ l:lu.. ~~ i3z OM _, ~ ~ i Durati,PJ:I {Yr) .003 .003 .003 .003 I !' ;: -'" ~~ _,0 ~ g 4.494 .405 .429 2.342 .838 2.363 .722 .926 .250 1.184 .466 1.338 .573 .285 .210 1~287 ,.,.c, Ill 0 z g ~ Ill ::> E"-ec;tive !?,!,I ration .003 .003 .003 .003 U!on ~ .... co vz 3 :1: .... 4.494 .405 .429 .680 .838 .584 .722 .640 .250 1.038 .466 1.338 .573 .285 .210 .605 • .!! Ill z g 3 :1: ... ···"·~···IN~L, (Yr). ... .003 l!h Ill ~ u Ill 8 < :£ z .... Ill z g < :£ iE .003 .003 .003 8.463 .406 .429 .898 .838 .803 .723 .725 .250 1.112 .466 1.343 .576 .285 .210 .714 1m Ill b z ~ 8 ~ if -Duration Bllll Effective Duration Avg Life Pags f"!i!t (Yr) .003 .003 .003 .003 II 8.463 .406 .429 2.379 .838 2.403 .723 .932 .250 1.194 .466 1.343 .576 .285 .210 1.303 ,,~ ' Ill z g 9 iE "' ~ ~ 8 ~ u.. I! h Ill z g ca It u. Maturity "' i bl a ~ u.. I·' .. \) :E ~ "' ~ ~ "' z g !Z :;::1 :E ~ ... ~ :£ :E 8 December 2011 Ill \) z AVERAG~;LIFF "' .:{ )i,:J, i '1;;~:ho 1 4,000,000.00 I I I I I ' j I I I I I I I I I I I I I I I I I I I I I liB i i 0 !!:l s ~ 0.00 AVERAGE UFE P'96 -NCDS-:3% -COMM PAPER· : 2% -MUNl BONDS-: 2o/o FARMER MAC· :1% -FMAC DISC NOTES· : 2% fFCB BONOS· : 5% -FFCBDISCNOTES-:1% -FHLBBONDS· :41% -FHLB DISC NOTES· : 2% -FNMABONDS-:19°ft> FNMA DISC NOTES -: 1% -FHLMC BONOS· : 13% FHLMC DISC NOTES-: 1% -US TREAS BONOS· : 6% -lOCALAGCY OBLlG • : 0°1<> -DDA/PASSBK • : 0% -LOCAL AGCY INVST FND-: 1% -CALTRUST FND-: 1% -MMKT· :0% dircember 2&'~± ljjj)?f R!YtRSIOE CREDIJ f:o!~Ul!!99~s) , "" .• "Par." ··~~·~-~·· ,B90k Market Mlg"JJ!9"C!l5 .. " ..... Y1!ill4 Aaa 4,892,916.00 4,897,271.10 4,900,350.10 100.06% 0.55% Aal 168,540.00 168,540.27 168,540.27 100.00% 0.26% Aa2 138,040.00 137,823.00 137,863.36 100.03% 0.41% Aa3 25,000.00 25,225.75 25,225.75 100.00% 0.25% NR 216 060.00 215 813.46 216 126.25 100.14% 0.32% Totals (OOO's): 5,440,556.00 5,444,673.58 5,448,105.73 100.06% o;5301u S&P(Q9!i::§r'!'· ., •. .,., Pa.r."". "" S~"'"""" ,.Mar~~t. "MJITlBook ·~·" Yie!q AAA ! 2,156,951.00 2,161,557.59 2,164,486.03 100.14% 0.62% AA+ i 2,868,065.00 2,867,596.51 2,867,787.43 100.01% 0.49% AA i 24,480.00 24,480.27 24,480.27 100.00% 0.68% AA-; 175,000.00 175,225.75 175,225.75 100.00% 0.20% NR 216 060.00 215 813.46 216 126.25 100.14% 0.32% Totals (OOO's): 5,440,556.00 5,444,673.58 ". 5,448,105.73 100.06% · "0.53°/u * On August 5, 2011 Standard & Poors downgraded US. Treasunes and Government Agencies from AAA to AA+ The Treasurer's office reports rat1ngs as of the purchase date Therefore, the downgrade w1ll only effect Treasury and Agency purchases executed after August 5 -AAA • 40o/o -AA· • .3"11> -AA+-53% -NR-4% -AA-0% 1'0 liB Aaa • 900/o c:=1 Aa3 ~ 0°./o -Aa1·3o/o -NR-4o/o -Aa2-3'o/o Derember"2011 GOIXX FEDERATED GOV 0!/01/2012 .010 .010 1,000,000.00 1,000,000.00 100.000000 1,000,000.00 0.00 MVRXX MORGAN STANLEY GOV 0!/01/2012 .030 .030 5,000,000.00 5,000,000.00 100.000000 5,000,000.00 0.00 CLTR CAL TRUST SHT TERM FUND \134~i\,>'·,' LOCAL AGCY INVST FND LAIF DDAIPASSBK CASH LAIF UBOC MANAGED RATE , : -·· .~'>"L;~':£1&·.·., LOCAL AGCY OBLIG LAO US DIST COURTHOUS US TREAS BONDS 9!2828MQO 912828NS5 912828NQ9 9!2828NQ9 912828MQO 912828NS5 912828MQO 9!2828NQ9 912828MQO 9!2828MUJ 912828NS5 912828MQO 912828MQO 912828NS5 912828NS5 912828NQ9 912828PH7 912828NX4 912828NS5 9!2828NS5 U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND U.S. TREASURY BOND {.}~:-7:-:: >~;7lt>;, ;~-, FHLMC DISC NOTES 313396WZ2 313396ZQ9 313396ZN6 FHLMC DISC NOTE FHLMC DISC NOTE FHLMC DISC NOTE </ ' ·'•, ",,f\ ~:>;,~~~:3 FHLMC BONDS 3137EACG2 3134G1GQ1 3134G1GQ1 3134G1GQ1 3134G1GQ1 3137EACL1 3134G1SGO 3134G1WT7 3134G1XG4 3137EACK3 3137EACR8 3137EACR8 3134G1VG6 3134G2CL4 3137EACP2 3137EACL1 3134G2FT4 3134G2KY7 3!34G2KY7 FHLMC FHLMC FHLMC FHLMC FHLMC FHLMC FHLMC 3.5YrNc6Mo FHLMC FHLMC 2Yr1'1c6Mo FHLMC 2.2Yr FHLMC 3Yr FHLMC 3Yr FHLMC 2Yr FHLMC 3Yr FHLMC 2Yr FHLMC 3Yr FHLMC 2.25Yr FHLMC 2.25YrNc6MoB FHLMC 2.25YrNc6MoB ... .... ..... ···•. :•!l'~l· .on ·~~&;oo!l';tfOO,oo MOiJ(I!!!!'iJio· too.oooooo... &,(!'oo,ooo.oo o.oo .... 0!/01/2012 0!/01/2012 01/01/2012 06/15/2020 02/29/2012 06/30/2012 07/31/2012 07/31/2012 02/29/2012 06/30/2012 02/29/2012 07/31/2012 02/29/2012 03/31/2012 06/30/2012 02/29/2012 02/29/2012 06/30/2012 06/30/2012 07/31/2012 08/31/2012 09/30/2012 06/30/2012 06/30/2012 05/18/2012 07/20/2012 07/18/2012 01/09/2013 08/28/2012 08/28/2012 08/28/2012 08/28/2012 10/28/2013 03/03/2014 11/26/2012 10/29/2012 07/27/2012 02/25/2014 02/25/2014 10/30/2012 04/29/2014 11/30/2012 10/28/2013 08/13/2013 09/23/2013 09/23/2013 .519 .519 .380 .• 3110 .IJ3 t:L;~: ... !.003 1.003 .875 .625 .625 .625 .875 .625 .875 .625 .875 1.000 .625 .875 .875 .625 .625 .625 .375 .375 .625 .625 .706 .200 .160 .150 "·~~~' 1.375 1.000 !.000 !.000 1.000 .875 1.250 .515 .500 1.125 1.375 1.375 .625 1.350 .375 .875 .875 .750 .750 .5!9 54,000,000.00 ~~~~~~~4f;~J)f:~t~,~;(JJJO.OO .380 .380 .113 .113 !.003 •\ •. 1.003 .410 .487 .512 .455 .259 .385 .257 .400 .255 .282 .413 .281 .287 .324 .294 .304 .342 .327 .222 .194 .;,~4; · .. .200 .160 .ISO .:1$1· 1.407 .709 .694 .732 .699 .937 1.250 .470 .500 .514 1.375 1.465 .650 1.160 .385 .790 .611 .750 .750 50,000,000.00 so.uoo.ooo.oo 5,000,000.00 · .···.'•Si.!\!!9.191!'0;oo 560,000.00 560,00(1;,09'>'; 10,000,000.00 10,000,000.00 10,000,000.00 15,000,000.00 15,000,000.00 15,000,000.00 15,000,000.00 15,000,000.00 20,000,000.00 15,000,000.00 15,000,000.00 20,000,000.00 25,000,000.00 25,000,000.00 20,000,000.00 15,000,000.00 15,000,000.00 10,000,000.00 15,000,000.00 15,000,000.00 ~~~ij,qp;jll!O.oo 50,000,000.00 10,000,000.00 10,000,000.00 .to,o(IM~J})o!l 10,000,000.00 5,000,000.00 10,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 5,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 14,121,000.00 11,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 54,000,000.00 100.000000 54,000,000.00 . s4,o®;ooil:lio:Y;<<: · .. ·· lOO.O!JOQO,fl; ; · . ·:;}:it' 54,000,000.00 50,000,000.00 100.000000 so,ooo,ooe).llo 11111.000000 5,000,000.00 !00.000000 s,ooo,IJ~~-<!o ?•11 . Joo.oooooo 560,000.00 !00.000000 ssb,Oilo.oo . •· · .:;$;•~: ;1Do.oooooo 100.130000 100.280000 100.310000 100.310000 100.130000 100.280000 100.130000 100.310000 100.130000 100.230000 100.280000 100.130000 100.130000 100.280000 100.280000 100.310000 100.180000 100.190000 100.280000 50,000,000.00 SOAIOO,OOO.OO s,ooo,ooo.oo s,ooo,ooo.oo 560,000.00 560,000.00 . 10,013,000.00 10,028,000.00 10,031,000.00 15,046,500.00 15,019,500.00 15,042,000.00 15,019,500.00 15,046,500.00 20,026,000.00 15,034,500.00 15,042,000.00 20,026,000.00 25,032,500.00 25,070,000.00 20,056,000.00 15,046,500.00 15,027,000.00 10,019,000.00 15,042,000.00 10,069,140.63 10,022,265.63 10,019,140.63 15,043,359.38 15,086,718.75 15,045,703.13 15,086,718.75 15,045,703.13 20,115,625.00 15,109,570.31 15,039,843.75 20,108,593.75 25,131,835.94 25,089,843.75 20,076,562.50 15,059,765.63 15,006,445.31 10,006,640.63 15,059,179.69 15,062,606.70 100.280000 15,042,000.00 3t&;;t.ss.;:z.t~2.ll9 .too;2:;1.n~;c:·s:r311 ; ~1s,1o9,soo.oo . · 49,900,000.00 100.000000 9,985,066.67 99.968750 9,986,333.33 99.968750 :;~{;{6!J,$71,40CI.oll· .. :/££§;j"',!j~~11!i:i:·· Pf"J8 9,990,300.00 5,029,450.00 10,061,850.00 10,054,100.00 5,030,400.00 4,990,300.00 5,000,000.00 5,004,700.00 5,000,000.00 10,102,700.00 5,000,000.00 9,973,100.00 4,998,000.00 5,027,800.00 14,118,881.85 11,022,330.00 5,028,775.00 5,000,000.00 5,000,000.00 101.156250 100.531250 !00.531250 100.531250 100.531250 100.781250 101.250000 100.281250 100.031250 100.500000 101.625000 101.625000 100.343750 101.843750 100.187500 100.781250 100.625000 100.0937SO 100.093750 50,000,000.00 9,996,875.00 9,996,875.00 .. · .6~,jjlla;t~9:te~ 10,115,625.00 5,026,562.50 10,053,125.00 10,053,125.00 5,026,562.50 5,039,062.50 5,062,500.00 5,014,062.50 5,001,562.50 10,050,000.00 5,081,250.00 10,162,500.00 5,017,187.50 5,092,187.50 14,147,476.88 11,085,937.50 5,031,2SO.OO 5,004,687.50 5,004,687.50 0.00 0.00 0.00 o.oo 0.00 o.oo 0.00 o.oo ·56,140.63 5,734.37 11,859.37 3,140.62 ·67,218.75 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3134G2QF2 3134G2QS4 3134G2PT3 3134G2UP5 3134G2WB4 3134G2WJ7 3134G2VSS 3134G2WB4 3134G2WU2 3134G2YB2 3134G2YD8 3134G2YD8 3134G2Y82 3134G2Y82 3134G2YK2 3134G2YK2 3134G2ZF2 3134G2ZJ4 3134G2YM8 3134G2ZN5 3137EACK3 3134G2YJ5 3134G2A36 3!34G2C83 3134G2892 3134G2D74 3134G2H39 3134G2D66 3134G2D66 3134G2G48 3134G2ZBI 3134G2L34 3134G2N81 3134G2L34 3134G2K84 3134G2L34 3134G2L34 3134G2N81 3134G2YJ5 3134G2T28 3134G2Q62 3134G2U91 3134G2T69 3134G2U42 3134G2V41 3!34G2V41 3134G2W40 3134G2W40 3!34G2W40 3134G2W40 3134G2W40 3137EACY3 3137EACY3 3134G2W99 3!34G2W73 3134G2Y89 3134G2Y55 3134G22H4 3134G22H4 3134G22H4 FHLMC 3YrNc6MoE FHLMC 2.5YrNc6MoE FHLMC 2YrNc6MoE FHLMC 3YrNc6MoE FHLMC 3YrNc3Mo8 FHLMC SYrNc!YrB FHLMC 5YrNc3Mo8 FHLMC 5YrNc6Mo8 FHLMC 3.5YrNc6MoB FHLMC 5YrNc3MoB FHLMC 2YrNc6MoB FHLMC 2YrNc3MoB FHLMC 5YrNc6MoB FHLMC 5YrNc6MoB FHLMC 2YrNc3Mo8 FHLMC 2YrNc3Mo8 FHLMC 2YrNc!Yrf FHLMC 2YrNc!YrE FHLMC 5YrNc6MoB FHLMC 5YrNc3MoB FHLMC 3YrNc6Mo8 FHLMC 5YrNc3MoB FHLMC liMo FHLMC 3Yr FHLMC 2YrNc6MoB FHLMC 5YrNc6MoB FHLMC 2YrNc3MoB FHLMC 2YrNc3MoB FHLMC 3YrNc6Mo8 FHLMC 2.5YrNc6MoB FHLMC 2.5YrNc6MoB FHLMC 5YrNc6MoB FHLMC 2YrNc6MoB FHLMC 2YrNc6Mo8 FHLMC 5YrNc6Mo8 FHLMC 2YrNc6MoB FHLMC 3YrNc6MoB FHLMC 2YrNc6MoB FHLMC 2YrNc6MoB FHLMC 5YrNc6MoB FHLMC 3Yr FHLMC 3YrNc6MoB FHLMC 2YrNc6Mo8 FHLMC 5YrNc6MoB FHLMC 5YrNc6MoB FHLMC 2Yr FHLMC 2YrNc3MoB FHLMC 2YrNc3MoB FHLMC 3YrNc6MoB FHLMC 3YrNc6Mo8 FHLMC 3YrNc6Mo8 FHLMC 3YrNc6MoB FHLMC 3YrNc6MoB FHLMC 3Yr FHLMC 3Yr FHLMC 5YrNc6MoB FHLMC 2YrNc1YrE FHLMC 3.5YrNcl YrB FHLMC 2YrNc6MoB FHLMC 2YrNc6MoB FHLMC 2YrNc6MoB FHLMC 2YrNc6MoB 07/11/2014 01/13/2014 07/18/2013 07/25/2014 07/21/2014 08/22/2016 08/25/2016 08/24/2016 02/23/2015 08/25/2016 08/22/2013 08/23/2013 08/24/2016 08/24/2016 08/23/2013 08/23/2013 09/06/2013 09/06/2013 09/01/2016 09/06/2016 09/02/2014 09/06/2016 07/27/2012 09/19/2014 09/09/2013 09/02/2016 03/13/2013 09/20/2013 09/29/2014 03/14/2014 03/14/2014 09/28/2016 09/06/2013 09/30/2013 09/29/2016 09/30/2013 09/30/2014 09/30/2013 09/30/2013 09/29/2016 09/19/2014 10/17/2014 10/03/2013 10/13/2016 10/13/2016 10/15/2013 10/25/2013 10/25/2013 10/24/2014 10/24/2014 10/24/2014 10/24/2014 10/24/2014 11/25/2014 11/25/2014 10/13/2016 10/18/2013 04/24/2015 10/25/2013 11/04/2013 11/04/2013 11/04/2013 1.050 .800 .650 1.200 .750 1.750 1.250 1.500 .875 1.250 .600 .500 1.125 1.125 .500 .500 .450 .450 1.000 1.000 .750 1.125 1.125 .500 .550 1.000 .500 .600 .800 .625 .625 1.350 .500 .550 1.250 .550 .750 .550 .550 1.250 .500 .750 .500 1.000 1.125 .375 .600 .600 .800 .800 .800 .800 .800 .750 .750 1.250 .500 1.000 .550 .700 .700 .700 1.050 .881 .650 1.200 .809 1.750 1.250 1.506 .875 1.250 .600 .500 1.125 1.125 .500 .500 .450 .450 1.000 1.000 .750 1.125 .203 .500 .550 1.000 .500 .600 .800 .625 .625 1.360 .550 .550 1.250 .550 .750 .560 .550 1.250 .599 .750 .520 1.010 1.156 .483 .600 .600 .800 .800 .800 .800 .808 .755 .761 1.250 .516 1.007 .550 .700 .700 .700 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 6,250,000.00 10,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 10,000,000.00 10,000,000.00 5,000,000.00 10,000,000.00 10,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 3,350,000.00 5,000,000.00 5,000,000.00 10,000,000.00 10,000,000.00 5,000,000.00 10,000,000.00 20,000,000.00 10,000,000.00 7,020,000.00 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 15,000,000.00 10,000,000.00 5,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 P1g2 10,000,000.00 4,990,000.00 5,000,000.00 5,000,000.00 6,239,062.50 10,000,000.00 5,000,000.00 4,998,500.00 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 10,086,400.00 10,000,000.00 5,000,000.00 10,000,000.00 10,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 3,350,000.00 4,997,500.00 4,995,000.00 10,000,000.00 10,000,000.00 5,000,000.00 10,000,000.00 19,996,000.00 10,000,000.00 7,020,000.00 9,970,700.00 5,000,000.00 4,998,000.00 4,997,500.00 4,992,500.00 14,967,300.00 10,000,000.00 5,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 9,997,500.00 9,998,467.22 4,998,300.00 5,000,000.00 4,998,437.50 4,998,750.00 5,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 100.000000 100.000000 100.000000 100.062500 100.000000 100.875000 100.125000 100.156250 100.031250 100.125000 100.031250 99.843750 100.125000 100.125000 99.843750 99.843750 99.843750 99.843750 100.031250 100.062500 99.843750 100.125000 100.500000 99.687500 99.875000 100.093750 100.062500 99.875000 99.843750 99.843750 99.843750 100.187500 99.875000 99.906250 100.156250 99.906250 99.718750 99.906250 99.906250 100.156250 99.687500 100.000000 99.875000 100.125000 100.250000 99.875000 100.000000 100.000000 99.375000 99.375000 99.375000 99.375000 99.375000 100.187500 100.187500 100.250000 99.906250 100.031250 99.906250 100.062500 100.062500 100.062500 10,000,000.00 5,000,000.00 5,000,000.00 5,003,125.00 6,250,000.00 10,087,500.00 5,006,250.00 5,007,812.50 10,003,125.00 5,006,250.00 5,001,562.50 4,992,187.50 5,006,250.00 5,006,250.00 4,992,187.50 4,992,187.50 9,984,375.00 4,992,187.50 5,001,562.50 5,003,125.00 4,992,187.50 10,012,500.00 10,050,000.00 9,968,750.00 4,993,750.00 10,009,375.00 10,006,250.00 9,987,500.00 4,992,187.50 4,992,187.50 3,344,765.63 5,009,375.00 4,993,750.00 9,990,625.00 10,015,625.00 4,995,312.50 9,971,875.00 19,981,250.00 9,990,625.00 7,030,968.75 9,968,750.00 5,000,000.00 4,993,750.00 5,006,250.00 5,012,500.00 14,981,250.00 10,000,000.00 5,000,000.00 9,937,500.00 4,968,750.00 4,968,750.00 4,968,750.00 9,937,500.00 10,018,750.00 5,009,375.00 5,012,500.00 4,995,312.50 5,001,562.50 4,995,312.50 5,003,125.00 5,003,125.00 5,003,125.00 0.00 10,000.00 0.00 3,125.00 10,937.50 87,500.00 6,250.00 9,312.50 3,125.00 6,250.00 1,562.50 -7,812.50 6,250.00 6,250.00 -7,812.50 -7,812.50 -15,625.00 -7,812.50 1,562.50 3,125.00 -7,812.50 12,500.00 -36,400.00 -31,250.00 -6,250.00 9,375.00 6,250.00 -12,500.00 -7,812.50 -7,812.50 -5,234.38 11,875.00 -1,250.00 -9,375.00 15,625.00 -4,687.50 -28,125.00 -14,750.00 -9,375.00 10,968.75 -1,950.00 0.00 -4,250.00 8,750.00 20,000.00 13,950.00 0.00 0.00 -62,500.00 -31,250.00 -31,250.00 -31,250.00 -60,000.00 20,282.78 11,075.00 12,500.00 -3,125.00 2,812.50 -4,687.50 3,125.00 3,125.00 3,125.00 2.005 1.533 2.507 2.517 4.412 4.485 4.449 3.086 4.485 1.628 1.633 4.498 4.498 1.633 1.633 1.670 1.670 4.534 4.547 2.632 4.531 .569 2.691 1.676 4.536 1.193 1.705 2.704 2.180 2.180 4.562 1.668 1.737 4.578 1.737 2.712 1.737 1.737 4.578 2.690 2.756 1.744 4.649 4.632 1.779 1.802 1.802 2.773 2.773 2.773 2.773 2.773 2.861 2.861 4.617 1.785 3.246 1.803 1.825 1.825 1.825 2.529 2.038 1.548 2.567 2.556 4.647 4.655 4.652 3.151 4.655 1.644 1.647 4.652 4.652 1.647 1.647 1.685 1.685 4.674 4.688 2.674 4.688 .573 2.721 1.693 4.677 1.200 1.723 2.748 2.203 2.203 4.748 1.685 1.751 4.751 1.751 2.751 1.751 1.751 4.751 2.721 2.797 1.759 4.789 4.789 1.792 1.819 1.819 2.816 2.816 2.816 2.816 2.816 2.904 2.904 4.789 1.800 3.315 1.819 1.847 1.847 1.847 3134G23J9 3134G23M2 3134G23M2 3134G3AL4 3137EACZO 3134G3BQ2 3134G3BF6 3134G3BS8 3134G3BS8 3134G3BL3 3134G3BL3 3134G3BL3 3134G3BL3 3134G3BL3 3134G3BA7 3134G3BL3 3134G3CVO 3134G3DP2 3134G3EB2 3134G3DY3 3134G3EN6 3134G2U42 FHLMC 2YrNc6MoB FHLMC 2YrNc6MoB FHLMC 2YrNc6MoB FHLMC 1YrNc3MoB FHLMC 2Yr FHLMC 5YrNc1 YrB FHLMC 2Yr FHLMC 2YrNc1YrE FHLMC 2YrNclYrE FHLMC 3YrNclYrS FHLMC 3YrNc1YrB FHLMC 3YrNc1YrB FHLMC 3YrNc1 YrS FHLMC 3YrNc1YrB FHLMC 2YrNcl YrB FHLMC 3YrNc1 YrB FHLMC 3YrNc1YrS FHLMC 3.5YrNc1 YrB 3.5YrNc2YrE FHLMC 3YrNc1YrS FHLMC 3.5YrNc2YrE FHLMC l.SYr ,iJtt.!',c' FNMA DISC NOTES 313588M85 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FHLB DISC NOTES 313384ZN2 313384C80 313384D71 313384F61 313384M71 FHLB BONDS 3133XVNT4 3133XWKU2 3133XXTU1 3133XYHDO 3133702E7 FHLB DISC NOTE 07/18/2012 .160 .160 10,000,000.00 9,985,155.56 99.983417 9,998,341.67 FHLB DISC NOTE 08/21/2012 .200 .200 30,000,000.00 29,939,500.00 99.980583 29,994,175.00 FHLB DISC NOTE 08/28/2012 .170 .170 20,000,000.00 19,965,716.66 99.953333 19,990,666.67 FHLB DISC NOTE 09/12/2012 .170 .170 10,000,000.00 9,982,811.11 99.950417 9,995,041.67 FHLB DISC NOTE 10/31/2012 .170 .170 50,000,000.00 49,914,291.67 99.937500 49,968,750.00 ;;~'l>\t:sd;::; ; .111, :J.n.; t2o,ooo,IIOII;!t9IU. u9,787d:t~1'@;;;: :yt oo.9ssl1,u u9,946;9ts;ot, FHLB 3Yr FHLB 2.5Yr FHLB 2.25Yr FHLB FHLB 12/14/2012 06/08/2012 07/12/2012 06/14/2013 04/02/2012 1.750 1.375 1.260 1.625 .750 1.612 1.212 1.260 1.198 .750 5,000,000.00 5,000,000.00 5,000,000.00 15,000,000.00 5,000,000.00 p"f'52 5,020,050.00 5,017,100.00 5,000,000.00 15,185,100.00 5,000,000.00 101.375000 100.531250 100.562500 101.843750 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5,001,562.50 5,001,562.50 19,987,500.00 10,003,125.00 10,000,000.00 10,000,000.00 10,003,125.00 15,000,000.00 4,996,875.00 15,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 14,990,625.00 10,003,125.00 15,004,687.50 15,000,000.00 10,003,125.00 14,995,312.50 9,996,875.00 9,996,875.00 15,004,687.50 24,984,375.00 10,003,125.00 10,000,000.00 10,003,125.00 9,993,750.00 9,993,750.00 10,003,125.00 9,993,750.00 4,996,875.00 10,003,125.00 15,000,000.00 10,000,000.00 15,000,000.00 9,993,750.00 9,993,750.00 15,004,687.50 14,990,625.00 9,000,000.00 8,002,500.00 9,993,750.00 9,993,750.00 500.00 -4,687.50 6,250.00 0.00 7,500.00 0.00 9,375.00 3,125.00 0.00 0.00 0.00 -1,392.50 1,562.50 6,250.00 3,617.95 1,562.50 -9,900.00 3,125.00 500.00 500.00 3,125.00 0.00 -2,975.00 0.00 0.00 0.00 0.00 0.00 -9,375.00 3,125.00 4,687.50 0.00 3,125.00 -4,687.50 -3,125.00 2,575.00 4,687.50 -5,050.00 3,125.00 0.00 3,125.00 -2,609.34 -6,250.00 3,125.00 -3,150.00 -2,925.00 136.40 -1,381.80 0.00 -1,350.00 -4,250.00 -6,250.00 -6,862.50 -8,625.00 0.00 -1,020.00 -5,450.00 -5,950.00 .814 .812 .815 .930 .753 .873 .873 .873 .881 .817 .873 .849 .892 .900 1.900 .892 .871 1.041 1.384 1.384 .931 1.384 .910 1.384 1.384 1.384 .931 .931 1.404 1.013 1.013 1.370 1.013 1.419 .959 1.345 1.408 1.025 1.516 1.461 1.516 1.025 .947 1.466 1.025 1.025 1.466 1.409 1.486 1.409 1.025 1.025 1.467 1.025 1.486 1.467 .949 .990 .819 .816 .819 .937 .759 .879 .879 .879 .888 .822 .879 .855 .899 .907 1.915 .899 .877 1.049 1.389 1.389 .937 1.389 .915 1.389 1.389 1.389 .937 .937 1.408 1.022 1.022 1.375 1.022 1.425 .964 1.351 1.414 1.033 1.523 1.468 1.523 1.033 .953 1.474 1.033 1.033 1.474 1.414 1.493 1.414 1.033 1.033 1.474 1.033 1.493 1.474 .953 .995 313374VY3 313376GT6 31337SQX8 313376BE4 313376KL8 313376ML6 313376MAO 313375FJ1 313375FJ1 313376MK8 313376MP7 313376036 313376ML6 313376MP7 313376ML6 313376MP7 FHLB 13Mo FHLB l.SYr FHLB 9Mo FHLB 9Mo FHLB l.SYr FHLB 1 YrNc6MoB FHLB 13MoNc9MoE FHLB 8Mo FHLB 8Mo FHLB 1 YrNc3MoB FHLB 1Yr FHLB l.SYr FHLB 1 YrNc6MoB FHLB 1Yr FHLB 1YrNc6MoB FHLB 1Yr 01/29/2013 05/30/2013 09/26/2012 09/10/2012 06/21/2013 12/28/2012 01/08/2013 08/24/2012 08/24/2012 01/08/2013 01/03/2013 05/16/2013 12/28/2012 01/03/2013 12/28/2012 01/03/2013 .375 .350 .240 .140 .400 .250 .250 .220 .220 .300 .210 .300 .250 .210 .250 .210 .452 .203 .330 .153 .143 .361 .250 .250 .147 .147 .300 .210 .290 .250 .204 .250 .204 .. 397 10,355,000.00 5,000,000.00 18,000,000.00 7,000,000.00 10,000,000.00 10,000,000.00 15,000,000.00 10,000,000.00 15,000,000.00 25,000,000.00 10,000,000.00 10,000,000.00 10,000,000.00 5,000,000.00 10,000,000.00 5,000,000.00 2,2lo~6?'J!·~~·DO 10,375,399.35 5,001,450.00 100.093750 100.000000 18,012,582.00 100.000000 6,999,839.00 99.937500 10,005,900.00 100.062500 10,000,000.00 99.968750 15,000,000.00 99.968750 10,005,140.00 100.000000 15,007,710.00 100.000000 25,000,000.00 99.968750 10,000,000.00 99.937500 10,001,400.00 99.937500 10,000,000.00 99.968750 5,000,330.00 99.937500 10,000,000.00 99.968750 5,000,330.00 99.937500 >:C'7:t;Zl2,~S,~~~tiiJI';!lOO.lD9763 . 10,364,707.81 5,000,000.00 18,000,000.00 6,995,625.00 10,006,250.00 9,996,875.00 14,995,312.50 10,000,000.00 15,000,000.00 24,992,187.50 9,993,750.00 9,993,750.00 9,996,875.00 4,996,875.00 9,996,875.00 4,996,875.00 :a,zis;o9&;498.44 -10,691.54 -1,450.00 -12,582.00 -4,214.00 350.00 -3,125.00 -4,687.50 -5,140.00 -7,710.00 -7,812.50 -6,250.00 -7,650.00 -3,125.00 -3,455.00 -3,125.00 -3,455.00 511,97(1.34 1.074 1.409 .735 .691 1.467 .990 1.016 .646 .646 1.016 1.003 1.371 .990 1.003 .990 1.003 .9.24 1.082 1.414 .740 .696 1.474 .995 1.025 .649 .649 1.025 1.011 1.375 .995 1.011 .995 1.011 .933 FFCB DISC NOTES 313312UR9 313312WG1 FFCB BONDS 31331GNQ8 31331GYP8 31331GYP8 31331GYP8 31331JQUO 31331JY56 31331J6A6 31331J6A6 31331J7A5 31331J7A5 31331J6A6 31331KET3 31331KGN4 31331KHV5 31331KKT6 31331KEV8 31331KNH9 31331KPC8 31331KQU7 31331KPD6 31331KML1 31331KMM9 31331KMM9 31331KUW8 31331KWN6 31331KZJ2 31331KB82 31331KZK9 31331KK74 31331KK74 FFCB DISC NOTE FFCB DISC NOTE FFCB FFCB 3Yr FFCB 3Yr FFCB 3Yr FFCB 3Yr FFCB 2Yr FFCB 3Yr FFCB 3Yr FFCB l.SYr FFCB l.SYr FFCB 3Yr FFCB 2.5Yr FFCB 3Yr FFCB 5Yr FFCB 1Yr FFCB 1Yr FFCB 1Yr FFCB 2.2Yr FFCB l.SYr FFCB 2.5Yr FFCB 1Yr FFCB l.SYr FFCB l.SYr FFCB 2.25YrNc3MoA FFCB 18MoNc3MoA FFCB 2Yr 03/23/2012 05/01/2012 .270 .240 .271 .241 25,000,000.00 7,000,000.00 24,934,000.00 6,983,013.33 100.000000 100.000000 25,000,000.00 7,000,000.00 66,000.00 16,986.67 .227 .333 .227 .334 ·: :£•"! ;;; • · . i~C!3 .264 32,o~o,ooo;~y. :U,917,013.33 ..... 1oo.oooooo '"'·).]~ooo,ooo.oo 82,986.67 .2so .2so 04/24/2012 06/18/2012 06/18/2012 06/18/2012 06/03/2013 11/02/2012 12/23/2013 12/23/2013 07/10/2012 07/10/2012 12/23/2013 09/23/2013 04/07/2014 04/20/2016 05/16/2012 06/22/2012 06/13/2012 08/20/2012 01/07/2013 11/20/2013 06/01/2012 12/03/2012 12/03/2012 11/18/2013 02/25/2013 09/23/2013 2.250 2.125 2.125 2.125 1.600 .400 1.300 1.300 .500 .500 1.300 .980 1.400 .355 .210 .290 .240 .250 .400 .625 .210 .350 .350 .500 .350 .350 1.762 2.210 2.210 1.374 .752 .540 1.300 1.300 .500 .500 1.184 1.029 1.400 .366 .224 .244 .240 .250 .400 .700 .213 .376 .340 .522 .383 .400 5,000,000.00 5,000,000.00 3,000,000.00 8,500,000.00 10,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 9,205,000.00 5,000,000.00 10,000,000.00 10,000,000.00 10,000,000.00 25,000,000.00 5,000,000.00 20,000,000.00 20,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 5,000,000.00 5,000,000.00 5,000,000.00 10,000,000.00 5,066,900.00 4,988,000.00 2,992,800.00 8,637,785.00 10,211,890.00 9,972,900.00 5,000,000.00 5,000,000.00 10,000,000.00 9,205,000.00 5,015,550.00 9,988,000.00 10,000,000.00 9,995,000.00 24,996,600.00 5,002,450.00 20,000,000.00 20,000,000.00 5,000,000.00 4,991,100.00 4,999,850.00 9,996,600.00 5,000,650.00 4,997,500.00 4,997,500.00 9,990,100.00 100.656250 100.875000 100.875000 100.875000 101.781250 100.125000 101.718750 101.718750 100.156250 100.156250 101.718750 101.031250 102.000000 100.125000 100.031250 100.062500 100.031250 100.000000 100.125000 100.406250 100.031250 100.093750 100.093750 100.000000 100.000000 99.937500 5,032,812.50 5,043,750.00 3,026,250.00 8,574,375.00 10,178,125.00 10,012,500.00 5,085,937.50 5,085,937.50 10,015,625.00 9,219,382.81 5,085,937.50 10,103,125.00 10,200,000.00 10,012,500.00 25,007,812.50 5,003,125.00 20,006,250.00 20,000,000.00 5,006,250.00 5,020,312.50 5,001,562.50 10,009,375.00 5,004,687.50 5,000,000.00 5,000,000.00 9,993,750.00 -34,087.50 55,750.00 33,450.00 -63,410.00 -33,765.00 39,600.00 85,937.50 85,937.50 15,625.00 14,382.81 70,387.50 115,125.00 200,000.00 17,500.00 11,212.50 675.00 6,250.00 0.00 6,250.00 29,212.50 1,712.50 12,775.00 4,037.50 2,500.00 2,500.00 3,650.00 .312 .460 .460 .462 1.405 .833 1.946 1.946 .522 .522 1.947 1.704 2.217 4.275 .375 .476 .451 .635 1.012 1.870 .418 .920 .920 1.868 1.145 1.719 .315 .466 .466 .466 1.425 .841 1.981 1.981 .526 .526 1.981 1.732 2.268 4.307 .375 .477 .452 .638 1.022 1.890 .419 .926 .926 1.885 1.156 1.732 FFCB 2Yr 10/03/2013 .350 .400 5,000,000.00 4,995,050.00 99.937500 4,996,875.00 1,825.00 1.747 1.759 FFCB 1.25Yr 11/23/2012 .240 .254 5,000,000.00 4,999,200.00 99.968750 4,998,437.50 ·762.50 .893 .899 FFCB 3YrNc1YrA 11/07/2014 .850 .850 5,000,000.00 5,000,000.00 100.250000 5,012,500.00 12,500.00 2.807 2.855 FFCB 3YrNc1YrA 11/07/2014 .850 .850 5,000,000.00 5,000,000.00 100.250000 5,012,500.00 12,500.00 2.807 2.855 . :::;:0:\\\f .\ :.;;,\?r::t:. · ·· ·· .•. :;lj,I!J. · --~~· :145,7~~.oo~~-&~Y\: . 246,04(1,42s.oo. . . <":<ilL, ;tl!l!-~2~~ .. z;::~!>·749,695.3:l . 709,270.31 >;, ua2 u9s p"f'96 FMAC DISC NOTES 3!315KWW6 3!315KXU9 31315KYT1 3!315KZFO 3!315KYW4 FARMER MAC 3!315PVUO 3!315PVUO 3!315PVUO 3!315PSH3 MUNIBONDS 20775BND4 041042RKO 93974CWW6 649791EB2 80!320AV4 677521LG9 677521LH7 880541QG5 646039TR8 COMM PAPER 36959HC62 36959HD46 36959HEFO NCDS 78009NAQ9 FMAC DISC NOTE FMAC DISC NOTE FMAC DISC NOTE FMAC DISC NOTE FMAC DISC NOTE FARMER MAC GTD FARMER MAC GTD FARMER MAC GTD FARMER MAC GTD CT HFA ARKANSAS ST WASHINGTON ST STATE OF NEW YORK COUNTY OF SANTA BARBARA OHIO STATE GO OHIO STATE GO STATE OF TENNESSEE NEW JERSEY ST TRAN GE CAPITAL CORP GE CAPITAL CORP GE CAPITAL CORP ROYAL BANK OF CANADA 05/15/2012 06/06/2012 06/29/2012 07/11/2012 07/02/2012 05/10/2013 05/10/2013 05/10/2013 04/25/2013 OS/1S/2012 07/01/2012 02/01/2012 09/01/2012 06/29/2012 05/01/2013 05/01/2014 08/01/2012 06/21/2012 03/06/2012 04/04/2012 05/15/2012 02/27/2012 .210 .210 .220 .210 .210 .212 .760 .760 .760 .400 .616':'. 2.180 1.250 .630 .650 .270 .740 1.190 .500 2.000 .922 .330 .350 .380 .35'1 .180 78009NAV8 ROYAL BANK OF CANADA 03/05/2012 .180 78009NBD7 ROYAL BANK OF CANADA 04/16/2012 .220 ~.r#n~~iotat .sgs 1. The market value and yield of short-term money market securities are based on purchase price. 2. Average life is the number of years until principal is returned at maturity, weighted by market value. 3. Local Agency Obligations have variable rate coupons, spread to Pool. 4. Modified Duration. The percentage price change of a securiy for a given change in yield. The higher the modified duration of a security, the higher the risk. .210 .210 .220 .210 .210 .212 .760 .760 .750 .400 .613 2.180 1.240 .630 .650 .270 .740 1.190 .301 .250 .465 .331 .351 .381 .358 25,000,000.00 20,000,000.00 20,000,000.00 8,000,000.00 50,000,000.00 123,000,000.00 5,000,000.00 5,000,000.00 12,500,000.00 15,000,000.00 ~?!.~~.o;ooo.oo 850,000.00 1,440,000.00 9,960,000.00 23,040,000.00 25,000,000.00 5,140,000.00 2,000,000.00 6,265,000.00 25,000,000.00 98,695,000.00. 35,000,000.00 30,000,000.00 50,000,000.00 i1S,OOO,OOO,OO .180 50,000,000.00 .180 50,000,000.00 .220 50,000,000.00 w,~s~~~, """' ' s:44o;5s6,oo!l:oo' , 24,946,770.83 19,957,416.67 19,955,511.11 7,982,966.67 49,908,416.67 t2z~sl~ost:gs 5,000,000.00 5,000,000.00 12,502,375.00 15,000,000.00 37 ,50~,375,00 c' ·~'· A • ,':<._', ' , " 850,000.00 1,440,273.60 9,960,000.00 23,040,000.00 25,000,000.00 5,140,000.00 2,000,000.00 6,274,522.80 25,225,750.00 98,930,$46.4!' 34,941,929.17 29,946,625.00 49,894,444.44 H<~.rsz,99s.&l 50,000,000.00 100.000000 100.000000 100.000000 99.968750 99.968750 99.985264 100.312500 100.312500 100.312500 100.000000 100.019000 100.000000 100.000000 100.000000 100.000000 100.000000 100.152000 100.903000 100.:Z3$66i 99.927778 99.864222 99.778750 99.846403 25,000,000.00 20,000,000.00 20,000,000.00 7,997,500.00 49,984,375.00 122,98l,S7.s;oo 5,015,625.00 5,015,625.00 12,539,062.50 15,014,062.50 37,584,315.00 850,000.00 1,440,273.60 9,960,000.00 23,040,000.00 25,000,000.00 5,140,000.00 2,000,000.00 6,274,522.80 25,225,750.00 98,930,546.40 34,974,722.22 29,959,266.67 49,889,375.00 114,8~3;?63.89 53,229.17 42,583.33 44,488.89 14,533.33 75,958.33 230,793.05 15,625.00 15,625.00 36,687.50 14,062.50 82,000.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 o.oo 32,793.05 12,641.67 ·5,069.44 40,36s;:zs .372 .432 .494 .527 .503 .465 1.348 1.348 1.348 1.313 1.334 .368 .497 .087 .663 .500 1.324 2.293 .582 .470 .572 .180 .259 .371 .284 100.000000 50,000,000.00 0.00 .159 .373 .433 .496 .529 .504 .466 1.359 1.359 1.359 1.318 1.343 .373 .501 .088 .671 .496 1.334 2.334 .586 .474 .575 .181 .260 .373 ,285 .159 50,000,000.00 100.000000 50,000,000.00 0.00 .178 .178 50,000,000.00 100.000000 50,000,000.00 0.00 .292 .293 1SQ,QQO,OQO;Q0 1QQ,~";"";i,i' 1SD,OQQ,000;2,1!tA·;,,d"kw•-"~mw"~'-~~;~-•~=-• .210 , ~~ :·/~,~44,67~;~i,~~7~,,«,,»~' '"'~,, '~""iOO~ii8i~:~;f;t~?J;~:44B;iGS:73;t.S_g.}~~(~~;;432;1Si02 1.:1.82 1.303 P2'Q7 F U ~nzp..&Q.ttce: The Treasurer's Pooled Invest-ment Fund was in FULL COMPLIANCE with the Treasurer's Statement of Investment Policy. The County's Investment Policy is more restrictive than the California Government Code. This policy is reviewed annually by the County's Investment Oversight Committee and approved by the County Board of Supervisors. Investment Category MUNICIPAL BONDS (MUNI) U.S. TREASURIES LOCAL AGENCY OBLIGATIONS (LAO) FEDERAL AGENCIES COMMERCIALPAPER (CP) CERTIFICATE & TIME DEPOSITS (NCO & TCD) REPURCHASE AGREEMENTS (REPO) REVERSE REPOS MEOIUMTERM NOTES (MTNO) CAL TRUST SHORT TERM FUND MONEY MARKET MUTUAL FUNDS (MMF) LOCAL AGENCY INVESTMENT FUND (LAIF) CASH/DEPOSIT ACCOUNT 5 YEARS NO LIMIT SYEARS NO LIMIT 5 YEARS NO LIMIT 270DAYS 40% 5 YEARS 30% 1 YEARS NO LIMIT 92 DAYS 20% S YEARS 30% NA NA 60 DAYS 111 200/o NA NA NA NA NA NA AAA A1/P1 NA NA NA A NA AAA/Aaal2l 1 Mutual Funds maturity may be interpreted as weighted average maturity not exceeding 60 days. 21 5 YEARS 3 YEARS 5 YEARS 270DAYS 1 YEAR 45 DAYS 60 DAYS 3 YEARS DAILY LIQUIDITY DAILY LIQUIDITY NA 100% NA 2.5% INVESTMENT GRADE 100% NA 40% A1/P1/F1 25% Combined A1/P1/F1 40% max, 25%in term repo over 7days 10% 20% 1.0% 20% Max $50 million NA A1/P1/F1 NA AA/Aa2/AA NA AAA by 20f3 RATINGS AGC. NA NA ·iFl'f,f%<, ... ·",i;t; Rhrersra~; ,,,,, \;·.·~t· .. Q; '.' . :.;a~Ortn;I;!~P ~ix&\ .. 1.81% 5.79% 0.01% 85.40% 2.11% 2.76% 0.00% 0.00% 0.00% 0.99% 0.11% 0.92% 0.10% Page 18 County of Riverside Treasurer-Tax Collector Capital Markets 4080 Lemon Street, 4th Floor Riverside, CA 92502-2205 www. treasurer-tax.co.riverside.ca. us (951) 955-3967 THIS COMPLETES THE REPORT REQUIREMENTS OF CALIFORNIA GOVERNMENT CODE 53646 22 AGENDA ITEM 78 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 2, 2012 TO: Riverside County Transportation Commission FROM: Matt Wallace, Procurement Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Single Signature Authority Report STAFF RECOMMENDATION: This item is for the Commission to receive and file the Single Signature Authority report for the second quarter ended December 31 , 2011 . BACKGROUND INFORMATION: The attached report details all professional services and administrative contracts that have been executed for the second quarter ended December 31, 2011, under the Single Signature Authority granted to the Executive Director by the Commission. The unused capacity at December 31, 2011, is $406,815. Attachment: Single Signature Authority Report as of December 31, 2011 Agenda Item 78 23 CONSULTANT AMOUNT AVAILABLE July 1, 2011 Transportation Management & Design, Inc. Joanna Capelle GCAP Services, Inc. MGB Construction M K Consutting Beacon Economics AMOUNT USED AMOUNT USED AMOUNT REMAINING through December 31, 2011 Matt Wallace Prepared by SINGLE SIGNATURE AUTHORITY AS OF DECEMBER 31, 2011 DESCRIPTION OF SERVICES Strategic Analysis Services-Support SR-91 CIP Project Grant Funding Consulting Services Disadvantaged Business Enterprise Consulting Services Asphalt Repair Services Ride share Incentive Program Analysis & Development Services Sales Tax Reveune Projections Theresia Trevino Reviewed by Note: Shaded area represents new contracts listed in the second quarter. ORIGINAL CONTRACT AMOUNT $500,000.00 35,000.00 6,500.00 20,000.00 3,685.00 10,000.0Q 18,000.00 93,185.00 93,185.00 $406,815.00 24 PAID AMOUNT 25,147.70 1,430.00 0.00 3,685.00 1,316.60 0.00 REMAINING CONTRACT AMOUNT 9,852.30 5,070.00 20,000.00 0.00 8,683.40 18,000.00 J \2012102 Februaryi?B.MW Comm S1ngleS1gn Att1 xlsx AGENDA ITEM 7C ...._____ ___ ----- RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 2, 2012 TO: Riverside County Transportation Commission FROM: Matt Wallace, Procurement Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Federal Highway Administration Disadvantaged Business Enterprise Program and Proposed Overall Project Goal STAFF RECOMMENDATION: This item is for the Commission to: 1) Adopt Resolution No. 12-005, "Resolution of the Riverside County Transportation Commission Adopting Its Disadvantaged Business Enterprise Program and Overall Disadvantaged Business Enterprise Project Goal (49 CFR Part 26) As It Applies to Funding Received Directly from the Federal Highway Administration"; 2) Adopt the Commission's Disadvantaged Business Enterprise (DBE) Program for the State Route 91 Corridor Improvement Project (SR-91 CIP), a Federal Highway Administration (FHWA) assisted contract. The DBE program includes a proposed 2.9% overall DBE project goal for the SR-91 CIP. The goal is wholly race-neutral and will be finalized following the required 45-day public comment period, which concludes on or about March 20, 2012; 3) Authorize the Executive Director to execute the Commission's DBE Program and Policy Statement on behalf of the Commission for submission to FHWA; 4) Post the proposed overall DBE project goal to allow for public participation as required by 49 CFR, Part 26, make the DBE program document available for review to the public for 30 days, and receive comments for 45 days; and 5) Submit the DBE program document and overall DBE project goal methodology to the FHWA for approval. BACKGROUND INFORMATION: The Commission has previously implemented DBE requirements, including DBE participation goals, on its contracts as a sub-recipient of Caltrans FHWA funding using Caltrans stipulated DBE requirements. However, the Commission has not previously awarded contracts funded with direct financial assistance from the FHWA. In implementing the SR-91 CIP design-build contract, the Commission is anticipating direct assistance in the form of Transportation Infrastructure Finance and Innovation Act (TIFIA) funding from the FHWA. Agenda Item 7C 25 In accordance with Title 49 Code of Federal Regulations (CFR) Part 26, the Commission must implement a DBE program and overall DBE project goal as a condition of receiving direct financial assistance from the FHWA. The DBE Program and Policy Statement has been developed by the Commission to address this requirement and will be implemented by the Commission's DBE Liaison Officer, who is the Commission's Procurement Manager. The DBE program will be implemented in a wholly race-neutral fashion to conform with directives issued by the FHWA related to the Ninth Circuit U.S. Court of Appeals (Ninth Circuit) decision in the Western States Paving Co. vs. Washington State Department of Transportation case. These directives prohibit any FHWA recipient in the jurisdiction of the Ninth Circuit, including the Commission, from using race- conscious contract DBE goals on FHWA-assisted contracts if the recipient does not possess evidence of discrimination in its transportation contracting program. The Commission does not possess such evidence of discrimination and for this reason will be implementing a wholly race-neutral DBE program. Under a wholly race-neutral DBE program, contracts let by the Commission will not include a DBE participation goal as a condition of award. Rather, in accordance with 49 CFR Part 26, the Commission will implement extensive small business outreach efforts and require the design-builder of the SR-91 CIP to develop a DBE performance plan. The plan will define the design-builder's planned efforts to provide small businesses, including DBEs, subcontracting opportunities on the SR-91 CIP. The proposed race-neutral overall DBE project goal is 2.9%. The goal is based on the relative availability of DBE firms in the Commission's geographic market area (defined as Riverside County, San Bernardino County, and Orange County). The established market area represents where the Commission anticipates a majority of contractors and subcontractors will be located. Data to determine this relative availability was extracted from the California Unified Certification Program DBE Directory of Certified Firms and the 2009 U.S. Census Bureau County Business Pattern Database. The analysis attached to this staff report details the methodology utilized in developing the overall project goal for the SR-91 CIP. As required, the proposed overall project goal will undergo a public notice and comment period. The public notice will be published in a local newspaper(s) to inform the public of the proposed goal and the rationale for setting the goal. The goal setting document will be available for inspection at the Commission for 30 days following the date of the notice, with a 45-day comment period. Additionally, the Commission will contact several market area small business professional organizations, including minority and women-focused organizations, to present the overall DBE program goal and garner feedback. If there is compelling Agenda Item 7C 26 evidence received during the public comment period that supports a modification to the proposed overall DBE program goal, the Commission will make the appropriate adjustment before submitting its final overall DBE program goal to the FHWA by March 20, 2012. Attachments: 1) RCTC' s DBE Program 2) Resolution No. 1 2-005 Agenda Item 7C 27 ATTACHMENT 1 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM State Route 91 Corridor Improvement Project I. POLICY STATEMENT AND PROGRAM OBJECTIVES Policy Statement (§26.3; §26.7; §26.21; §26.23) The Riverside County Transportation Commission (RCTC) has established and adopted a Disadvantaged Business Enterprise (DBE) Program for the SR-91 Corridor Improvement Project (PROJECT) in accordance with regulations of the U.S. Department of Transportation (DOT), Title 49, Code of Federal Regulations (CFR), Part 26 "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs." RCTC anticipates receiving Federal financial assistance from the DOT, Federal Highway Administration (FHWA), and as a condition of receiving this assistance, RCTC will sign an assurance that it will comply with 49 CFR Part 26. It is the policy of RCTC to ensure that DBEs as defined in 49 CFR Part 26, have an equal opportunity to receive and participate in RCTC'S DOT -assisted contracts, specifically for the PROJECT. It is also our policy to: o Create a level playing field by which DBEs can compete for and perform in RCTC's DOT-assisted contracting opportunities including the PROJECT; o Ensure non-discrimination in the award and administration of all RCTC contracts and subcontracts including the PROJECT; o Ensure that RCTC's DBE Program is narrowly tailored in accordance with applicable law and current legal standards, including the Ninth Circuit Ruling in Western States Paving vs. Washington State Department of Transportation; o Ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBEs on the PROJECT; o Help remove procurement and contracting barriers, which impede DBE and Small Business participation in RCTC DOT -assisted contracts including the PROJECT; o Monitor and enforce Design-Builder (the prime contractor on the PROJECT) compliance in meeting established goal objectives and program requirements; o Assist in the development of DBEs and Small Businesses to increase their ability to compete successfully in the market place outside the DBE Program; and o Ensure RCTC's Design-Builder on the PROJECT and their subcontractors take all necessary and reasonable steps to comply with these policy objectives. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 1 of 15 28 As evidence of RCTC's commitment to pursue these policy objectives, the Executive Director has designated Mr. Matthew Wallace, Procurement Manager, as the DBE Liaison Officer (DBELO). In this capacity Mr. Wallace is responsible for implementing all aspects of the DBE Program. The DBELO has direct access to the Executive Director for DBE-related matters. Implementation of the DBE Program is accorded the same priority as compliance with all other legal obligations incurred by RCTC in its financial assistance agreements with DOT. RCTC will disseminate this policy statement to all of the departments of our organization. Additionally, RCTC will distribute this policy to DBE and non-DBE business communities that perform or are interested in performing work on the PROJECT. Through such efforts, RCTC will ensure DOT-assisted contracting and procurement related processes promote equity in access, consideration and opportunity for DBEs and other small businesses in response to requirements set forth under 49 CFR Part 26; "Participation of Disadvantaged Business Enterprises in U.S. Department of Transportation Programs," effective March 4, 1999, and subsequently issued DOT Directives and Final Rules. Ms. Anne Mayer, Executive Director [Signature of Executive Director] Date Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 2 of 15 29 _____________ ___. II. APPLICABILITY (§26.3; §26.21) RCTC, as a direct recipient of federal funds from the DOT, and as a condition of receiving Federal financial assistance, is required to submit for approval to the DOT Operating Administration from which it receives the majority of its funding, a DBE Program developed in accordance with federal regulations published under 49 CFR Part 26 and subsequent guidance. This DBE Program sets forth the policies and procedures to be implemented by RCTC to ensure that DBEs have an equitable opportunity to participate in RCTC's DOT-assisted contracting program, specifically the PROJECT. In direct response to these regulatory requirements, RCTC hereby establishes a DBE Program, which will: 1. Comply with federal regulations and financial assistance agreements; 2. Meet legal standards for narrow-tailoring requirements; 3. Ensure non-discrimination in the award of DOT-assisted contracts; and 4. Reaffirm RCTC's commitment to fairness and the principles of equal opportunity. In conformance with 49 CFR Part 26, RCTC will continue to carry out its DBE Program until all DOT funds for the PROJECT have been expended. RCTC additionally complies with the California Department of Transportation's (Caltrans') DBE Program on projects on which it is a subrecipient of federal funds through Caltrans. RCTC will advise all applicable DOT Operating Administrations of any significant updates and/or changes to this DBE Program. Ill. DEFINITION OF TERMS (§26.5) Race-Conscious Measure or Program: A program or portion thereof that focuses specifically on assisting only DBEs, including minority and women-owned DBEs, by the development and inclusion of participation goals or Good Faith Effort activities. Race-Neutral Measure or Program: A program or portion thereof that assists all Small Businesses, including DBEs, regardless of ownership status, in successfully participating in RCTC's procurement program. For the purposes of the DBE Program, "race-neutral" includes gender-neutrality. Any other term used in this DBE Program shall have the meaning set forth in 49 CFR Part 26==, attached to this document under Exhibit A, specifically at §26.5. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 3 of 15 30 IV. RESPONSIBILITIES FOR DBE PROGRAM IMPLEMENTATION A. DBE Liaison Officer (§26.25) RCTC has designated the following individual as the DBE Liaison Officer (DBELO): Mr. Matt Wallace Procurement Manager/DBELO Riverside County Transportation Commission (RCTC) 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Telephone: (951) 787-7908; Fax: (951) 787-7906 Email: mwallace@rctc.org , In this capacity, the DBELO is responsible for implementing all aspects of the DBE Program and ensuring that RCTC complies with all provisions of 49 CFR Part 26 and subsequent DOT -issued directives and final rules. The DBELO has direct, independent access to RCTC's Executive Director concerning DBE Program matters (Refer to Exhibit B, "DBE Program Organizational Chart"). The DBELO has sufficient support personnel who devote a portion of their time to implement the Program. The DBELO is responsible for developing, implementing and monitoring the DBE Program, in coordination with other appropriate officials. The DBELO's and/or designee's duties include, but are not limited to, the following activities: 1. Gathers and reports statistical data and other information as required by the DBE Program, including preparation of semi-annual DBE reports and overall PROJECT DBE goal and related analysis for submission to the applicable DOT Operating Administration and management ad hoc reporting. 2. Reviews applicable contracts, purchase requisitions, advertisements, boilerplate language specifications and other related documentation specific to implementing applicable DBE requirements on the PROJECT. 3. Consults with all affected departments in developing the overall PROJECT DBE goal 4. Ensures that bid notices and requests for proposals are made available to DBEs in a timely manner. 5. Reviews DOT-assisted contracts and procurements, including the PROJECT, for purposes of applying, when appropriate, contract-specific DBE goals and/or applicable race-neutral methods. 6. Analyzes RCTC's progress towards meeting overall PROJECT DBE goal commitments by monitoring individual contract DBE attainments. 7. Participates in reviewing DBE solicitation and contract requirements with potential bidders and/or offerors. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 4 of 15 31 8. Advises the Executive Director and/or the governing body on DBE matters and achievements. 9. Determines contractor compliance with race-conscious DBE Good Faith Effort provisions, as applicable in a race-conscious environment, and conducts contract DBE responsiveness reviews, including assessing DBE participation eligibility towards RCTC's overall PROJECT DBE goal. Additionally, the DBELO and/or designee is charged with implementing the race- neutral measures defined in Section VI of this DBE Program document. B. Reconsideration Official (§26.53 (d)) Should RCTC implement a race-conscious component to this DBE Program, the DBE Program will be amended to provide the procedures for the administrative reconsideration process and to specify RCTC's Reconsideration Official. V. ADMINISTRATIVE REQUIREMENTS A. Non-discrimination Requirements (§26.7) RCTC will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part 26 on the basis of race, color, sex, or national origin. In administering its DBE Program, RCTC will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program with respect to individuals of a particular race, color, sex, or national origin. B. Federal Financial Assistance Agreement Assurance (§26.13 (a)) RCTC will sign the following assurance as a condition of financial assistance agreements with the DOT, and which is hereby made applicable to all of RCTC's DOT -assisted contracts: "RCTC shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any U.S. DOT-assisted contract or in the administration of its DBE Program or the requirements of Title 49, CFR, Part 26. RCTC shall take all necessary and reasonable steps under Title 49, CFR, Part 26 to ensure nondiscrimination in the award and administration of U.S. DOT-assisted contracts. RCTC's DBE Program, as required by Title 49, CFR, Part 26 and as approved by U.S. DOT, is incorporated by reference in this agreement. Implementation of this Program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to RCTC of its failure to carry out its approved program, the Department may impose sanctions as provided under Title 49, CFR, Part 26 Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 5 of 15 32 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.)." C. DBE Financial Institutions (§26.27) At this time, RCTC has not identified DBE-Owned financial institutions. However, RCTC encourages Design-Builder and other contractors to use the services of minority and women-owned financial institutions identified from listings posted at the Website of the Financial Management Service, US Department of the Treasury, Minority Bank Deposit Program. The Internet address of this website is: http://www.fms.treas.gov/mbdp. D. DBE Directory (§26.31) RCTC will refer the Design-Builder and other contractors to the California Unified Certification Program (CUCP) Database of Certified DBE Firms (DBE Directory) to assist in identifying certified DBEs. The DBE Directory is published at www.CaliforniaUCP.com. E. Overconcentration (§26.33) RCTC has not identified any types of work that have a burdensome overconcentration of DBE participation. However, should RCTC determine that overconcentration exists in a work classification, RCTC will obtain the approval of the concerned DOT Operating Administration of its determination and the measures devised to address it. Once these measures are approved, they will become part of RCTC's DBE Program. F. Business Development Programs (§26.35) RCTC has not established a business development program. The DBELO will continually evaluate the need and assess whether RCTC should establish a Business Development Program and/or a Mentor Protege Program. If RCTC establishes either program, the program will be guided by the applicable Appendix of 49 CFR Part 26 and approved by the concerned DOT Operating Administration before being implemented. G. Fostering Small Business Participation (§26.39) RCTC will structure contracting requirements to facilitate competition by Small Businesses on the PROJECT by requiring the PROJECT Design-Builder to specify elements of work that Small Businesses can perform and to provide subcontract opportunities for those elements to DBEs and other Small Businesses. The elements of this requirement will be specified in the DBE Program Performance Plan component of the PROJECT solicitation documents. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 6 of 15 33 VI. DETERMINING, MEETING AND COUNTING DBE PARTICIPATION TOWARDS THE OVERALL PROJECT DBE GOAL (§26.45; §26.51; §26.55) A. Methodology for Setting Overall DBE Goals (§26.45; §26.49) In accordance with §26.45(e)(3), and with FHWA approval, RCTC will establish an overall goal for the PROJECT, which is a multi-year design-build project. The overall PROJECT goal will represent the amount of DOT-assisted funds RCTC anticipates expending on DBE firms over the length of the PROJECT, and will be presented as a percentage of the total DOT-assistance received. The overall PROJECT goal will be developed in accordance with the 2-step process specified in §26.45 (c) & (d). The first step is to determine the goal "base figure" based on the relative availability of DBEs in RCTC's market area. The second step is to adjust the goal "base figure" from Step 1 so that it reflects as accurately as possible the DBE participation RCTC would expect in the absence of discrimination based on past participation, a disparity study and/or information about barriers to DBE participation. Annual projections on DBE participation during each fiscal year of the PROJECT will be developed as specified by §26.45 (e)(3)(iii). Additionally, RCTC will provide for public participation in establishing an overall PROJECT goal. RCTC will publish a notice of the proposed overall PROJECT goal, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at RCTC for 30 days following the date of the notice, and informing the public that RCTC and DOT will accept comments on the goals for 45 days from the date of the notice. Notice will be issued in general circulation media and available minority-focused media& trade publications. Additionally, RCTC will issue the notice to minority, women's and general contractor groups, community organizations, and other officials or organizations to solicit information concerning the availability of disadvantaged and non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and RCTC's efforts to establish a level playing field for the participation of DBEs. RCTC will submit the overall PROJECT goal to DOT in accordance with §26.45 (f)(2). The overall goal submission to DOT will include a summary of information and comments received during this public comment/participation process and any RCTC responses. A complete description of the methodology applied to calculate the overall PROJECT goal can be found in Exhibit C to this program. RCTC will begin using the overall PROJECT goal with the issuance of the PROJECT solicitation documents, likely to occur in the first quarter of 2012. B. Transit Vehicle Manufacturers (TVM) Certifications (§26.49) RCTC does not purchase TVM's, therefore this section is not applicable. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 7 of 15 34 C. Race-Neutral Measures (§26.51) RCTC has considered the full complement of race-neutral measures identified in 49 CFR part 26. Based on the PROJECT circumstances, RCTC plans to implement the following race-neutral activities aimed at increasing DBE and other Small Business participation in the PROJECT. 1. RCTC will structure and present the PROJECT solicitation and schedules in ways that facilitate DBE and other Small Business participation with prospective Design-Builders. RCTC will also facilitate Small Business conferences for the PROJECT, which includes a networking component to promote teaming opportunities between prospective Design-Builders and the DBE and Small Business contracting community. 2. RCTC will require the Design-Builder to provide assistance to Small Business including DBEs in overcoming limitations such as inability to obtain bonding or financing. RCTC will additionally refer the DBE and Small Business contracting community to the SBA Bonding Assistance Program. 3. RCTC will carry out a communications effort to inform DBEs and other Small Businesses of opportunities that may be available with the Design-Builder on the PROJECT. 4. As a supportive service to help develop and improve immediate and long- term business management, record keeping, and financial and accounting capability for DBEs and other Small Businesses, RCTC will actively promote Small Business conferences, programs and supportive services currently offered by peer agencies which have mature DBE and Small Business Programs and are seeking increased DBE and Small Business participation in their programs. 5. RCTC will advise the Design-Builder and other contractors seeking to participate on the PROJECT to the online directory of certified DBEs, found at the CUCP website: www.CaliforniaUCP.com D. Use of Set-Asides or Quotas (§26.43) RCTC shall not permit the use of quotas for DBEs on DOT -assisted contracts, including the PROJECT, in accordance with 49 CFR Part 26. Further, RCTC shall not set aside contracts for DBEs on DOT-assisted contracts, including the PROJECT, subject to the regulatory provisions, except in limited and extreme circumstances where no other method could be reasonably expected to redress egregious instances of discrimination. E. Counting DBE Participation and Commercially Useful Function (§26.55) RCTC will count DBE participation toward the overall Project goal as provided in 49 CFR §26.55. RCTC will not count the participation of a DBE subcontract toward the Design-Builder's final compliance with its DBE obligations on the PROJECT until the amount being counted has actually been paid to the DBE. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 8 of 15 35 VII. REQUIRED CONTRACT PROVISIONS AND ENFORCEMENT A. Contractor's Assurance Clause Regarding Non-Discrimination (§26.13) RCTC will ensure that the following clause is placed in all PROJECT DOT-assisted contracts and subcontracts: "The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of Title 49, CFR, Part 26 in the award and administration of RCTC's U.S. 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 RCTC deems appropriate." B. Prompt Payment Provisions (§26.29) The DBE Program found at 49 CFR Part 26 requires that any delay or postponement of payment over 30 days may take place only for good cause and with RCTC's prior written approval. Any violation of this provision shall subject the violating Design- Builder 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 Design-Builder or subcontractor in the event of a dispute involving late payment or nonpayment by the Design-Builder, 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 RCTC. Failure to comply with this provision without prior approval from RCTC will constitute noncompliance, which may result in the application of appropriate administrative sanctions, including, but not limited to, withholding of payment to the Design-Builder 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. 1. Prompt Progress Payments to Subcontractors RCTC will include a contract clause that will require the Design-Builder to pay each subcontractor participating on the PROJECT for satisfactory performance of its contract no later than 10 days from the receipt of each payment the Design- Builder receives from RCTC. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of RCTC. This clause applies to both DBE and non-DBE subcontractors. 2. Payment of Retention Withheld from Subcontractor RCTC elects to hold retainage from the PROJECT Design-Builder. RCTC will provide prompt and regular incremental acceptances of portions of the work on the PROJECT and pay retainage to the Design-Builder based on these acceptances. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 9 of 15 36 RCTC will include a contract clause that will require the PROJECT Design- Builder to make prompt and full payment of any retainage owed to subcontractors for satisfactory completion of the subcontractors work within 30 days after subcontractor's work has been satisfactorily completed. VIII. DBE CERTIFICATION STANDARDS (§26.61-§26.73; §26.81; §26.83a) As a non-certifying member of the CUCP, RCTC will accept DBE certifications from certifying member agencies of the CUCP. The CUCP DBE Certification application is presented in Exhibit D. For more information about the certification process or to apply for certification, firms should visit the CUCP website at www.californiaucp.com. IX. CERTIFICATION PROCEDURES (SUBPART E) A. Unified Certification Program (UCP) (§ 26.81) & Procedures for Certification Decisions (§ 26.83) RCTC is a member of the CUCP administered by the state of California Certifying Members. The CUCP will meet all of the requirements of Subpart E of 49 CFR Part 26. X. RECORD KEEPING AND MONITORING (§26.11, §26.37) RCTC will develop an appropriate record keeping system as a mechanism for monitoring and tracking DBE commitments/attainments throughout the performance of the PROJECT. The tracking system will include procedures adopted by RCTC to comply with DOT regulations and maintenance of support documentation including subcontractor commitments, contract documents for all subcontractors, and monthly Subcontractors Paid Reports (see Exhibit F) from the PROJECT Design-Builder. RCTC will also develop and maintain a hard-copy PROJECT management file which will include documentation of all DBE Program related compliance monitoring and enforcement activities. A. Bidders List (§ 26.11) RCTC will develop and maintain a Bidders List consisting of all firms bidding on the PROJECT, along with the subcontractors that are members of the firms team at time of bid, and any new subcontractors that get added to their team over the duration of the PROJECT. The following information will be included in the bidders list: Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 10 of 15 37 1. Firm Name; 2. Address; 3. Years in Business; 4. Status as a DBE or non-DBE; 5. Type of Work; and 6. Annual Range of Gross Receipts. B. Reporting to DOT(§ 26.11) RCTC will submit to the applicable DOT Operating Administration the "Uniform Report of DBE Awards or Commitments and Payments" (Refer to Exhibit E) semi- annually on June 1 and December 1 of each year, as required. The June 1 report will include DBE activity from October 1 through March 31. The December 1 report will include DBE activity from April 1 through September 30. This report presents a summary of the PROJECT Design Builder contract and all subcontracts awarded or committed over the life of the PROJECT. This report will additionally provide attainments achieved over the life of PROJECT. Upon request, RCTC will compile and submit ad-hoc DBE contract award and progress reports for the PROJECT. Furthermore, RCTC will continue to provide reports relative to RCTC's DBE Program, as directed. C. Information. Confidentiality, Cooperation (§ 26.1 09) RCTC will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal Freedom of Information and Privacy Acts (5 U.S.C. 552 and 552a), California Public Records Act (Government Code §6250) state, and local law. Notwithstanding the preceding provision, RCTC will not release any information that may reasonably be construed as confidential business information to any third party (other than DOT) without the written consent of the firm that submitted the information. This includes applications for DBE certification and supporting information. D. Monitoring and Enforcement Mechanisms (§ 26.37) RCTC will implement appropriate mechanisms to ensure compliance with 49 CFR Part 26 requirements by all program participants (e.g., applying legal and contract remedies available under Federal, state and local law). RCTC's DBE Program will include a monitoring and enforcement mechanism to ensure that work committed to DBEs is actually performed by DBEs. Such mechanisms will provide a running tally of actual DBE attainments (e.g., payments actually made to DBE firms), including a means of comparing these attainments to commitments. RCTC may perform interim audits of contract payments to DBEs. The audit will review payments to DBE subcontractors to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts committed. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 11 of 15 38 RCTC will bring to the attention of the DOT any false, fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps provided in 26.107 (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules). Additionally, RCTC will consider similar action under its own legal authorities, including responsibility determinations in future contracts. XI. DESIGN-BUILD PROJECT PROVISIONS RCTC recognizes that special modifications of the DBE Program are necessary to advance the participation of DBEs and other small businesses in connection with the PROJECT for the following reasons: (1) Pursuant to Public Contract Code Section 20209.10, design-build transit projects (including the PROJECT) are not subject to the Subletting and Subcontracting Fair Practices Act that requires prospective Design-Builders to name their major subcontractors in their bids. (2) RCTC is required to structure contracting requirements to facilitate competition by small businesses on the PROJECT (as presented in Section V (G) of this document) (3) RCTC's DBE Program is entirely race-neutral and as a result is not able to utilize a contract specific goal and related Good Faith Efforts requirements for the PROJECT. For this reason, RCTC has adopted the following procedures applicable to the PROJECT to help meet the objectives of the DBE Program and the overall PROJECT goal. A. Design Build Prime DBE Program Performance Plan Each prospective Design-Builder for the PROJECT will be required to submit at time of bid a management approach describing how the prospective Design-Builder plans to implement the DBE Program requirements of the PROJECT. This management plan will be scored on a pass/fail basis as a matter of responsiveness to the PROJECT DBE Program requirements. The management approach will generally identify the prospective Design-Builder's approach to help RCTC meet the requirements of the RCTC DBE Program, including the overall PROJECT goal. Elements of the management approach will include the following: 1. Overview of prospective Design-Builder's understanding of the DBE Program including race-neutral requirements. 2. Presentation of Key Personnel assigned to the position of DBE Program Compliance Administrator, based on qualification criteria to be developed by RCTC, who will be responsible for meeting the PROJECT DBE requirements. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 12 of 15 39 ,-------------------------------------------------------- 3. Prospective Design-Builder's experience and track record working with DBE and other Small Businesses. 4. High level presentation on prospective Design-Builder's methodology for achieving DBE and other Small Business participation, including list of work items that prospective Design-Builder anticipates to be awarded to Small Businesses including DBEs. 5. A general presentation on the barriers DBEs and other Small Businesses will face on the PROJECT and the prospective Design-Builder's approach to mitigate these barriers. 6. Summary of monthly reports that will be submitted to RCTC regarding (1) commitments and payments to DBE and other small businesses on the PROJECT, (2) prompt payment requirements of the PROJECT, (3) payment of retainage requirements of the PROJECT, (4) race-neutral efforts undertaken by the proposer to meet DBE Program objectives and goals. The criteria to determine responsiveness to this requirement will be included in the PROJECT solicitation documents. Prior to award of the PROJECT, the successful Design-Builder shall be required to provide RCTC with a detailed DBE Program Performance Plan meeting the requirements specified in the PROJECT contract documents. This DBE Program Performance Plan will be subject to RCTC review and approval. The successful Design-Builder shall be required to revise the submitted DBE Program Performance Plan to incorporate/address RCTC's comments, if applicable. The Instructions to Proposers document and the Request for Proposal provisions for the PROJECT will detail the specific requirements to be included in the management approach submittal due at time of bid as well as the DBE Program Performance Plan due by the successful Design-Builder upon contract award. B. Compliance Monitoring and Enforcement RCTC will monitor the PROJECT Design-Builder's compliance with the DBE Program requirements through monthly reports submitted by the Design-Builder. This report is due no later the 10th of each month until PROJECT completion. These reports will be in a format to be developed by the Design-Builder and approved by RCTC, which will address all the reporting requirements of the DBE Program. At a minimum, the reports submitted by the prime will address the following DBE Program elements: 1. Written narrative of progress in meeting the DBE Program requirements. 2. Information on Design-Builder's payments to subcontractors. The report format will be developed by the Design-Builder, but at a minimum will include the reporting elements contained in the Monthly Subcontractors Paid Report presented in Exhibit F. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 13 of 15 40 3. Information on Design-Builder's compliance with prompt payment and retainage payment requirements. 4. Information on new subcontractors added to Design-Builder's team 5. Information on contract changes for all subcontractors on Design-Builder's team. 6. Schedule of subcontract procurements, including specification of procurements targeted towards DBE and Small Businesses. 7. Description of DBE Program related race-neutral activities to be performed by Design-Builder during next reporting period. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 14 of 15 41 List of Exhibits Exhibit A: DBE Program Regulations Exhibit B: DBE Program Organizational Chart Exhibit C: RCTC Goal Setting Methodology Exhibit 0: CUCP DBE Certification Application Exhibit E: Uniform Report of DBE Awards or Commitments and Payments Exhibit F: Monthly Subcontractors Paid Report Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 15 of 15 42 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program State Route 91 Corridor Improvement Project Exhibit A DBE Program Regulations 43 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs TITLE 49: TRANSPORTATION PART 26-PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT OF TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS Section Contents Subpart A-General ................................................................................................................................................... 3 § 26.1 § 26.3 § 26.5 § 26.7 § 26.9 What are the objectives of this part? ......................................................................................... 3 To whom does this part apply? .................................................................................................. 3 What do the terms used in this part mean? ............................................................................... 3 What discriminatory actions are forbidden? .............................................................................. 6 How does the Department issue guidance and interpretations under this part? ...................... 6 § 26.11 What records do recipients keep and report? ........................................................................... 6 § 26.13 What assurances must recipients and contractors make? ........................................................ 7 § 26.15 How can recipients apply for exemptions or waivers? .............................................................. 7 Subpart B-Administrative Requirements for DBE Programs for Federally-Assisted Contracting ................ 8 § 26.21 Who must have a DBE program? .............................................................................................. 8 § 26.23 What is the requirement for a policy statement? ....................................................................... 8 § 26.25 What is the requirement for a liaison officer? ............................................................................ 8 § 26.27 What efforts must recipients make concerning DBE financial institutions? .............................. 9 § 26.29 What prompt payment mechanisms must recipients have? ...................................................... 9 § 26.31 What information must you include in your DBE directory? ...................................................... 9 § 26.33 What steps must a recipient take to address overconcentration of DBEs in certain types of work? ....................................................................................................................................... 10 § 26.35 What role do business development and mentor-protege programs have in the DBE program? ................................................................................................................................. 10 § 26.37 What are a recipient's responsibilities for monitoring the performance of other program participants? ............................................................................................................................ 10 § 26.39 Fostering small business participation .................................................................................... 11 Subpart C-Goals, Good Faith Efforts, and Counting ......................................................................................... ll § 26.41 What is the role of the statutory 10 percent goal in this program? .......................................... 11 § 26.43 Can recipients use set-asides or quotas as part of this program? .......................................... 11 § 26.45 How do recipients set overall goals? ....................................................................................... 11 § 26.47 Can recipients be penalized for failing to meet overall goals? ................................................ 14 § 26.49 How are overall goals established for transit vehicle manufacturers? .................................... 15 § 26.51 What means do recipients use to meet overall goals? ............................................................ 15 § 26.53 What are the good faith efforts procedures recipients follow in situations where there are contract goals? ........................................................................................................................ 17 Page 1 of 50 44 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.55 How is DBE participation counted toward goals? .................................................................... 19 Subpart D-Certification Standards ....................................................................................................................... 21 § 26.61 How are burdens of proof allocated in the certification process? ............................................ 21 § 26.63 What rules govern group membership determinations? ......................................................... 22 § 26.65 What rules govern business size determinations? .................................................................. 22 § 26.67 What rules determine social and economic disadvantage? .................................................... 22 § 26.69 "'!hat rules govern determinations of ownership? ................................................................... 23 § 26.71 What rules govern determinations concerning control? .......................................................... 25 § 26.73 What are other rules affecting certification? ............................................................................ 28 Subpart E-Certification Procedures ..................................................................................................................... 30 § 26.81 What are the requirements for Unified Certification Programs? .............................................. 30 § 26.83 What procedures do recipients follow in making certification decisions? ............................... 31 § 26.85 Interstate certification .............................................................................................................. 32 § 26.86 What rules govern recipients' denials of initial requests for certification? ............................... 34 § 26.87 What procedures does a recipient use to remove a DBE's eligibility? .................................... 35 § 26.89 What is the process for certification appeals to the Department of Transportation? .............. 37 § 26.91 What actions do recipients take following DOT certification appeal decisions? ..................... 38 Subpart F-Compliance and Enforcement ........................................................................................................... 39 § 26.101 What compliance procedures apply to recipients? ................................................................. 39 § 26.103 What enforcement actions apply in FHWA and FTA programs? ............................................ 39 § 26.105 What enforcement actions apply in FAA programs? ............................................................... 39 § 26.107 What enforcement actions apply to firms participating in the DBE program? ........................ .40 § 26.109 What are the rules governing information, confidentiality, cooperation, and intimidation or retaliation? ............................................................................................................................... 40 Appendix A to Part 26-Guidance Concerning Good Faith Efforts ........................................................ 41 Appendix B to Part 26-Uniform Report of DBE Awards or Commitments and Payments Form .......... 43 Appendix C to Part 26-DBE Business Development Program Guidelines ........................................... 46 Appendix D to Part 26-Mentor-Protege Program Guidelines ............................................................... 47 Appendix E to Part 26-lndividual Determinations of Social and Economic Disadvantage ................... 48 Appendix F to Part 26-Uniform Certification Application Form ............................................................. 50 Authority: 23 U.S.C. 304 and 324; 42 U.S.C. 2000d, et seq. ; 49 U.S.C. 47107, 47113, 47123; Sec. 1101(b), Pub. L. 105-178, 112 Stat. 107, 113. Source: 64 FR 5126, Feb. 2, 1999, unless otherwise noted. Page 2 of 50 45 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Subpart A-General § 26.1 What are the objectives of this part? This part seeks to achieve several objectives: (a) To ensure nondiscrimination in the award and administration of DOT-assisted contracts in the Department's highway, transit, and airport financial assistance programs; (b) To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts; (c) To ensure that the Department's DBE program is narrowly tailored in accordance with applicable law; (d) To ensure that only firms that fully meet this part's eligibility standards are permitted to participate as DBEs; (e) To help remove barriers to the participation of DBEs in DOT-assisted contracts; (f) To assist the development of firms that can compete successfully in the marketplace outside the DBE program; and (g) To provide appropriate flexibility to recipients of Federal financial assistance in establishing and providing opportunities for DBEs. § 26.3 To whom does this part apply? (a) If you are a recipient of any of the following types of funds, this part applies to you: (1) Federal-aid highway funds authorized under Titles I (other than Part B) and V of the lntermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240, 105 Stat. 1914, or Titles I, Ill, and V of the Transportation Equity Act for the 21st Century (TEA-21 ), Pub. L. 105-178, 112 Stat. 107. (2) Federal transit funds authorized by Titles I, Ill, V and VI of ISTEA, Pub. L. 102-240 or by Federal transit laws in Title 49, U.S. Code, or Titles I, Ill, and Vofthe TEA-21, Pub. L. 105-178. (3) Airport funds authorized by 49 U.S.C. 47101, et seq. (b) [Reserved] (c) If you are letting a contract, and that contract is to be performed entirely outside the United States, its territories and possessions, Puerto Rico, Guam, or the Northern Marianas Islands, this part does not apply to the contract. (d) If you are letting a contract in which DOT financial assistance does not participate, this part does not apply to the contract. §26.5 What do the terms used in this part mean? Affiliation has the same meaning the term has in the Small Business Administration (SBA) regulations, 13 CFR part 121. (1) Except as otherwise provided in 13 CFR Part 121, concerns are affiliates of each other when, either directly or indirectly: (i) One concern controls or has the power to control the other; or (ii) A third party or parties controls or has the power to control both; or (iii) An identity of interest between or among parties exists such that affiliation may be found. (2) In determining whether affiliation exists, it is necessary to consider all appropriate factors, including common ownership, common management, and contractual relationships. Affiliates must be considered together in determining whether a concern meets small business size criteria and the statutory cap on the participation of firms in the DBE program. Alaska Native means a citizen of the United States who is a person of one-fourth degree or more Alaskan Indian (including Tsimshian Indians not enrolled in the Metlaktla Indian Community), Eskimo, or Aleut blood, or a combination of those bloodlines. The term includes, in the absence of proof of a minimum blood quantum, any citizen whom a Native village or Native group regards as an Alaska Native if their father or mother is regarded as an Alaska Native. Page 3 of 50 46 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Alaska Native Corporation (ANC) means any Regional Corporation, Village Corporation, Urban Corporation, or Group Corporation organized under the laws of the State of Alaska in accordance with the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.). Compliance means that a recipient has correctly implemented the requirements of this part. Contract means a legally binding relationship obligating a seller to furnish supplies or services (including, but not limited to, construction and professional services) and the buyer to pay for them. For purposes of this part, a lease is considered to be a contract. Contractor means one who participates, through a contract or subcontract (at any tier), in a DOT-assisted highway, transit, or airport program. Department or DOT means the U.S. Department of Transportation, including the Office of the Secretary, the Federal Highway Administration (FHWA), the Federal Transit Administration (FTA), and the Federal Aviation Administration (FAA). Disadvantaged business enterprise or DBE means a for-profit small business concern- (1) That is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by one or more such individuals; and (2) Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. DOT-assisted contract means any contract between a recipient and a contractor (at any tier) funded in whole or in part with DOT financial assistance, including letters of credit or loan guarantees, except a contract solely for the purchase of land. DOT/SBA Memorandum of Understanding or MOU, refers to the agreement signed on November 23, 1999, between the Department of Transportation (DOT) and the Small Business Administration (SBA) streamlining certification procedures for participation in SBA's 8(a) Business Development (8(a) BD) and Small Disadvantaged Business (SOB) programs, and DOT's Disadvantaged Business Enterprise (DBE) program for small and disadvantaged businesses. Good faith efforts means efforts to achieve a DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill the program requirement. Home state means the state in which a DBE firm or applicant for DBE certification maintains its principal place of business. Immediate family member means father, mother, husband, wife, son, daughter, brother, sister, grandmother, grandfather, grandson, granddaughter, mother-in-law, or father-in-law. Indian tribe means any Indian tribe, band, nation, or other organized group or community of Indians, including any ANC, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, or is recognized as such by the State in which the tribe, band, nation, group, or community resides. See definition of "tribally-owned concern" in this section. Joint venture means an association of a DBE firm and one or more other firms to carry out a single, for-profit business enterprise, for which the parties combine their property, capital, efforts, skills and knowledge, and in which the DBE is responsible for a distinct, clearly defined portion of the work of the contract and whose share in the capital contribution, control, management, risks, and profits of the joint venture are commensurate with its ownership interest. Native Hawaiian means any individual whose ancestors were natives, prior to 1778, of the area which now comprises the State of Hawaii. Native Hawaiian Organization means any community service organization serving Native Hawaiians in the State of Hawaii which is a not-for-profit organization chartered by the State of Hawaii, is controlled by Native Hawaiians, and whose business activities will principally benefit such Native Hawaiians. Noncompliance means that a recipient has not correctly implemented the requirements of this part. Operating Administration or OA means any of the following parts of DOT: the Federal Aviation Administration (FAA), Federal Highway Administration (FHWA), and Federal Transit Administration (FTA). The "Administrator" of an operating administration includes his or her designees. Page 4 of 50 47 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Personal net worth means the net value of the assets of an individual remaining after total liabilities are deducted. An individual's personal net worth does not include: The individual's ownership interest in an applicant or participating DBE firm; or the individual's equity in his or her primary place of residence. An individual's personal net worth includes only his or her own share of assets held jointly or as community property with the individual's spouse. Primary industry classification means the North American Industrial Classification System (NAICS) designation which best describes the primary business of a firm. The NAICS is described in the North American Industry Classification Manual-United States, 1997which is available from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA, 22161; by calling 1 (800) 553-6847; or via the Internet at: http://www. ntis. govlproductlnaics. htm. Primary recipient means a recipient which receives DOT financial assistance and passes some or all of it on to another recipient. Principal place of business means the business location where the individuals who manage the firm's day-to-day operations spend most working hours and where top management's business records are kept. If the offices from which management is directed and where business records are kept are in different locations, the recipient will determine the principal place of business for DBE program purposes. Program means any undertaking on a recipient's part to use DOT financial assistance, authorized by the laws to which this part applies. Race-conscious measure or program is one that is focused specifically on assisting only DBEs, including women- owned DBEs. Race-neutral measure or program is one that is, or can be, used to assist all small businesses. For the purposes of this part, race-neutral includes gender-neutrality. Recipient is any entity, public or private, to which DOT financial assistance is extended, whether directly or through another recipient, through the programs of the FAA, FHWA, or FTA, or who has applied for such assistance. Secretary means the Secretary of Transportation or his/her designee. Set-aside means a contracting practice restricting eligibility for the competitive award of a contract solely to DBE firms. Small Business Administration or SBA means the United States Small Business Administration. SBA certified firm refers to firms that have a current, valid certification from or recognized by the SBA under the 8(a) BD or SOB programs. Small business concern means, with respect to firms seeking to participate as DBEs in DOT -assisted contracts, a small business concern as defined pursuant to section 3 of the Small Business Act and Small Business Administration regulations implementing it (13 CFR part 121) that also does not exceed the cap on average annual gross receipts specified in §26.65(b). Socially and economically disadvantaged individual means any individual who is a citizen (or lawfully admitted permanent resident) of the United States and who is- (1) Any individual who a recipient finds to be a socially and economically disadvantaged individual on a case- by-case basis. (2) Any individual in the following groups, members of which are rebuttably presumed to be socially and economically disadvantaged: (i) "Black Americans," which includes persons having origins in any of the Black racial groups of Africa; (ii) "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; (iii) "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; (iv) "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati, Juvalu, Nauru, Federated States of Micronesia, or Hong Kong; (v) "Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka; Page 5 of 50 48 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (vi) Women; (vii) Any additional groups whose members are designated as socially and economically disadvantaged by the SBA, at such time as the SBA designation becomes effective. Tribally-owned concern means any concern at least 51 percent owned by an Indian tribe as defined in this section. You refers to a recipient, unless a statement in the text of this part or the context requires otherwise (i.e., 'You must do XYZ' means that recipients must do XYZ). [64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 68 FR 35553, June 16, 2003; 76 FR 5096, Jan. 28, 2011] §26.7 What discriminatory actions are forbidden? (a) You must never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by this part on the basis of race, color, sex, or national origin. (b) In administering your DBE program, you must not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, sex, or national origin. § 26.9 How does the Department issue guidance and interpretations under this part? (a) Only guidance and interpretations (including interpretations set forth in certification appeal decisions) consistent with this part 26 and issued after March 4, 1999 express the official positions and views of the Department of Transportation or any of its operating administrations. (b) The Secretary of Transportation, Office of the Secretary of Transportation, FHWA, FTA, and FAA may issue written interpretations of or written guidance concerning this part. Written interpretations and guidance are valid, and express the official positions and views of the Department of Transportation or any of its operating administrations, only if they are issued over the signature of the Secretary of Transportation or if they contain the following statement: The General Counsel of the Department of Transportation has reviewed this document and approved it as consistent with the language and intent of 49 CFR Part 26. [72 FR 15617, Apr. 2, 2007] § 26.11 What records do recipients keep and report? (a) You must transmit the Uniform Report of DBE Awards or Commitments and Payments, found in Appendix B to this part, at the intervals stated on the form. (b) You must continue to provide data about your DBE program to the Department as directed by DOT operating administrations. (c) You must create and maintain a bidders list. (1) The purpose of this list is to provide you as accurate data as possible about the universe of DBE and non- DBE contractors and subcontractors who seek to work on your Federally-assisted contracts for use in helping you set your overall goals. (2) You must obtain the following information about DBE and non-DBE contractors and subcontractors who seek to work on your Federally-assisted contracts: (i) Firm name; (ii) Firm address; (iii) Firm's status as a DBE or non-DBE; (iv) Age of the firm; and (v) The annual gross receipts of the firm. You may obtain this information by asking each firm to indicate into what gross receipts bracket they fit (e.g., less than $500,000; $500,000-$1 million; $1-2 million; Page 6 of 50 49 ----------------------------------------- TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs $2-5 million; etc.) rather than requesting an exact figure from the firm. (3) You may acquire the information for your bidders list in a variety of ways. For example, you can collect the data from all bidders, before or after the bid due date. You can conduct a survey that will result in statistically sound estimate of the universe of DBE and non-DBE contractors and subcontractors who seek to work on your Federally-assisted contracts. You may combine different data collection approaches (e.g., collect name and address information from all bidders, while conducting a survey with respect to age and gross receipts information). [64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 76 FR 5096, Jan. 28, 2011) § 26.13 What assurances must recipients and contractors make? (a) Each financial assistance agreement you sign with a DOT operating administration (or a primary recipient) must include the following assurance: The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE program or the requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient's DBE program, as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq. ). (b) 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. § 26.15 How can recipients apply for exemptions or waivers? (a) You can apply for an exemption from any provision of this part. To apply, you must request the exemption in writing from the Office of the Secretary of Transportation, FHWA, FTA, or FAA. The Secretary will grant the request only if it documents special or exceptional circumstances, not likely to be generally applicable, and not contemplated in connection with the rulemaking that established this part, that make your compliance with a specific provision of this part impractical. You must agree to take any steps that the Department specifies to comply with the intent of the provision from which an exemption is granted. The Secretary will issue a written response to all exemption requests. (b) You can apply for a waiver of any provision of Subpart B or C of this part including, but not limited to, any provisions regarding administrative requirements, overall goals, contract goals or good faith efforts. Program waivers are for the purpose of authorizing you to operate a DBE program that achieves the objectives of this part by means that may differ from one or more of the requirements of Subpart B or C of this part. To receive a program waiver, you must follow these procedures: (1) You must apply through the concerned operating administration. The application must include a specific program proposal and address how you will meet the criteria of paragraph (b )(2) of this section. Before submitting your application, you must have had public participation in developing your proposal, including consultation with the DBE community and at least one public hearing. Your application must include a summary of the public participation process and the information gathered through it. (2) Your application must show that- (i) There is a reasonable basis to conclude that you could achieve a level of DBE participation consistent with the objectives of this part using different or innovative means other than those that are provided in subpart B or C of this part; (ii) Conditions in your jurisdiction are appropriate for implementing the proposal; Page 7 of 50 50 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (iii) Your proposal would prevent discrimination against any individual or group in access to contracting opportunities or other benefits of the program; and (iv) Your proposal is consistent with applicable law and program requirements of the concerned operating administration's financial assistance program. (3) The Secretary has the authority to approve your application. If the Secretary grants your application, you may administer your DBE program as provided in your proposal, subject to the following conditions: (i) DBE eligibility is determined as provided in subparts D and E of this part, and DBE participation is counted as provided in §26.49; (ii) Your level of DBE participation continues to be consistent with the objectives of this part; (iii) There is a reasonable limitation on the duration of your modified program; and (iv) Any other conditions the Secretary makes on the grant of the waiver. (4) The Secretary may end a program waiver at any time and require you to comply with this part's provisions. The Secretary may also extend the waiver, if he or she determines that all requirements of paragraphs (b)(2) and (3) of this section continue to be met. Any such extension shall be for no longer than period originally set for the duration of the program. Subpart B-Administrative Requirements for DBE Programs for Federally-Assisted Contracting § 26.21 Who must have a DBE program? (a) If you are in one of these categories and let DOT-assisted contracts, you must have a DBE program meeting the requirements of this part: (1) All FHWA recipients receiving funds authorized by a statute to which this part applies; (2) FTA recipients receiving planning, capital and/or operating assistance who will award prime contracts (excluding transit vehicle purchases) exceeding $250,000 in FTA funds in a Federal fiscal year; (3) FAA recipients receiving grants for airport planning or development who will award prime contracts exceeding $250,000 in FAA funds in a Federal fiscal year. (b) ( 1) You must submit a DBE program conforming to this part by August 31, 1999 to the concerned operating administration (OA). Once the OA has approved your program, the approval counts for all of your DOT-assisted programs (except that goals are reviewed by the particular operating administration that provides funding for your DOT-assisted contracts). (2) You do not have to submit regular updates of your DBE programs, as long as you remain in compliance. However, you must submit significant changes in the program for approval. (c) You are not eligible to receive DOT financial assistance unless DOT has approved your DBE program and you are in compliance with it and this part. You must continue to carry out your program until all funds from DOT financial assistance have been expended. [64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000] § 26.23 What is the requirement for a policy statement? You must issue a signed and dated policy statement that expresses your commitment to your DBE program, states its objectives, and outlines responsibilities for its implementation. You must circulate the statement throughout your organization and to the DBE and non-DBE business communities that perform work on your DOT-assisted contracts. § 26.25 What is the requirement for a liaison officer? You must have a DBE liaison officer, who shall have direct, independent access to your Chief Executive Officer concerning DBE program matters. The liaison officer shall be responsible for implementing all aspects of your DBE program. You must also have adequate staff to administer the program in compliance with this part. Page 8 of 50 51 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.27 What efforts must recipients make concerning DBE financial institutions? You must thoroughly investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in your community and make reasonable efforts to use these institutions. You must also encourage prime contractors to use such institutions. § 26.29 What prompt payment mechanisms must recipients have? (a) You must establish, as part of your DBE program, a contract clause to require prime contractors to pay subcontractors for satisfactory performance of their contracts no later than 30 days from receipt of each payment you make to the prime contractor. (b) You must ensure prompt and full payment of retainage from the prime contractor to the subcontractor within 30 days after the subcontractor's work is satisfactorily completed. You must use one of the following methods to comply with this requirement: (1) You may decline to hold retainage from prime contractors and prohibit prime contractors from holding retainage from subcontractors. (2) You may decline to hold retainage from prime contractors and require a contract clause obligating prime contractors to make prompt and full payment of any retainage kept by prime contractor to the subcontractor within 30 days after the subcontractor's work is satisfactorily completed. (3) You may hold retainage from prime contractors and provide for prompt and regular incremental acceptances of portions of the prime contract, pay retain age to prime contractors based on these acceptances, and require a contract clause obligating the prime contractor to pay all retainage owed to the subcontractor for satisfactory completion of the accepted work within 30 days after your payment to the prime contractor. (c) For purposes of this section, a subcontractor's work is satisfactorily completed when all the tasks called for in the subcontract have been accomplished and documented as required by the recipient. When a recipient has made an incremental acceptance of a portion of a prime contract, the work of a subcontractor covered by that acceptance is deemed to be satisfactorily completed. (d) Your DBE program must provide appropriate means to enforce the requirements of this section. These means may include appropriate penalties for failure to comply, the terms and conditions of which you set. Your program may also provide that any delay or postponement of payment among the parties may take place only for good cause, with your prior written approval. (e) You may also establish, as part of your DBE program, any of the following additional mechanisms to ensure prompt payment: (1) A contract clause that requires prime contractors to include in their subcontracts language providing that prime contractors and subcontractors will use appropriate alternative dispute resolution mechanisms to resolve payment disputes. You may specify the nature of such mechanisms. (2) A contract clause providing that the prime contractor will not be reimbursed for work performed by subcontractors unless and until the prime contractor ensures that the subcontractors are promptly paid for the work they have performed. (3) Other mechanisms, consistent with this part and applicable state and local law, to ensure that DBEs and other contractors are fully and promptly paid. [68 FR 35553, June 16, 2003] § 26.31 What information must you include in your DBE directory? (a) In the directory required under §26.81 (g) of this Part, you must list all firms eligible to participate as DBEs in your program. In the listing for each firm, you must include its address, phone number, and the types of work the firm has been certified to perform as a DBE. (b) You must list each type of work for which a firm is eligible to be certified by using the most specific NAICS code available to describe each type of work. You must make any changes to your current directory entries necessary to meet the requirement of this paragraph (a) by August 26, 2011. [76 FR 5096, Jan. 28, 2011] Page 9 of 50 52 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.33 What steps must a recipient take to address overconcentration of DBEs in certain types of work? (a) If you determine that DBE firms are so over concentrated in a certain type of work as to unduly burden the opportunity of non-DBE firms to participate in this type of work, you must devise appropriate measures to address this overconcentration. (b) These measures may include the use of incentives, technical assistance, business development programs, mentor-protege programs, and other appropriate measures designed to assist DBEs in performing work outside of the specific field in which you have determined that non-DBEs are unduly burdened. You may also consider varying your use of contract goals, to the extent consistent with §26.51, to unsure that non-DBEs are not unfairly prevented from competing for subcontracts. (c) You must obtain the approval of the concerned DOT operating administration for your determination of overconcentration and the measures you devise to address it. Once approved, the measures become part of your DBE program. § 26.35 What role do business development and mentor-protege programs have in the DBE program? (a) You may or, if an operating administration directs you to, you must establish a DBE business development program (BOP) to assist firms in gaining the ability to compete successfully in the marketplace outside the DBE program. You may require a DBE firm, as a condition of receiving assistance through the BOP, to agree to terminate its participation in the DBE program after a certain time has passed or certain objectives have been reached. See Appendix C of this part for guidance on administering BOP programs. (b) As part of a BOP or separately, you may establish a "mentor-protege" program, in which another DBE or non- DBE firm is the principal source of business development assistance to a DBE firm. (1) Only firms you have certified as DBEs before they are proposed for participation in a mentor-protege program are eligible to participate in the mentor-protege program. (2) During the course of the mentor-protege relationship, you must: (i) Not award DBE credit to a non-DBE mentor firm for using its own protege firm for more than one half of its goal on any contract let by the recipient; and (ii) Not award DBE credit to a non-DBE mentor firm for using its own protege firm for more than every other contract performed by the protege firm. (3) For purposes of making determinations of business size under this part, you must not treat protege firms as affiliates of mentor firms, when both firms are participating under an approved mentor-protege program. See Appendix D of this part for guidance concerning the operation of mentor-protege programs. (c) Your BOPs and mentor-protege programs must be approved by the concerned operating administration before you implement them. Once approved, they become part of your DBE program. § 26.37 What are a recipient's responsibilities for monitoring the performance of other program participants? (a) You must implement appropriate mechanisms to ensure compliance with the part's requirements by all program participants (e.g., applying legal and contract remedies available under Federal, state and local law). You must set forth these mechanisms in your DBE program. (b) Your DBE program must also include a monitoring and enforcement mechanism to ensure that work committed to DBEs at contract award or subsequently (e.g., as the result of modification to the contract) is actually performed by the DBEs to which the work was committed. This mechanism must include a written certification that you have reviewed contracting records and monitored work sites in your state for this purpose. The monitoring to which this paragraph refers may be conducted in conjunction with monitoring of contract performance for other purposes (e.g., close-out reviews for a contract). (c) This mechanism must provide for a running tally of actual DBE attainments (e.g., payments actually made to DBE firms), including a means of comparing these attainments to commitments. In your reports of DBE participation to the Department, you must display both commitments and attainments. [64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003; 76 FR 5097, Jan. 28, 2011] Page 10 of 50 53 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.39 Fostering small business participation. (a) Your DBE program must include an element to structure contracting requirements to facilitate competition by small business concerns, taking all reasonable steps to eliminate obstacles to their participation, including unnecessary and unjustified bundling of contract requirements that may preclude small business participation in procurements as prime contractors or subcontractors. (b) This element must be submitted to the appropriate DOT operating administration for approval as a part of your DBE program by February 28, 2012. As part of this program element you may include, but are not limited to, the following strategies: (1) Establishing a race-neutral small business set-aside for prime contracts under a stated amount (e.g., $1 million). (2) In multi-year design-build contracts or other large contracts (e.g., for "megaprojects") requiring bidders on the prime contract to specify elements of the contract or specific subcontracts that are of a size that small businesses, including DBEs, can reasonably perform. (3) On prime contracts not having DBE contract goals, requiring the prime contractor to provide subcontracting opportunities of a size that small businesses, including DBEs, can reasonably perform, rather than self- performing all the work involved. (4) Identifying alternative acquisition strategies and structuring procurements to facilitate the ability of consortia or joint ventures consisting of small businesses, including DBEs, to compete for and perform prime contracts. (5) To meet the portion of your overall goal you project to meet through race-neutral measures, ensuring that a reasonable number of prime contracts are of a size that small businesses, including DBEs, can reasonably perform. (c) You must actively implement your program elements to foster small business participation. Doing so is a requirement of good faith implementation of your DBE program. [76 FR 5097, Jan. 28, 2011] Subpart C-Goals, Good Faith Efforts. and Counting § 26.41 What is the role of the statutory 10 percent goal in this program? (a) The statutes authorizing this program provide that, except to the extent the Secretary determines otherwise, not less than 10 percent of the authorized funds are to be expended with DBEs. (b) This 10 percent goal is an aspirational goal at the national level, which the Department uses as a tool in evaluating and monitoring DBEs' opportunities to participate in DOT-assisted contracts. (c) The national 10 percent goal does not authorize or require recipients to set overall or contract goals at the 10 percent level, or any other particular level, or to take any special administrative steps if their goals are above or below 1 0 percent. § 26.43 Can recipients use set-asides or quotas as part of this program? (a) You are not permitted to use quotas for DBEs on DOT-assisted contracts subject to this part. (b) You may not set-aside contracts for DBEs on DOT-assisted contracts subject to this part, except that, in limited and extreme circumstances, you may use set-asides when no other method could be reasonably expected to redress egregious instances of discrimination. § 26.45 How do recipients set overall goals? (a) (1) Except as provided in paragraph (a)(2) of this section, you must set an overall goal for DBE participation in your DOT-assisted contracts. (2) If you are a FTA or FAA recipient who reasonably anticipates awarding (excluding transit vehicle purchases) $250,000 or less in FTA or FAA funds in prime contracts in a Federal fiscal year, you are not required to develop overall goals for FTA or FAA respectively for that fiscal year. However, if you have an existing DBE program, it must remain in effect and you must seek to fulfill the objectives outlined in §26.1. Page 11 of 50 54 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (b) Your overall goal must be based on demonstrable evidence of the availability of ready, willing and able DBEs relative to all businesses ready, willing and able to participate on your DOT-assisted contracts (hereafter, the "relative availability of DBEs") The goal must reflect your determination of the level of DBE participation you would expect absent the effects of discrimination. You cannot simply rely on either the 10 percent national goal, your previous overall goal or past DBE participation rates in your program without reference to the relative availability of DBEs in your market. (c) Step 1. You must begin your goal setting process by determining a base figure for the relative availability of DBEs. The following are examples of approaches that you may take toward determining a base figure. These examples are provided as a starting point for your goal setting process. Any percentage figure derived from one of these examples should be considered a basis from which you begin when examining all evidence available in your jurisdiction. These examples are not intended as an exhaustive list. Other methods or combinations of methods to determine a base figure may be used, subject to approval by the concerned operating administration. (1) Use DBE Directories and Census Bureau Data. Determine the number of ready, willing and able DBEs in your market from your DBE directory. Using the Census Bureau's County Business Pattern (CBP) data base, determine the number of all ready, willing and able businesses available in your market that perform work in the same NAICS codes. (Information about the CBP data base may be obtained from the Census Bureau at their web site, www.census.gov/epcd/cbp/view/cbpview.html.) Divide the number of DBEs by the number of all businesses to derive a base figure for the relative availability of DBEs in your market. (2) Use a bidders list. Determine the number of DBEs that have bid or quoted on your DOT-assisted prime contracts or subcontracts in the previous year. Determine the number of all businesses that have bid or quoted on prime or subcontracts in the same time period. Divide the number of DBE bidders and quoters by the number for all businesses to derive a base figure for the relative availability of DBEs in your market. (3) Use data from a disparity study. Use a percentage figure derived from data in a valid, applicable disparity study. (4) Use the goal of another DOT recipient. If another DOT recipient in the same, or substantially similar, market has set an overall goal in compliance with this rule, you may use that goal as a base figure for your goal. (5) Alternative methods. You may use other methods to determine a base figure for your overall goal. Any methodology you choose must be based on demonstrable evidence of local market conditions and be designed to ultimately attain a goal that is rationally related to the relative availability of DBEs in your market. (d) Step 2. Once you have calculated a base figure, you must examine all of the evidence available in your jurisdiction to determine what adjustment, if any, is needed to the base figure in order to arrive at your overall goal. (1) There are many types of evidence that must be considered when adjusting the base f1gure. These include: (i) The current capacity of DBEs to perform work in your DOT-assisted contracting program, as measured by the volume of work DBEs have performed in recent years; (ii) Evidence from disparity studies conducted anywhere within your jurisdiction, to the extent it is not already accounted for in your base figure; and (iii) If your base figure is the goal of another recipient, you must adjust it for differences in your local market and your contracting program. (2) If available, you must consider evidence from related fields that affect the opportunities for DBEs to form, grow and compete. These include, but are not limited to: (i) Statistical disparities in the ability of DBEs to get the financing, bonding and insurance required to participate in your program; (ii) Data on employment, self-employment, education, training and union apprenticeship programs, to the extent you can relate it to the opportunities for DBEs to perform in your program. (3) If you attempt to make an adjustment to your base figure to account for the continuing effects of past discrimination (often called the "but for'' factor) or the effects of an ongoing DBE program, the adjustment must be based on demonstrable evidence that is logically and directly related to the effect for which the adjustment is sought. (e) Once you have determined a percentage figure in accordance with paragraphs (c) and (d) of this section, you should express your overall goal as follows: Page 12 of 50 55 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (1) If you are an FHWA recipient, as a percentage of all Federal-aid highway funds you will expend in FHWA- assisted contracts in the forthcoming three fiscal years. (2) If you are an FTA or FAA recipient, as a percentage of all FT or FAA funds (exclusive of FTA funds to be used for the purchase of transit vehicles) that you will expend in FTA or FAA-assisted contracts in the three forthcoming fiscal years. (3) In appropriate cases, the FHWA, FTA or FAA Administrator may permit or require you to express your overall goal as a percentage of funds for a particular grant or project or group of grants and/or projects. Like other overall goals, a project goal may be adjusted to reflect changed circumstances, with the concurrence of the appropriate operating administration. (i) A project goal is an overall goal, and must meet all the substantive and procedural requirements of this section pertaining to overall goals. (ii) A project goal covers the entire length of the project to which it applies. (iii) The project goal should include a projection of the DBE participation anticipated to be obtained during each fiscal year covered by the project goal. (iv) The funds for the project to which the project goal pertains are separated from the base from which your regular overall goal, applicable to contracts not part of the project covered by a project goal, is calculated. (f) (1) (i) If you set your overall goal on a fiscal year basis, you must submit it to the applicable DOT operating administration by August 1 at three-year intervals, based on a schedule established by the FHWA, FTA, or FAA, as applicable, and posted on that agency's Web site. (ii) You may adjust your three-year overall goal during the three-year period to which it applies, in order to reflect changed circumstances. You must submit such an adjustment to the concerned operating administration for review and approval. (iii) The operating administration may direct you to undertake a review of your goal if necessary to ensure that the goal continues to fit your circumstances appropriately. (iv) While you are required to submit an overall goal to FHWA, FTA, or FAA only every three years, the overall goal and the provisions of Sec. 26.47(c) apply to each year during that three-year period. (v) You may make, for informational purposes, projections of your expected DBE achievements during each of the three years covered by your overall goal. However, it is the overall goal itself, and not these informational projections, to which the provisions of section 26.47(c) of this part apply. (2) If you are a recipient and set your overall goal on a project or grant basis as provided in paragraph (e)(3) of this section, you must submit the goal for review at a time determined by the FHWA, FTA or FAA Administrator, as applicable. (3) You must include with your overall goal submission a description of the methodology you used to establish the goal, including your base figure and the evidence with which it was calculated, and the adjustments you made to the base figure and the evidence you relied on for the adjustments. You should also include a summary listing of the relevant available evidence in your jurisdiction and, where applicable, an explanation of why you did not use that evidence to adjust your base figure. You must also include your projection of the portions of the overall goal you expect to meet through race-neutral and race-conscious measures, respectively (see 26.51 (c)). (4) You are not required to obtain prior operating administration concurrence with your overall goal. However, if the operating administration's review suggests that your overall goal has not been correctly calculated, or that your method for calculating goals is inadequate, the operating administration may, after consulting with you, adjust your overall goal or require that you do so. The adjusted overall goal is binding on you. (5) If you need additional time to collect data or take other steps to develop an approach to setting overall goals, you may request the approval of the concerned operating administration for an interim goal and/or goal- setting mechanism. Such a mechanism must: (i) Reflect the relative availability of DBEs in your local market to the maximum extent feasible given the data available to you; and (ii) Avoid imposing undue burdens on non-DBEs. (6) Timely submission and operating administration approval of your overall goal is a condition of eligibility for DOT financial assistance. Page 13 of 50 56 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (7) If you fail to establish and implement goals as provided in this section, you are not in compliance with this part. If you establish and implement goals in a way different from that provided in this part, you are not in compliance with this part. If you fail to comply with this requirement, you are not eligible to receive DOT financial assistance. (g) In establishing an overall goal, you must provide for public participation. This public participation must include: (1) Consultation with minority, women's and general contractor groups, community organizations, and other officials or organizations which could be expected to have information concerning the availability of disadvantaged and non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and your efforts to establish a level playing field for the participation of DBEs. (2) A published notice announcing your proposed overall goal, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at your principal office for 30 days following the date of the notice, and informing the public that you and the Department will accept comments on the goals for 45 days from the date of the notice. The notice must include addresses to which comments may be sent, and you must publish it in general circulation media and available minority-focused media and trade association publications. (h) Your overall goals must provide for participation by all certified DBEs and must not be subdivided into group- specific goals. [64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000; 68 FR 35553, June 16, 2003; 75 FR 5536, Feb. 3, 2010; 76 FR 5097, Jan. 28, 2011] § 26.47 Can recipients be penalized for failing to meet overall goals? (a) You cannot be penalized, or treated by the Department as being in noncompliance with this rule, because your DBE participation falls short of your overall goal, unless you have failed to administer your program in good faith. (b) If you do not have an approved DBE program or overall goal, or if you fail to implement your program in good faith, you are in noncompliance with this part. (c) If the awards and commitments shown on your Uniform Report of Awards or Commitments and Payments at the end of any fiscal year are less than the overall goal applicable to that fiscal year, you must do the following in order to be regarded by the Department as implementing your DBE program in good faith: (1) Analyze in detail the reasons for the difference between the overall goal and your awards and commitments in that fiscal year; (2) Establish specific steps and milestones to correct the problems you have identified in your analysis and to enable you to meet fully your goal for the new fiscal year; (3) (i) If you are a state highway agency; one of the 50 largest transit authorities as determined by the FTA; or an Operational Evolution Partnership Plan airport or other airport designated by the FAA, you must submit, within 90 days of the end of the fiscal year, the analysis and corrective actions developed under paragraphs (c)(1) and (2) of this section to the appropriate operating administration for approval. If the operating administration approves the report, you will be regarded as complying with the requirements of this section for the remainder of the fiscal year. (ii) As a transit authority or airport not meeting the criteria of paragraph (c)(3)(i) of this section, you must retain analysis and corrective actions in your records for three years and make it available to FTA or FAA on request for their review. (4) FHWA, FTA, or FAA may impose conditions on the recipient as part of its approval of the recipient's analysis and corrective actions including, but not limited to, modifications to your overall goal methodology, changes in your race-conscious/race-neutral split, or the introduction of additional race-neutral or race-conscious measures. (5) You may be regarded as being in noncompliance with this Part, and therefore subject to the remedies in §26.1 03 or §26.1 05 of this part and other applicable regulations, for failing to implement your DBE program in good faith if any of the following things occur: (i) You do not submit your analysis and corrective actions to FHWA, FTA, or FAA in a timely manner as required under paragraph (c)(3) of this section; (ii) FHWA, FTA, or FAA disapproves your analysis or corrective actions; or Page 14 of 50 57 ------------- TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (iii) You do not fully implement the corrective actions to which you have committed or conditions that FHWA, FTA, or FAA has imposed following review of your analysis and corrective actions. (d) If, as recipient, your Uniform Report of DBE Awards or Commitments and Payments or other information coming to the attention of FTA, FHWA, or FAA, demonstrates that current trends make it unlikely that you will achieve DBE awards and commitments that would be necessary to allow you to meet your overall goal at the end of the fiscal year, FHWA, FTA, or FAA, as applicable, may require you to make further good faith efforts, such as by modifying your race-conscious/race-neutral split or introducing additional race-neutral or race-conscious measures for the remainder of the fiscal year. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011] § 26.49 How are overall goals established for transit vehicle manufacturers? (a) If you are an FTA recipient, you must require in your DBE program that each transit vehicle manufacturer, as a condition of being authorized to bid or propose on FTA-assisted transit vehicle procurements, certify that it has complied with the requirements of this section. You do not include FTA assistance used in transit vehicle procurements in the base amount from which your overall goal is calculated. (b) If you are a transit vehicle manufacturer, you must establish and submit for FTA's approval an annual overall percentage goal. In setting your overall goal, you should be guided, to the extent applicable, by the principles underlying §26.45. The base from which you calculate this goal is the amount of FTA financial assistance included in transit vehicle contracts you will perfonm during the fiscal year in question. You must exclude from this base funds attributable to work performed outside the United States and its territories, possessions, and commonwealths. The requirements and procedures of this part with respect to submission and approval of overall goals apply to you as they do to recipients. (c) As a transit vehicle manufacturer, you may make the certification required by this section if you have submitted the goal this section requires and FTA has approved it or not disapproved it. (d) As a recipient, you may, with FTA approval, establish project-specific goals for DBE participation in the procurement of transit vehicles in lieu of complying through the procedures of this section. (e) If you are an FHWA or FAA recipient, you may, with FHWA or FAA approval, use the procedures of this section with respect to procurements of vehicles or specialized equipment. If you choose to do so, then the manufacturers of this equipment must meet the same requirements (including goal approval by FHWA or FAA) as transit vehicle manufacturers must meet in FTA-assisted procurements. § 26.51 What means do recipients use to meet overall goals? (a) You must meet the maximum feasible portion of your overall goal by using race-neutral means of facilitating DBE participation. Race-neutral DBE participation includes any time a DBE wins a prime contract through customary competitive procurement procedures, is awarded a subcontract on a prime contract that does not carry a DBE goal, or even if there is a DBE goal, wins a subcontract from a prime contractor that did not consider its DBE status in making the award (e.g., a prime contractor that uses a strict low bid system to award subcontracts). (b) Race-neutral means include, but are not limited to, the following: ( 1) Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate participation by DBEs and other small businesses and by making contracts more accessible to small businesses, by means such as those provided under §26.39 of this part. (2) Providing assistance in overcoming limitations such as inability to obtain bonding or financing (e.g., by such means as simplifying the bonding process, reducing bonding requirements, eliminating the impact of surety costs from bids, and providing services to help DBEs, and other small businesses, obtain bonding and financing); (3) Providing technical assistance and other services; (4) Carrying out information and communications programs on contracting procedures and specific contract opportunities (e.g., ensuring the inclusion of DBEs, and other small businesses, on recipient mailing lists for bidders; ensuring the dissemination to bidders on prime contracts of lists of potential subcontractors; provision of information in languages other than English, where appropriate); (5) Implementing a supportive services program to develop and improve immediate and long-term business management, record keeping, and financial and accounting capability for DBEs and other small businesses; Page 15 of 50 58 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (6) Providing services to help DBEs, and other small businesses, improve long-term development, increase opportunities to participate in a variety of kinds of work, handle increasingly significant projects, and achieve eventual self-sufficiency; (7) Establishing a program to assist new, start-up firms, particularly in fields in which DBE participation has historically been low; (8) Ensuring distribution of your DBE directory, through print and electronic means, to the widest feasible universe of potential prime contractors; and (9) Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and conduct business through electronic media. (c) Each time you submit your overall goal for review by the concerned operating administration, you must also submit your projection of the portion of the goal that you expect to meet through race-neutral means and your basis for that projection. This projection is subject to approval by the concerned operating administration, in conjunction with its review of your overall goal. (d) You must establish contract goals to meet any portion of your overall goal you do not project being able to meet using race-neutral means. (e) The following provisions apply to the use of contract goals: (1) You may use contract goals only on those DOT-assisted contracts that have subcontracting possibilities. (2) You are not required to set a contract goal on every DOT-assisted contract. You are not required to set each contract goal at the same percentage level as the overall goal. The goal for a specific contract may be higher or lower than that percentage level of the overall goal, depending on such factors as the type of work involved, the location of the work, and the availability of DBEs for the work of the particular contract. However, over the period covered by your overall goal, you must set contract goals so that they will cumulatively result in meeting any portion of your overall goal you do not project being able to meet through the use of race-neutral means. (3) Operating administration approval of each contract goal is not necessarily required. However, operating administrations may review and approve or disapprove any contract goal you establish. (4) Your contract goals must provide for participation by all certified DBEs and must not be subdivided into group-specific goals. (f) To ensure that your DBE program continues to be narrowly tailored to overcome the effects of discrimination, you must adjust your use of contract goals as follows: (1) If your approved projection under paragraph (c) of this section estimates that you can meet your entire overall goal for a given year through race-neutral means, you must implement your program without setting contract goals during that year, unless it becomes necessary in order meet your overall goal. Example to paragraph (f)(1): Your overall goal for Year 1 is 12 percent. You estimate that you can obtain 12 percent or more DBE participation through the use of race-neutral measures, without any use of contract goals. In this case, you do not set any contract goals for the contracts that will be performed in Year 1. However, if part way through Year 1, your DBE awards or commitments are not at a level that would permit you to achieve your overall goal for Year 1, you could begin setting race-conscious DBE contract goals during the remainder of the year as part of your obligation to implement your program in good faith. Example to paragraph (f)(1): Your overall goal for Year I is 12 percent. You estimate that you can obtain 12 percent or more DBE participation through the use of race-neutral measures, without any use of contract goals. In this case, you do not set any contract goals for the contracts that will be performed in Year I. (2) If, during the course of any year in which you are using contract goals, you determine that you will exceed your overall goal, you must reduce or eliminate the use of contract goals to the extent necessary to ensure that the use of contract goals does not result in exceeding the overall goal. If you determine that you will fall short of your overall goal, then you must make appropriate modifications in your use of race-neutral and/or race-conscious measures to allow you to meet the overall goal. Example to paragraph (f)(2): In Year II, your overall goal is 12 percent. You have estimated that you can obtain 5 percent DBE participation through use of race-neutral measures. You therefore plan to obtain the remaining 7 percent participation through use of DBE goals. By September, you have already obtained 11 percent DBE participation for the year. For contracts let during the remainder of the year, you use contract goals only to the extent necessary to obtain an additional one percent DBE participation. However, if you determine in September that your participation for the year is likely to be only 8 percent total, then you would Page 16 of 50 59 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs increase your use of race-neutral and/or race-conscious means during the remainder of the year in order to achieve your overall goal. (3) If the DBE participation you have obtained by race-neutral means alone meets or exceeds your overall goals for two consecutive years, you are not required to make a projection of the amount of your goal you can meet using such means in the next year. You do not set contract goals on any contracts in the next year. You continue using only race-neutral means to meet your overall goals unless and until you do not meet your overall goal for a year. Example to paragraph (f)(3): Your overall goal for Years I and Year II is 10 percent. The DBE participation you obtain through race-neutral measures alone is 10 percent or more in each year. (For this purpose, it does not matter whether you obtained additional DBE participation through using contract goals in these years.) In Year Ill and following years, you do not need to make a projection under paragraph (c) of this section of the portion of your overall goal you expect to meet using race-neutral means. You simply use race-neutral means to achieve your overall goals. However, if in Year VI your DBE participation falls short of your overall goal, then you must make a paragraph (c) projection for Year VII and, if necessary, resume use of contract goals in that year. (4) If you obtain DBE participation that exceeds your overall goal in two consecutive years through the use of contract goals (i.e., not through the use of race-neutral means alone), you must reduce your use of contract goals proportionately in the following year. Example to paragraph (f)(4): In Years I and II, your overall goal is 12 percent, and you obtain 14 and 16 percent DBE participation, respectively. You have exceeded your goals over the two-year period by an average of 25 percent. In Year Ill, your overall goal is again 12 percent, and your paragraph (c) projection estimates that you will obtain 4 percent DBE participation through race-neutral means and 8 percent through contract goals. You then reduce the contract goal projection by 25 percent (i.e., from 8 to 6 percent) and set contract goals accordingly during the year. If in Year Ill you obtain 11 percent participation, you do not use this contract goal adjustment mechanism for Year IV, because there have not been two consecutive years of exceeding overall goals. (g) In any year in which you project meeting part of your goal through race-neutral means and the remainder through contract goals, you must maintain data separately on DBE achievements in those contracts with and without contract goals, respectively. You must report this data to the concerned operating administration as provided in §26.11. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011] § 26.53 What are the good faith efforts procedures recipients follow in situations where there are contract goals? (a) When you have established a DBE contract goal, you must award the contract only to a bidder/offeror who makes good faith efforts to meet it. You must determine that a bidder/offeror has made good faith efforts if the bidder/offeror does either of the following things: (1) Documents that it has obtained enough DBE participation to meet the goal; or (2) Documents that it made adequate good faith efforts to meet the goal, even though it did not succeed in obtaining enough DBE participation to do so. If the bidder/offeror does document adequate good faith efforts, you must not deny award of the contract on the basis that the bidder/offeror failed to meet the goal. See Appendix A of this part for guidance in determining the adequacy of a bidder/offeror's good faith efforts. (b) In your solicitations for DOT-assisted contracts for which a contract goal has been established, you must require the following: (1) Award of the contract will be conditioned on meeting the requirements of this section; (2) All bidders/offerors will be required to submit the following information to the recipient, at the time provided in paragraph (b)(3) of this section: (i) The names and addresses of DBE firms that will participate in the contract; (ii) A description of the work that each DBE will perform; (iii) The dollar amount of the participation of each DBE firm participating; 60 Page 17 of 50 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (iv) Written documentation of the bidder/offeror's commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; (v) Written confirmation from the DBE that it is participating in the contract as provided in the prime contractor's commitment; and (vi) If the contract goal is not met, evidence of good faith efforts (see Appendix A of this part); and (3) At your discretion, the bidder/offeror must present the information required by paragraph (b)(2) of this section- (i) Under sealed bid procedures, as a matter of responsiveness, or with initial proposals, under contract negotiation procedures; or (ii) At any time before you commit yourself to the performance of the contract by the bidder/offeror, as a matter of responsibility. (c) You must make sure all information is complete and accurate and adequately documents the bidder/offeror's good faith efforts before committing yourself to the performance of the contract by the bidder/offeror. (d) If you determine that the apparent successful bidder/offeror has failed to meet the requirements of paragraph (a) of this section, you must, before awarding the contract, provide the bidder/offeror an opportunity for administrative reconsideration. (1) As part of this reconsideration, the bidder/offeror must have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. (2) Your decision on reconsideration must be made by an official who did not take part in the original determination that the bidder/offeror failed to meet the goal or make adequate good faith efforts to do so. (3) The bidder/offeror must have the opportunity to meet in person with your reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so. (4) You must send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. (5) The result of the reconsideration process is not administratively appealable to the Department of Transportation. (e) In a "design-build" or "turnkey" contracting situation, in which the recipient lets a master contract to a contractor, who in turn lets subsequent subcontracts for the work of the project, a recipient may establish a goal for the project. The master contractor then establishes contract goals, as appropriate, for the subcontracts it lets. Recipients must maintain oversight of the master contractor's activities to ensure that they are conducted consistent with the requirements of this part. (f) (1) You must require that a prime contractor not terminate a DBE subcontractor listed in response to paragraph (b)(2) of this section (or an approved substitute DBE firm) without your prior written consent. This includes, but is not limited to, instances in which a prime contractor seeks to perform work originally designated for a OBE subcontractor with its own forces or those of an affiliate, a non-DBE firm, or with another DBE firm. (2) You may provide such written consent only if you agree, for reasons stated in your concurrence document, that the prime contractor has good cause to terminate the DBE firm. (3) For purposes of this paragraph, good cause includes the following circumstances: (i) The listed DBE subcontractor fails or refuses to execute a written contract; (ii) The listed DBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with normal industry standards. Provided, however, that good cause does not exist if the failure or refusal of the DBE subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the prime contractor; (iii) The listed DBE subcontractor fails or refuses to meet the prime contractor's reasonable, nondiscriminatory bond requirements. (iv) The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness; (v) The listed DBE subcontractor is ineligible to work on public works projects because of suspension and debarment proceedings pursuant 2 CFR Parts 180, 215 and 1 ,200 or applicable state law; (vii) You have determined that the listed DBE subcontractor is not a responsible contractor; Page 18 of 50 61 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (vi) The listed DBE subcontractor voluntarily withdraws from the project and provides to you written notice of its withdrawal; (vii) The listed DBE is ineligible to receive DBE credit for the type of work required; (viii) A DBE owner dies or becomes disabled with the result that the listed DBE contractor is unable to complete its work on the contract; (ix) Other documented good cause that you determine compels the termination of the DBE subcontractor. Provided, that good cause does not exist if the prime contractor seeks to terminate a DBE it relied upon to obtain the contract so that the prime contractor can self-perform the work for which the DBE contractor was engaged or so that the prime contractor can substitute another DBE or non-DBE contractor after contract award. (4) Before transmitting to you its request to terminate and/or substitute a DBE subcontractor, the prime contractor must give notice in writing to the DBE subcontractor, with a copy to you, of its intent to request to terminate and/or substitute, and the reason for the request. (5) The prime contractor must give the DBE five days to respond to the prime contractor's notice and advise you and the contractor of the reasons, if any, why it objects to the proposed termination of its subcontract and why you should not approve the prime contractor's action. If required in a particular case as a matter of public necessity (e.g., safety), you may provide a response period shorter than five days. (6) In addition to post-award terminations, the provisions of this section apply to pre-award deletions of or substitutions for DBE firms put forward by offerors in negotiated procurements. (g) When a DBE subcontractor is terminated, or fails to complete its work on the contract for any reason, you must require the prime contractor to make good faith efforts to find another DBE subcontractor to substitute for the original DBE. These good faith efforts shall be directed at finding another DBE to perform at least the same amount of work under the contract as the DBE that was terminated, to the extent needed to meet the contract goal you established for the procurement. (h) You must include in each prime contract a provision for appropriate administrative remedies that you will invoke if the prime contractor fails to comply with the requirements of this section. (i) You must apply the requirements of this section to DBE bidders/offerors for prime contracts. In determining whether a DBE bidder/offeror for a prime contract has met a contract goal, you count the work the DBE has committed to performing with its own forces as well as the work that it has committed to be performed by DBE subcontractors and DBE suppliers. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011) § 26.55 How is DBE participation counted toward goals? (a) When a DBE participates in a contract, you count only the value of the work actually performed by the DBE toward DBE goals. (1) Count the entire amount of that portion of a construction contract (or other contract not covered by paragraph (a)(2) of this section) that is performed by the DBE's own forces. Include the cost of supplies and materials obtained by the DBE for the work of the contract, including supplies purchased or equipment leased by the DBE (except supplies and equipment the DBE subcontractor purchases or leases from the prime contractor or its affiliate). (2) Count the entire amount of fees or commissions charged by a DBE firm for providing a bona fide service, such as professional, technical, consultant, or managerial services, or for providing bonds or insurance specifically required for the performance of a DOT-assisted contract, toward DBE goals, provided you determine the fee to be reasonable and not excessive as compared with fees customarily allowed for similar services. (3) When a DBE subcontracts part of the work of its contract to another firm, the value of the subcontracted work may be counted toward DBE goals only if the DBE's subcontractor is itself a DBE. Work that a DBE subcontracts to a non-DBE firm does not count toward DBE goals. (b) When a DBE performs as a participant in a joint venture, count a portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the DBE performs with its own forces toward DBE goals. Page 19 of 50 62 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (c) Count expenditures to a DBE contractor toward DBE goals only if the DBE is performing a commercially useful function on that contract (1) A DBE performs a commercially useful function when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a commercially useful function, you must evaluate the amount of work subcontracted, industry practices, whether the amount the finm is to be paid under the contract is commensurate with the work it is actually performing and the DBE credit claimed for its performance of the work, and other relevant factors. (2) A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, you must examine similar transactions, particularly those in which DBEs do not participate. (3) If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, you must presume that it is not performing a commercially useful function. (4) When a DBE is presumed not to be perfonming a commercially useful function as provided in paragraph (c)(3) of this section, the DBE may present evidence to rebut this presumption. You may determine that the firm is perfonming a commercially useful function given the type of work involved and normal industry practices. (5) Your decisions on commercially useful function matters are subject to review by the concerned operating administration, but are not administratively appealable to DOT. (d) Use the following factors in determining whether a DBE trucking company is perfonming a commercially useful function: (1) The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting DBE goals. (2) The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the contract. (3) The DBE receives credit for the total value of the transportation services it provides on the contract using trucks it owns, insures, and operates using drivers it employs. (4) The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the contract. (5) The DBE may also lease trucks from a non-DBE firm, including from an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE lessees not to exceed the value of transportation services provided by DBE-owned trucks on the contract. Additional participation by non-DBE lessees receives credit only for the fee or commission it receives as a result of the lease arrangement If a recipient chooses this approach, it must obtain written consent from the appropriate Department Operating Administration. Example to this paragraph (d)(5): DBE Firm X uses two of its own trucks on a contract. It leases two trucks from DBE Firm Y and six trucks from non-DBE Finm Z. DBE credit would be awarded for the total value of transportation services provided by Firm X and Firm Y, and may also be awarded for the total value of transportation services provided by four of the six trucks provided by Firm Z. In all, full credit would be allowed for the participation of eight trucks. With respect to the other two trucks provided by Firm Z, DBE credit could be awarded only for the fees or commissions pertaining to those trucks Firm X receives as a result of the lease with Firm Z. (6) For purposes of this paragraph (d), a lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so 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. (e) Count expenditures with DBEs for materials or supplies toward DBE goals as provided in the following: Page 20 of 50 63 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (1) (i) If the materials or supplies are obtained from a DBE manufacturer, count 100 percent of the cost of the materials or supplies toward DBE goals. (ii) For purposes of this paragraph (e)(1 ), a manufacturer is a firm that operates or maintains a factory or establishment that produces, on the premises, the materials, supplies, articles, or equipment required under the contract and of the general character described by the specifications. (2) (i) If the materials or supplies are purchased from a DBE regular dealer, count 60 percent of the cost of the materials or supplies toward DBE goals. (ii) For purposes of this section, a 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 specifications and required under the contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. (A) To be a 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. (B) A person may be a regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone, or asphalt without owning, operating, or maintaining a place of business as provided in this paragraph (e)(2)(ii) if the person both owns and operates distribution equipment for the products. Any supplementing of regular dealers' own distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis. (C) Packagers, brokers, manufacturers' representatives, or other persons who arrange or expedite transactions are not regular dealers within the meaning of this paragraph (e)(2). (3) With respect to materials or supplies purchased from a DBE which is neither a manufacturer nor a regular dealer, count the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on a job site, toward DBE goals, provided you determine the fees to be reasonable and not excessive as compared with fees customarily allowed for similar services. Do not count any portion of the cost of the materials and supplies themselves toward DBE goals, however. (f) If a firm is not currently certified as a DBE in accordance with the standards of subpart D of this part at the time of the execution of the contract, do not count the firm's participation toward any DBE goals, except as provided for in §26.87(i)). (g) Do not count the dollar value of work performed under a contract with a firm after it has ceased to be certified toward your overall goal. (h) Do not count the participation of a DBE subcontractor toward a contractor's final compliance with its DBE obligations on a contract until the amount being counted has actually been paid to the DBE. [64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003] Subpart D-Certification Standards § 26.61 How are burdens of proof allocated in the certification process? (a) In determining whether to certify a firm as eligible to participate as a DBE, you must apply the standards of this subpart. (b) The firm seeking certification has the burden of demonstrating to you, by a preponderance of the evidence, that it meets the requirements of this subpart concerning group membership or individual disadvantage, business size, ownership, and control. (c) You must rebuttably presume that members of the designated groups identified in §26.67(a) are socially and economically disadvantaged. This means they do not have the burden of proving to you that they are socially and economically disadvantaged. In order to obtain the benefit of the rebuttable presumption, individuals must submit a signed, notarized statement that they are a member of one of the groups in §26.67(a). Applicants do have the obligation to provide you information concerning their economic disadvantage (see §26.67). (d) Individuals who are not presumed to be socially and economically disadvantaged, and individuals concerning whom the presumption of disadvantage has been rebutted, have the burden of proving to you, by a Page 21 of 50 64 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs preponderance of the evidence, that they are socially and economically disadvantaged. (See Appendix E of this part.) (e) You must make determinations concerning whether individuals and firms have met their burden of demonstrating group membership, ownership, control, and social and economic disadvantage (where disadvantage must be demonstrated on an individual basis) by considering all the facts in the record, viewed as a whole. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35554, June 16, 2003) § 26.63 What rules govern group membership determinations? (a) ( 1) If, after reviewing the signed notarized statement of membership in a presumptively disadvantaged group (see §26.61 (c)}, you have a well founded reason to question the individual's claim of membership in that group, you must require the individual to present additional evidence that he or she is a member of the group. (2) You must provide the individual a written explanation of your reasons for questioning his or her group membership and a written request for additional evidence as outlined in paragraph (b) of this section. (3) In implementing this section, you must take special care to ensure that you do not impose a disproportionate burden on members of any particular designated group. Imposing a disproportionate burden on members of a particular group could violate §26. 7(b) and/or Title VI of the Civil Rights Act of 1964 and 49 CFR part 21. (b) In making such a determination, you must consider whether the person has held himself out to be a member of the group over a long period of time prior to application for certification and whether the person is regarded as a member of the group by the relevant community. You may require the applicant to produce appropriate documentation of group membership. ( 1) If you determine that an individual claiming to be a member of a group presumed to be disadvantaged is not a member of a designated disadvantaged group, the individual must demonstrate social and economic disadvantage on an individual basis. (2) Your decisions concerning membership in a designated group are subject to the certification appeals procedure of §26.89. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35554, June 16, 2003) § 26.65 What rules govern business size determinations? (a) To be an eligible DBE, a firm (including its affiliates) must be an existing small business, as defined by Small Business Administration (SBA) standards. As a recipient, you must apply current SBA business size standard(s) found in 13 CFR part 121 appropriate to the type(s) of work the firm seeks to perform in DOT-assisted contracts. (b) Even if it meets the requirements of paragraph (a) of this section, a firm is not an eligible DBE in any Federal fiscal year if the firm (including its affiliates) has had average annual gross receipts, as defined by SBA regulations (see 13 CFR 121.402}, over the firm's previous three fiscal years, in excess of $22.41 million. (c) The Department adjusts the number in paragraph (b) of this section annually using the Department of Commerce price deflators for purchases by State and local governments as the basis for this adjustment. [74 FR 15224, Apr. 3, 2009) § 26.67 What rules determine social and economic disadvantage? (a) Presumption of disadvantage. (1) You must rebuttably presume that citizens of the United States (or lawfully admitted permanent residents) who are women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or other minorities found to be disadvantaged by the SBA, are socially and economically disadvantaged individuals. You must require applicants to submit a signed, notarized certification that each presumptively disadvantaged owner is, in fact, socially and economically disadvantaged. (2) (i) You must require each individual owner of a firm applying to participate as a DBE, whose ownership and control are relied upon for DBE certification to certify that he or she has a personal net worth that does not exceed $1.32 million. Page 22 of 50 65 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (ii) You must require each individual who makes this certification to support it with a signed, notarized statement of personal net worth, with appropriate supporting documentation. This statement and documentation must not be unduly lengthy, burdensome, or intrusive. (iii) In determining an individual's net worth, you must observe the following requirements: (A) Exclude an individual's ownership interest in the applicant firm; (B) Exclude the individual's equity in his or her primary residence (except any portion of such equity that is attributable to excessive withdrawals from the applicant firm). (C) Do not use a contingent liability to reduce an individual's net worth. (D) With respect to assets held in vested pension plans, Individual Retirement Accounts, 401 (k) accounts, or other retirement savings or investment programs in which the assets cannot be distributed to the individual at the present time without significant adverse tax or interest consequences, include only the present value of such assets, less the tax and interest penalties that would accrue if the asset were distributed at the present time. (iv) Notwithstanding any provision of Federal or state law, you must not release an individual's personal net worth statement nor any documents pertaining to it to any third party without the written consent of the submitter. Provided, that you must transmit this information to DOT in any certification appeal proceeding under section 26.89 of this part or to any other state to which the individual's firm has applied for certification under §26.85 of this part. (b) Rebuttal of presumption of disadvantage. (1) If the statement of personal net worth that an individual submits under paragraph (a)(2) of this section shows that the individual's personal net worth exceeds $1.32 million, the individual's presumption of economic disadvantage is rebutted. You are not required to have a proceeding under paragraph (b)(2) of this section in order to rebut the presumption of economic disadvantage in this case. (2) If you have a reasonable basis to believe that an individual who is a member of one of the designated groups is not, in fact, socially and/or economically disadvantaged you may, at any time, start a proceeding to determine whether the presumption should be regarded as rebutted with respect to that individual. Your proceeding must follow the procedures of §26.87. (3) In such a proceeding, you have the burden of demonstrating, by a preponderance of the evidence, that the individual is not socially and economically disadvantaged. You may require the individual to produce information relevant to the determination of his or her disadvantage. (4) When an individual's presumption of social and/or economic disadvantage has been rebutted, his or her ownership and control of the firm in question cannot be used for purposes of DBE eligibility under this subpart unless and until he or she makes an individual showing of social and/or economic disadvantage. If the basis for rebutting the presumption is a determination that the individual's personal net worth exceeds $1.32 million, the individual is no longer eligible for participation in the program and cannot regain eligibility by making an individual showing of disadvantage. (c) [Reserved) (d) Individual determinations of social and economic disadvantage. Firms owned and controlled by individuals who are not presumed to be socially and economically disadvantaged (including individuals whose presumed disadvantage has been rebutted) may apply for DBE certification. You must make a case-by-case determination of whether each individual whose ownership and control are relied upon for DBE certification is socially and economically disadvantaged. In such a proceeding, the applicant firm has the burden of demonstrating to you, by a preponderance of the evidence, that the individuals who own and control it are socially and economically disadvantaged. An individual whose personal net worth exceeds $1.32 million shall not be deemed to be economically disadvantaged. In making these determinations, use the guidance found in Appendix E of this part. You must require that applicants provide sufficient information to permit determinations under the guidance of Appendix E of this part. [64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 68 FR 35554, June 16, 2003; 76 FR 5099, Jan. 28, 2011) § 26.69 What rules govern determinations of ownership? (a) In determining whether the socially and economically disadvantaged participants in a firm own the firm, you must consider all the facts in the record, viewed as a whole. Page 23 of 50 66 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (b) To be an eligible DBE, a firm must be at least 51 percent owned by socially and economically disadvantaged individuals. (1) In the case of a corporation, such individuals must own at least 51 percent of the each class of voting stock outstanding and 51 percent of the aggregate of all stock outstanding. (2) In the case of a partnership, 51 percent of each class of partnership interest must be owned by socially and economically disadvantaged individuals. Such ownership must be reflected in the firm's partnership agreement. (3) In the case of a limited liability company, at least 51 percent of each class of member interest must be owned by socially and economically disadvantaged individuals. (c) The firm's ownership by socially and economically disadvantaged individuals must be real, substantial, and continuing, going beyond pro forma ownership of the firm as reflected in ownership documents. The disadvantaged owners must enjoy the customary incidents of ownership, and share in the risks and profits commensurate with their ownership interests, as demonstrated by the substance, not merely the form, of arrangements. (d) All securities that constitute ownership of a firm shall be held directly by disadvantaged persons. Except as provided in this paragraph (d), no securities or assets held in trust, or by any guardian for a minor, are considered as held by disadvantaged persons in determining the ownership of a firm. However, securities or assets held in trust are regarded as held by a disadvantaged individual for purposes of determining ownership of the firm, if- (1) The beneficial owner of securities or assets held in trust is a disadvantaged individual, and the trustee is the same or another such individual; or (2) The beneficial owner of a trust is a disadvantaged individual who, rather than the trustee, exercises effective control over the management, policy-making, and daily operational activities of the firm. Assets held in a revocable living trust may be counted only in the situation where the same disadvantaged individual is the sole grantor, beneficiary, and trustee. (e) The contributions of capital or expertise by the socially and economically disadvantaged owners to acquire their ownership interests must be real and substantial. Examples of insufficient contributions include a promise to contribute capital, an unsecured note payable to the firm or an owner who is not a disadvantaged individual, or mere participation in a firm's activities as an employee. Debt instruments from financial institutions or other organizations that lend funds in the normal course of their business do not render a firm ineligible, even if the debtor's ownership interest is security for the loan. (f) The following requirements apply to situations in which expertise is relied upon as part of a disadvantaged owner's contribution to acquire ownership: (1) The owner's expertise must be- (i) In a specialized field; (ii) Of outstanding quality; (iii) In areas critical to the firm's operations; (iv) Indispensable to the firm's potential success; (v) Specific to the type of work the firm performs; and (vi) Documented in the records of the firm. These records must clearly show the contribution of expertise and its value to the firm. (2) The individual whose expertise is relied upon must have a significant financial investment in the firm. (g) You must always deem as held by a socially and economically disadvantaged individual, for purposes of determining ownership, all interests in a business or other assets obtained by the individual- (1) As the result of a final property settlement or court order in a divorce or legal separation, provided that no term or condition of the agreement or divorce decree is inconsistent with this section; or (2) Through inheritance, or otherwise because of the death of the former owner. (h) (1) You must presume as not being held by a socially and economically disadvantaged individual, for purposes of determining ownership, all interests in a business or other assets obtained by the individual as the result of a gift, or transfer without adequate consideration, from any non-disadvantaged individual or non-DBE firm who is- Page 24 of 50 67 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (i) Involved in the same firm for which the individual is seeking certification, or an affiliate of that firm; (ii) Involved in the same or a similar line of business; or (iii) Engaged in an ongoing business relationship with the firm, or an affiliate of the firm, for which the individual is seeking certification. (2) To overcome this presumption and permit the interests or assets to be counted, the disadvantaged individual must demonstrate to you, by clear and convincing evidence, that- (i) The gift or transfer to the disadvantaged individual was made for reasons other than obtaining certification as a DBE; and (ii) The disadvantaged individual actually controls the management, policy, and operations of the firm, notwithstanding the continuing participation of a non-disadvantaged individual who provided the gift or transfer. (i) You must apply the following rules in situations in which marital assets form a basis for ownership of a firm: (1) When marital assets (other than the assets of the business in question), held jointly or as community property by both spouses, are used to acquire the ownership interest asserted by one spouse, you must deem the ownership interest in the firm to have been acquired by that spouse with his or her own individual resources, provided that the other spouse irrevocably renounces and transfers all rights in the ownership interest in the manner sanctioned by the laws of the state in which either spouse or the firm is domiciled. You do not count a greater portion of joint or community property assets toward ownership than state law would recognize as belonging to the socially and economically disadvantaged owner of the applicant firm. (2) A copy of the document legally transferring and renouncing the other spouse's rights in the jointly owned or community assets used to acquire an ownership interest in the firm must be included as part of the firm's application for DBE certification. U) You may consider the following factors in determining the ownership of a firm. However, you must not regard a contribution of capital as failing to be real and substantial, or find a firm ineligible, solely because- (1) A socially and economically disadvantaged individual acquired his or her ownership interest as the result of a gift, or transfer without adequate consideration, other than the types set forth in paragraph (h) of this section; (2) There is a provision for the co-signature of a spouse who is not a socially and economically disadvantaged individual on financing agreements, contracts for the purchase or sale of real or personal property, bank signature cards, or other documents; or (3) Ownership of the firm in question or its assets is transferred for adequate consideration from a spouse who is not a socially and economically disadvantaged individual to a spouse who is such an individual. In this case, you must give particularly close and careful scrutiny to the ownership and control of a firm to ensure that it is owned and controlled, in substance as well as in form, by a socially and economically disadvantaged individual. § 26.71 What rules govern determinations concerning control? (a) In determining whether socially and economically disadvantaged owners control a firm, you must consider all the facts in the record, viewed as a whole. (b) Only an independent business may be certified as a DBE. An independent business is one the viability of which does not depend on its relationship with another firm or firms. (1) In determining whether a potential DBE is an independent business, you must scrutinize relationships with non-DBE firms, in such areas as personnel, facilities, equipment, financial and/or bonding support, and other resources. (2) You must consider whether present or recent employer/employee relationships between the disadvantaged owner(s) of the potential DBE and non-DBE firms or persons associated with non-DBE firms compromise the independence of the potential DBE firm. (3) You must examine the firm's relationships with prime contractors to determine whether a pattern of exclusive or primary dealings with a prime contractor compromises the independence of the potential DBE firm. (4) In considering factors related to the independence of a potential DBE firm, you must consider the consistency of relationships between the potential DBE and non-DBE firms with normal industry practice. Page 25 of 50 68 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (c) A DBE firm must not be subject to any formal or informal restrictions which limit the customary discretion of the socially and economically disadvantaged owners. There can be no restrictions through corporate charter provisions, by-law provisions, contracts or any other formal or informal devices (e.g., cumulative voting rights, voting powers attached to different classes of stock, employment contracts, requirements for concurrence by non-disadvantaged partners, conditions precedent or subsequent, executory agreements, voting trusts, restrictions on or assignments of voting rights) that prevent the socially and economically disadvantaged owners, without the cooperation or vote of any non-disadvantaged individual, from making any business decision of the firm. This paragraph does not preclude a spousal co-signature on documents as provided for in §26.69(j)(2). (d) The socially and economically disadvantaged owners must possess the power to direct or cause the direction of the management and policies of the firm and to make day-to-day as well as long-term decisions on matters of management, policy and operations. (1) A disadvantaged owner must hold the highest officer position in the company (e.g., chief executive officer or president). (2) In a corporation, disadvantaged owners must control the board of directors. (3) In a partnership, one or more disadvantaged owners must serve as general partners, with control over all partnership decisions. (e) Individuals who are not socially and economically disadvantaged may be involved in a DBE firm as owners, managers, employees, stockholders, officers, and/or directors. Such individuals must not, however, possess or exercise the power to control the firm, or be disproportionately responsible for the operation of the firm. (f) The socially and economically disadvantaged owners of the firm may delegate various areas of the management, policymaking, or daily operations of the firm to other participants in the firm, regardless of whether these participants are socially and economically disadvantaged individuals. Such delegations of authority must be revocable, and the socially and economically disadvantaged owners must retain the power to hire and fire any person to whom such authority is delegated. The managerial role of the socially and economically disadvantaged owners in the firm's overall affairs must be such that the recipient can reasonably conclude that the socially and economically disadvantaged owners actually exercise control over the firm's operations, management, and policy. (g) The socially and economically disadvantaged owners must have an overall understanding of, and managerial and technical competence and experience directly related to, the type of business in which the firm is engaged and the firm's operations. The socially and economically disadvantaged owners are not required to have experience or expertise in every critical area of the firm's operations, or to have greater experience or expertise in a given field than managers or key employees. The socially and economically disadvantaged owners must have the ability to intelligently and critically evaluate information presented by other participants in the firm's activities and to use this information to make independent decisions concerning the firm's daily operations, management, and policymaking. Generally, expertise limited to office management, administration, or bookkeeping functions unrelated to the principal business activities of the firm is insufficient to demonstrate control. (h) If state or local law requires the persons to have a particular license or other credential in order to own and/or control a certain type of firm, then the socially and economically disadvantaged persons who own and control a potential DBE firm of that type must possess the required license or credential. If state or local law does not require such a person to have such a license or credential to own and/or control a firm, you must not deny certification solely on the ground that the person lacks the license or credential. However, you may take into account the absence of the license or credential as one factor in determining whether the socially and economically disadvantaged owners actually control the firm. (i) (1) You may consider differences in remuneration between the socially and economically disadvantaged owners and other participants in the firm in determining whether to certify a firm as a DBE. Such consideration shall be in the context of the duties of the persons involved, normal industry practices, the firm's policy and practice concerning reinvestment of income, and any other explanations for the differences proffered by the firm. You may determine that a firm is controlled by its socially and economically disadvantaged owner although that owner's remuneration is lower than that of some other participants in the firm. (2) In a case where a non-disadvantaged individual formerly controlled the firm, and a socially and economically disadvantaged individual now controls it, you may consider a difference between the remuneration of the former and current controller of the firm as a factor in determining who controls the firm, particularly when the non-disadvantaged individual remains involved with the firm and continues to receive greater compensation than the disadvantaged individual. Page 26 of 50 69 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs 0) In order to be viewed as controlling a firm, a socially and economically disadvantaged owner cannot engage in outside employment or other business interests that conflict with the management of the firm or prevent the individual from devoting sufficient time and attention to the affairs of the firm to control its activities. For example, absentee ownership of a business and part-time work in a full-time firm are not viewed as constituting control. However, an individual could be viewed as controlling a part-time business that operates only on evenings and/or weekends, if the individual controls it all the time it is operating. (k) ( 1) A socially and economically disadvantaged individual may control a firm even though one or more of the individual's immediate family members (who themselves are not socially and economically disadvantaged individuals) participate in the firm as a manager, employee, owner, or in another capacity. Except as otherwise provided in this paragraph, you must make a judgment about the control the socially and economically disadvantaged owner exercises vis-a-vis other persons involved in the business as you do in other situations, without regard to whether or not the other persons are immediate family members. (2) If you cannot determine that the socially and economically disadvantaged owners-as distinct from the family as a whole-control the firm, then the socially and economically disadvantaged owners have failed to carry their burden of proof concerning control, even though they may participate significantly in the firm's activities. (I) Where a firm was formerly owned and/or controlled by a non-disadvantaged individual (whether or not an immediate family member), ownership and/or control were transferred to a socially and economically disadvantaged individual, and the non-disadvantaged individual remains involved with the firm in any capacity, the disadvantaged individual now owning the firm must demonstrate to you, by clear and convincing evidence, that: (1) The transfer of ownership and/or control to the disadvantaged individual was made for reasons other than obtaining certification as a DBE; and (2) The disadvantaged individual actually controls the management, policy, and operations of the firm, notwithstanding the continuing participation of a non-disadvantaged individual who formerly owned and/or controlled the firm. (m) In determining whether a firm is controlled by its socially and economically disadvantaged owners, you may consider whether the firm owns equipment necessary to perform its work. However, you must not determine that a firm is not controlled by socially and economically disadvantaged individuals solely because the firm leases, rather than owns, such equipment, where leasing equipment is a normal industry practice and the lease does not involve a relationship with a prime contractor or other party that compromises the independence of the firm. (n) You must grant certification to a firm only for specific types of work in which the socially and economically disadvantaged owners have the ability to control the firm. To become certified in an additional type of work, the firm need demonstrate to you only that its socially and economically disadvantaged owners are able to control the firm with respect to that type of work. You must not require that the firm be recertified or submit a new application for certification, but you must verify the disadvantaged owner's control of the firm in the additional type of work. (1) The types of work a firm can perform (whether on initial certification or when a new type of work is added) must be described in terms of the most specific available NAICS code for that type of work. If you choose, you may also, in addition to applying the appropriate NAICS code, apply a descriptor from a classification scheme of equivalent detail and specificity. A correct NAICS code is one that describes, as specifically as possible, the principal goods or services which the firm would provide to DOT recipients. Multiple NAICS codes may be assigned where appropriate. Program participants must rely on, and not depart from, the plain meaning of NAICS code descriptions in determining the scope of a firm's certification. If your Directory does not list types of work for any firm in a manner consistent with this paragraph (a)(1 ), you must update the Directory entry for that firm to meet the requirements of this paragraph (a)( 1) by August 28, 2011. (2) Firms and recipients must check carefully to make sure that the NAICS codes cited in a certification are kept up-to-date and accurately reflect work which the UCP has determined the firm's owners can control. The firm bears the burden of providing detailed company information the certifying agency needs to make an appropriate NAICS code designation. (3) If a firm believes that there is not a NAICS code that fully or clearly describes the type(s) of work in which it is seeking to be certified as a DBE, the firm may request that the certifying agency, in its certification documentation, supplement the assigned NAICS code(s) with a clear, specific, and detailed narrative description of the type of work in which the firm is certified. A vague, general, or confusing description is not sufficient for this purpose, and recipients should not rely on such a description in determining whether a firm's participation can be counted toward DBE goals. Page 27 of 50 70 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (4) A certifier is not precluded from changing a certification classification or description if there is a factual basis in the record. However, certifiers must not make after-the-fact statements about the scope of a certification, not supported by evidence in the record of the certification action. (o) A business operating under a franchise or license agreement may be certified if it meets the standards in this subpart and the franchiser or licenser is not affiliated with the franchisee or licensee. In determining whether affiliation exists, you should generally not consider the restraints relating to standardized quality, advertising, accounting format, and other provisions imposed on the franchisee or licensee by the franchise agreement or license, provided that the franchisee or licensee has the right to profit from its efforts and bears the risk of loss commensurate with ownership. Alternatively, even though a franchisee or licensee may not be controlled by virtue of such provisions in the franchise agreement or license, affiliation could arise through other means, such as common management or excessive restrictions on the sale or transfer of the franchise interest or license. (p) In order for a partnership to be controlled by socially and economically disadvantaged individuals, any non- disadvantaged partners must not have the power, without the specific written concurrence of the socially and economically disadvantaged partner(s}, to contractually bind the partnership or subject the partnership to contract or tort liability. (q) The socially and economically disadvantaged individuals controlling a firm may use an employee leasing company. The use of such a company does not preclude the socially and economically disadvantaged individuals from controlling their firm if they continue to maintain an employer-employee relationship with the leased employees. This includes being responsible for hiring, firing, training, assigning, and otherwise controlling the on-the-job activities of the employees, as well as ultimate responsibility for wage and tax obligations related to the employees. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5099, Jan. 28, 2011] § 26.73 What are other rules affecting certification? (a) (1) Consideration of whether a firm performs a commercially useful function or is a regular dealer pertains solely to counting toward DBE goals the participation of firms that have already been certified as DBEs. Except as provided in paragraph (a)(2) of this section, you must not consider commercially useful function issues in any way in making decisions about whether to certify a firm as a DBE. (2) You may consider, in making certification decisions, whether a firm has exhibited a pattern of conduct indicating its involvement in attempts to evade or subvert the intent or requirements of the DBE program. (b) (1) You must evaluate the eligibility of a firm on the basis of present circumstances. You must not refuse to certify a firm based solely on historical information indicating a lack of ownership or control of the firm by socially and economically disadvantaged individuals at some time in the past, if the firm currently meets the ownership and control standards of this part. (2) You must not refuse to certify a firm solely on the basis that it is a newly formed firm, has not completed projects or contracts at the time of its application, has not yet realized profits from its activities, or has not demonstrated a potential for success. If the firm meets disadvantaged, size, ownership, and control requirements of this Part, the firm is eligible for certification. (c) DBE firms and firms seeking DBE certification shall cooperate fully with your requests (and DOT requests) for information relevant to the certification process. Failure or refusal to provide such information is a ground for a denial or removal of certification. (d) Only firms organized for profit may be eligible DBEs. Not-for-profit organizations, even though controlled by socially and economically disadvantaged individuals, are not eligible to be certified as DBEs. (e) An eligible DBE firm must be owned by individuals who are socially and economically disadvantaged. Except as provided in this paragraph, a firm that is not owned by such individuals, but instead is owned by another firm- even a DBE firm-cannot be an eligible DBE. (1) If socially and economically disadvantaged individuals own and control a firm through a parent or holding company, established for tax, capitalization or other purposes consistent with industry practice, and the parent or holding company in turn owns and controls an operating subsidiary, you may certify the subsidiary if it otherwise meets all requirements of this subpart. In this situation, the individual owners and controllers of the parent or holding company are deemed to control the subsidiary through the parent or holding company. Page 28 of 50 71 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (2) You may certify such a subsidiary only if there is cumulatively 51 percent ownership of the subsidiary by socially and economically disadvantaged individuals. The following examples illustrate how this cumulative ownership provision works: Example 1: Socially and economically disadvantaged individuals own 100 percent of a holding company, which has a wholly-owned subsidiary. The subsidiary may be certified, if it meets all other requirements. Example 2: Disadvantaged individuals own 100 percent of the holding company, which owns 51 percent of a subsidiary. The subsidiary may be certified, if all other requirements are met. Example 3: Disadvantaged individuals own 80 percent of the holding company, which in turn owns 70 percent of a subsidiary. In this case, the cumulative ownership of the subsidiary by disadvantaged individuals is 56 percent (80 percent of the 70 percent). This is more than 51 percent, so you may certify the subsidiary, if all other requirements are met. Example 4: Same as Example 2 or 3, but someone other than the socially and economically disadvantaged owners of the parent or holding company controls the subsidiary. Even though the subsidiary is owned by disadvantaged individuals, through the holding or parent company, you cannot certify it because it fails to meet control requirements. Example 5: Disadvantaged individuals own 60 percent of the holding company, which in turn owns 51 percent of a subsidiary. In this case, the cumulative ownership of the subsidiary by disadvantaged individuals is about 31 percent. This is less than 51 percent, so you cannot certify the subsidiary. Example 6: The holding company, in addition to the subsidiary seeking certification, owns several other companies. The combined gross receipts of the holding companies and its subsidiaries are greater than the size standard for the subsidiary seeking certification and/or the gross receipts cap of §26.65(b). Under the rules concerning affiliation, the subsidiary fails to meet the size standard and cannot be certified. (f) Recognition of a business as a separate entity for tax or corporate purposes is not necessarily sufficient to demonstrate that a firm is an independent business, owned and controlled by socially and economically disadvantaged individuals. (g) You must not require a DBE firm to be prequalified as a condition for certification unless the recipient requires all firms that participate in its contracts and subcontracts to be prequalified. (h) A firm that is owned by an Indian tribe or Native Hawaiian organization, rather than by Indians or Native Hawaiians as individuals, may be eligible for certification. Such a firm must meet the size standards of §26.35. Such a firm must be controlled by socially and economically disadvantaged individuals, as provided in §26.71. (i) The following special rules apply to the certification of firms related to Alaska Native Corporations (ANCs). (1) Notwithstanding any other provisions of this subpart, a direct or indirect subsidiary corporation, joint venture, or partnership entity of an ANC is eligible for certification as a DBE if it meets all of the following requirements: (i) The Settlement Common Stock of the underlying ANC and other stock of the ANC held by holders of the Settlement Common Stock and by Natives and descendents of Natives represents a majority of both the total equity of the ANC and the total voting power of the corporation for purposes of electing directors; (ii) The shares of stock or other units of common ownership interest in the subsidiary, joint venture, or partnership entity held by the ANC and by holders of its Settlement Common Stock represent a majority of both the total equity of the entity and the total voting power of the entity for the purpose of electing directors, the general partner, or principal officers; and (iii) The subsidiary, joint venture, or partnership entity has been certified by the Small Business Administration under the 8(a) or small disadvantaged business program. (2) As a recipient to whom an ANC-related entity applies for certification, you do not use the DOT uniform application form (see Appendix F of this part). You must obtain from the firm documentation sufficient to demonstrate that entity meets the requirements of paragraph (i)(1) of this section. You must also obtain sufficient information about the firm to allow you to administer your program (e.g., information that would appear in your DBE Directory). Page 29 of 50 72 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (3) If an ANC-related firm does not meet all the conditions of paragraph (i)(1) of this section, then it must meet the requirements of paragraph (h) of this section in order to be certified, on the same basis as firms owned by Indian Tribes or Native Hawaiian Organizations. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003; 76 FR 5099, Jan. 28, 2011) Subpart E-Certification Procedures § 26.81 What are the requirements for Unified Certification Programs? (a) You and all other DOT recipients in your state must participate in a Unified Certification Program (UCP). (1) Within three years of March 4, 1999, you and the other recipients in your state must sign an agreement establishing the UCP for that state and submit the agreement to the Secretary for approval. The Secretary may, on the basis of extenuating circumstances shown by the recipients in the state, extend this deadline for no more than one additional year. (2) The agreement must provide for the establishment of a UCP meeting all the requirements of this section. The agreement must specify that the UCP will follow all certification procedures and standards of this part, on the same basis as recipients; that the UCP shall cooperate fully with oversight, review, and monitoring activities of DOT and its operating administrations; and that the UCP shall implement DOT directives and guidance concerning certification matters. The agreement shall also commit recipients to ensuring that the UCP has sufficient resources and expertise to carry out the requirements of this part. The agreement shall include an implementation schedule ensuring that the UCP is fully operational no later than 18 months following the approval of the agreement by the Secretary. (3) Subject to approval by the Secretary, the UCP in each state may take any form acceptable to the recipients in that state. (4) The Secretary shall review the UCP and approve it, disapprove it, or remand it to the recipients in the state for revisions. A complete agreement which is not disapproved or remanded within 180 days of its receipt is deemed to be accepted. (5) If you and the other recipients in your state fail to meet the deadlines set forth in this paragraph (a), you shall have the opportunity to make an explanation to the Secretary why a deadline could not be met and why meeting the deadline was beyond your control. If you fail to make such an explanation, or the explanation does not justify the failure to meet the deadline, the Secretary shall direct you to complete the required action by a date certain. If you and the other recipients fail to carry out this direction in a timely manner, you are collectively in noncompliance with this part. (b) The UCP shall make all certification decisions on behalf of all DOT recipients in the state with respect to participation in the DOT DBE Program. (1) Certification decisions by the UCP shall be binding on all DOT recipients within the state. (2) The UCP shall provide "one-stop shopping" to applicants for certification, such that an applicant is required to apply only once for a DBE certification that will be honored by all recipients in the state. (3) All obligations of recipients with respect to certification and nondiscrimination must be carried out by UCPs, and recipients may use only UCPs that comply with the certification and nondiscrimination requirements of this part. (c) All certifications by UCPs shall be pre-certifications; i.e., certifications that have been made final before the due date for bids or offers on a contract on which a firm seeks to participate as a DBE. (d) A UCP is not required to process an application for certification from a firm having its principal place of business outside the state if the firm is not certified by the UCP in the state in which it maintains its principal place of business. The "home state" UCP shall share its information and documents concerning the firm with other UCPs that are considering the firm's application. (e) Subject to DOT approval as provided in this section, the recipients in two or more states may form a regional UCP. UCPs may also enter into written reciprocity agreements with other UCPs. Such an agreement shall outline the specific responsibilities of each participant. A UCP may accept the certification of any other UCP or DOT recipient. Page 30 of 50 73 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (f) Pending the establishment of UCPs meeting the requirements of this section, you may enter into agreements with other recipients, on a regional or inter-jurisdictional basis, to perfonm certification functions required by this part. You may also grant reciprocity to other recipient's certification decisions. (g) Each UCP shall maintain a unified DBE directory containing, for all firms certified by the UCP (including those from other states certified under the provisions of this part), the information required by §26.31. The UCP shall make the directory available to the public electronically, on the internet, as well as in print. The UCP shall update the electronic version of the directory by including additions, deletions, and other changes as soon as they are made and shall revise the print version of the Directory at least once a year. (h) Except as otherwise specified in this section, all provisions of this subpart and subpart D of this part pertaining to recipients also apply to UCPs. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5100, Jan. 28, 2011] § 26.83 What procedures do recipients follow in making certification decisions? (a) You must ensure that only firms certified as eligible DBEs under this section participate as DBEs in your program. (b) You must determine the eligibility of firms as DBEs consistent with the standards of subpart D of this part. When a UCP is formed, the UCP must meet all the requirements of subpart D of this part and this subpart that recipients are required to meet. (c) You must take all the following steps in detenmining whether a DBE firm meets the standards of subpart D of this part: (1) Perfonm an on-site visit to the offices of the firm. You must interview the principal officers of the firm and review their resumes and/or work histories. You must also perform an on-site visit to job sites if there are such sites on which the finm is working at the time of the eligibility investigation in your jurisdiction or local area. You may rely upon the site visit report of any other recipient with respect to a firm applying for certification; (2) If the firm is a corporation, analyze the ownership of stock in the firm; (3) Analyze the bonding and financial capacity of the finm; (4) Determine the work history of the finm, including contracts it has received and work it has completed; (5) Obtain a statement from the firm of the type of work it prefers to perform as part of the DBE program and its preferred locations for performing the work, if any; (6) Obtain or compile a list of the equipment owned by or available to the firm and the licenses the firm and its key personnel possess to perform the work it seeks to do as part of the DBE program; (7) Require potential DBEs to complete and submit an appropriate application fonm, unless the potential DBE is an SBA certified firm applying pursuant to the DOT/SBA MOU. (i) You must use the application form provided in Appendix F to this part without change or revision. However, you may provide in your DBE program, with the approval of the concerned operating administration, for supplementing the form by requesting additional information not inconsistent with this part. (ii) You must make sure that the applicant attests to the accuracy and truthfulness of the information on the application form. This shall be done either in the form of an affidavit sworn to by the applicant before a person who is authorized by state law to administer oaths or in the form of an unsworn declaration executed under penalty of perjury of the laws of the United States. (iii) You must review all information on the fonm prior to making a decision about the eligibility of the firm. (d) When another recipient, in connection with its consideration of the eligibility of a firm, makes a written request for certification infonmation you have obtained about that firm (e.g., including application materials or the report of a site visit, if you have made one to the finm), you must promptly make the information available to the other recipient. (e) [Reserved] (f) Subject to the approval of the concerned operating administration as part of your DBE program, you may impose a reasonable application fee for certification. Fee waivers shall be made in appropriate cases. Page 31 of 50 74 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (g) You must safeguard from disclosure to unauthorized persons information gathered as part of the certification process that may reasonably be regarded as proprietary or other confidential business information, consistent with applicable Federal, state, and local law. (h) Once you have certified a DBE, it shall remain certified until and unless you have removed its certification, in whole or in part, through the procedures of section 26.87. You may not require DBEs to reapply for certification or require "recertification" of currently certified firms. However, you may conduct a certification review of a certified DBE firm, including a new on-site review, three years from the date of the firm's most recent certification, or sooner if appropriate in light of changed circumstances (e.g., of the kind requiring notice under paragraph (i) of this section), a complaint, or other information concerning the firm's eligibility. If you have grounds to question the firm's eligibility, you may conduct an on-site review on an unannounced basis, at the firm's offices and jobsites. (i) If you are a DBE, you must inform the recipient or UCP in writing of any change in circumstances affecting your ability to meet size, disadvantaged status, ownership, or control requirements of this part or any material change in the information provided in your application form. (1) Changes in management responsibility among members of a limited liability company are covered by this requirement. (2) You must attach supporting documentation describing in detail the nature of such changes. (3) The notice must take the form of an affidavit sworn to by the applicant before a person who is authorized by state law to administer oaths or of an unsworn declaration executed under penalty of perjury of the laws of the United States. You must provide the written notification within 30 days of the occurrence of the change. If you fail to make timely notification of such a change, you will be deemed to have failed to cooperate under §26.109(c). (j) If you are a DBE, you must provide to the recipient, every year on the anniversary of the date of your certification, an affidavit sworn to by the firm's owners before a person who is authorized by state law to administer oaths or an unsworn declaration executed under penalty of perjury of the laws of the United States. This affidavit must affirm that there have been no changes in the firm's circumstances affecting its ability to meet size, disadvantaged status, ownership, or control requirements of this part or any material changes in the information provided in its application form, except for changes about which you have notified the recipient under paragraph (i) of this section. The affidavit shall specifically affirm that your firm continues to meet SBA business size criteria and the overall gross receipts cap of this part, documenting this affirmation with supporting documentation of your firm's size and gross receipts. If you fail to provide this affidavit in a timely manner, you will be deemed to have failed to cooperate under §26.109(c). (k) If you are a recipient, you must make decisions on applications for certification within 90 days of receiving from the applicant firm all information required under this part. You may extend this time period once, for no more than an additional 60 days, upon written notice to the firm, explaining fully and specifically the reasons for the extension. You may establish a different time frame in your DBE program, upon a showing that this time frame is not feasible, and subject to the approval of the concerned operating administration. Your failure to make a decision by the applicable deadline under this paragraph is deemed a constructive denial of the application, on the basis of which the firm may appeal to DOT under §26.89. (I) As a recipient or UCP, you must advise each applicant within 30 days from your receipt of the application whether the application is complete and suitable for evaluation and, if not, what additional information or action is required. (m) Except as otherwise provided in this paragraph, if an applicant for DBE certification withdraws its application before you have issued a decision on the application, the applicant can resubmit the application at any time. As a recipient or UCP, you may not apply the waiting period provided under §26.86(c) of this part before allowing the applicant to resubmit its application. However, you may place the reapplication at the "end of the line," behind other applications that have been made since the firm's previous application was withdrawn. You may also apply the waiting period provided under §26.86(c) of this part to a firm that has established a pattern of frequently withdrawing applications before you make a decision. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003; 76 FR 5100, Jan. 28, 2011) § 26.85 Interstate certification. (a) This section applies with respect to any firm that is currently certified in its home state. Page 32 of 50 75 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (b) When a firm currently certified in its home state ("State A") applies to another State ("State B") for DBE certification, State B may, at its discretion, accept State A's certification and certify the firm, without further procedures. (1) To obtain certification in this manner, the firm must provide to State B a copy of its certification notice from State A. (2) Before certifying the firm, State B must confirm that the firm has a current valid certification from State A. State B can do so by reviewing State A's electronic directory or obtaining written confirmation from State A. (c) In any situation in which State B chooses not to accept State A's certification of a firm as provided in paragraph (b) of this section, as the applicant firm you must provide the information in paragraphs (c)(1) through (4) of this section to State B. (1) You must provide to State B a complete copy of the application form, all supporting documents, and any other information you have submitted to State A or any other state related to your firm's certification. This includes affidavits of no change (see §26.830)) and any notices of changes (see §26.83(i)) that you have submitted to State A, as well as any correspondence you have had with State A's UCP or any other recipient concerning your application or status as a DBE firm. (2) You must also provide to State B any notices or correspondence from states other than State A relating to your status as an applicant or certified DBE in those states. For example, if you have been denied certification or decertified in State C, or subject to a decertification action there, you must inform State B of this fact and provide all documentation concerning this action to State B. (3) If you have filed a certification appeal with DOT (see §26.89), you must inform State B of the fact and provide your letter of appeal and DOT's response to State B. (4) You must submit an affidavit sworn to by the firm's owners before a person who is authorized by State law to administer oaths or an unsworn declaration executed under penalty of perjury of the laws of the United States. (i) This affidavit must affirm that you have submitted all the information required by 49 CFR 26.85(c) and the information is complete and, in the case of the information required by §26.85(c)(1), is an identical copy of the information submitted to State A. (ii) If the on-site report from State A supporting your certification in State A is more than three years old, as of the date of your application to State B, State B may require that your affidavit also affirm that the facts in the on-site report remain true and correct. (d) As State B, when you receive from an applicant firm all the information required by paragraph (c) of this section, you must take the following actions: (1) Within seven days contact State A and request a copy of the site visit review report for the firm (see §26.83(c)(1 )), any updates to the site visit review, and any evaluation of the firm based on the site visit. As State A, you must transmit this information to State B within seven days of receiving the request. A pattern by State B of not making such requests in a timely manner or by "State A" or any other State of not complying with such requests in a timely manner is noncompliance with this Part. (2) Determine whether there is good cause to believe that State A's certification of the firm is erroneous or should not apply in your State. Reasons for making such a determination may include the following: (i) Evidence that State A's certification was obtained by fraud; (ii) New information, not available to State A at the time of its certification, showing that the firm does not meet all eligibility criteria; (iii) State A's certification was factually erroneous or was inconsistent with the requirements of this part; (iv) The State law of State B requires a result different from that of the State law of State A. (v) The information provided by the applicant firm did not meet the requirements of paragraph (c) of this section. (3) If, as State B, unless you have determined that there is good cause to believe that State A's certification is erroneous or should not apply in your State, you must, no later than 60 days from the date on which you received from the applicant firm all the information required by paragraph (c) of this section, send to the applicant firm a notice that it is certified and place the firm on your directory of certified firms. Page 33 of 50 76 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (4) If, as State B, you have determined that there is good cause to believe that State A's certification is erroneous or should not apply in your State, you must, no later than 60 days from the date on which you received from the applicant firm all the information required by paragraph (c) of this section, send to the applicant firm a notice stating the reasons for your determination. (i) This notice must state with particularity the specific reasons why State B believes that the firm does not meet the requirements of this Part for DBE eligibility and must offer the firm an opportunity to respond to State B with respect to these reasons. (ii) The firm may elect to respond in writing, to request an in-person meeting with State B's decision maker to discuss State B's objections to the firm's eligibility, or both. If the firm requests a meeting, as State B you must schedule the meeting to take place within 30 days of receiving the firm's request. (iii) The firm bears the burden of demonstrating, by a preponderance of evidence, that it meets the requirements of this Part with respect to the particularized issues raised by State B's notice. The firm is not otherwise responsible for further demonstrating its eligibility to State B. (iv) The decision maker for State B must be an individual who is thoroughly familiar with the provisions of this Part concerning certification. (v) State B must issue a written decision within 30 days of the receipt of the written response from the firm or the meeting with the decision maker, whichever is later. (vi) The firm's application for certification is stayed pending the outcome of this process. (vii) A decision under this paragraph (d)(4) may be appealed to the Departmental Office of Civil Rights under s§26.89 of this part. (e) As State B, if you have not received from State A a copy of the site visit review report by a date 14 days after you have made a timely request for it, you may hold action required by paragraphs (d)(2) through (4) of this section in abeyance pending receipt of the site visit review report. In this event, you must, no later than 30 days from the date on which you received from an applicant firm all the information required by paragraph (c) of this section, notify the firm in writing of the delay in the process and the reason for it. (f) (1) As a UCP, when you deny a firm's application, reject the application of a firm certified in State A or any other State in which the firm is certified, through the procedures of paragraph (d)(4) of this section, or decertify a firm, in whole or in part, you must make an entry in the Department of Transportation Office of Civil Rights' (DOCR's) Ineligibility Determination Online Database. You must enter the following information: (i) The name of the firm; (ii) The name(s) of the firm's owner(s); (iii) The type and date of the action; (iv) The reason for the action. (2) As a UCP, you must check the DOCR Web site at least once every month to determine whether any firm that is applying to you for certification or that you have already certified is on the list. (3) For any such firm that is on the list, you must promptly request a copy of the listed decision from the UCP that made it. As the UCP receiving such a request, you must provide a copy of the decision to the requesting UCP within 7 days of receiving the request. As the UCP receiving the decision, you must then consider the information in the decision in determining what, if any, action to take with respect to the certified DBE firm or applicant. (g) You must implement the requirements of this section beginning January 1, 2012. [76 FR 5100, Jan. 28, 2011) § 26.86 What rules govern recipients' denials of initial requests for certification? (a) When you deny a request by a firm, which is not currently certified with you, to be certified as a DBE, you must provide the firm a written explanation of the reasons for the denial, specifically referencing the evidence in the record that supports each reason for the denial. All documents and other information on which the denial is based must be made available to the applicant, on request. (b) When you deny DBE certification to a firm certified by the SBA, you must notify the SBA in writing. The notification must include the reason for denial. Page 34 of 50 77 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (c) When a firm is denied certification, you must establish a time period of no more than twelve months that must elapse before the firm may reapply to the recipient for certification. You may provide, in your DBE program, subject to approval by the concerned operating administration, a shorter waiting period for reapplication. The time period for reapplication begins to run on the date the explanation required by paragraph (a) of this section is received by the firm. (d) When you make an administratively final denial of certification concerning a firm, the firm may appeal the denial to the Department under §26.89. [64 FR 5126, Feb. 2, 1999. Redesignated and amended at 68 FR 35555, June 16, 2003] § 26.87 What procedures does a recipient use to remove a DBE's eligibility? (a) Ineligibility complaints. (1) Any person may file with you a written complaint alleging that a currently-certified firm is ineligible and specifying the alleged reasons why the firm is ineligible. You are not required to accept a general allegation that a firm is ineligible or an anonymous complaint. The complaint may include any information or arguments supporting the complainant's assertion that the firm is ineligible and should not continue to be certified. Confidentiality of complainants' identities must be protected as provided in §26.1 09(b ). (2) You must review your records concerning the firm, any material provided by the firm and the complainant, and other available information. You may request additional information from the firm or conduct any other investigation that you deem necessary. (3) If you determine, based on this review, that there is reasonable cause to believe that the firm is ineligible, you must provide written notice to the firm that you propose to find the firm ineligible, setting forth the reasons for the proposed determination. If you determine that such reasonable cause does not exist, you must notify the complainant and the firm in writing of this determination and the reasons for it. All statements of reasons for findings on the issue of reasonable cause must specifically reference the evidence in the record on which each reason is based. (b) Recipient-initiated proceedings. If, based on notification by the firm of a change in its circumstances or other information that comes to your attention, you determine that there is reasonable cause to believe that a currently certified firm is ineligible, you must provide written notice to the firm that you propose to find the firm ineligible, setting forth the reasons for the proposed determination. The statement of reasons for the finding of reasonable cause must specifically reference the evidence in the record on which each reason is based. (c) DOT directive to initiate proceeding. (1) If the concerned operating administration determines that information in your certification records, or other information available to the concerned operating administration, provides reasonable cause to believe that a firm you certified does not meet the eligibility criteria of this part, the concerned operating administration may direct you to initiate a proceeding to remove the firm's certification. (2) The concerned operating administration must provide you and the firm a notice setting forth the reasons for the directive, including any relevant documentation or other information. (3) You must immediately commence and prosecute a proceeding to remove eligibility as provided by paragraph (b) of this section. (d) Hearing. When you notify a firm that there is reasonable cause to remove its eligibility, as provided in paragraph (a), (b), or (c) of this section, you must give the firm an opportunity for an informal hearing, at which the firm may respond to the reasons for the proposal to remove its eligibility in person and provide information and arguments concerning why it should remain certified. (1) In such a proceeding, you bear the burden of proving, by a preponderance of the evidence, that the firm does not meet the certification standards of this part. (2) You must maintain a complete record of the hearing, by any means acceptable under state law for the retention of a verbatim record of an administrative hearing. If there is an appeal to DOT under §26.89, you must provide a transcript of the hearing to DOT and, on request. to the firm. You must retain the original record of the hearing. You may charge the firm only for the cost of copying the record. (3) The firm may elect to present information and arguments in writing, without going to a hearing. In such a situation, you bear the same burden of proving, by a preponderance of the evidence, that the firm does not meet the certification standards, as you would during a hearing. (e) Separation of functions. You must ensure that the decision in a proceeding to remove a firm's eligibility is made by an office and personnel that did not take part in actions leading to or seeking to implement the proposal to Page 35 of 50 78 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs remove the firm's eligibility and are not subject, with respect to the matter, to direction from the office or personnel who did take part in these actions. (1) Your method of implementing this requirement must be made part of your DBE program. (2) The decision maker must be an individual who is knowledgeable about the certification requirements of your DBE program and this part. (3) Before a UCP is operational in its state, a small airport or small transit authority (i.e., an airport or transit authority serving an area with less than 250,000 population) is required to meet this requirement only to the extent feasible. (f) Grounds for decision. You must not base a decision to remove eligibility on a reinterpretation or changed opinion of information available to the recipient at the time of its certification of the firm. You may base such a decision only on one or more of the following: (1) Changes in the firm's circumstances since the certification of the firm by the recipient that render the firm unable to meet the eligibility standards of this part; (2) Information or evidence not available to you at the time the firm was certified; (3) Information that was concealed or misrepresented by the firm in previous certification actions by a recipient; (4) A change in the certification standards or requirements of the Department since you certified the firm; or (5) A documented finding that your determination to certify the firm was factually erroneous. (g) Notice of decision. Following your decision, you must provide the firm written notice of the decision and the reasons for it, including specific references to the evidence in the record that supports each reason for the decision. The notice must inform the firm of the consequences of your decision and of the availability of an appeal to the Department of Transportation under §26.89. You must send copies of the notice to the complainant in an ineligibility complaint or the concerned operating administration that had directed you to initiate the proceeding. (h) [Reserved] (i) Status affirm during proceeding. (1) A firm remains an eligible DBE during the pendency of your proceeding to remove its eligibility. (2) The firm does not become ineligible until the issuance of the notice provided for in paragraph (g) of this section. U) Effects of removal of eligibility. When you remove a firm's eligibility, you must take the following action: (1) When a prime contractor has made a commitment to using the ineligible firm, or you have made a commitment to using a DBE prime contractor, but a subcontract or contract has not been executed before you issue the decertification notice provided for in paragraph (g) of this section, the ineligible firm does not count toward the contract goal or overall goal. You must direct the prime contractor to meet the contract goal with an eligible DBE firm or demonstrate to you that it has made a good faith effort to do so. (2) If a prime contractor has executed a subcontract with the firm before you have notified the firm of its ineligibility, the prime contractor may continue to use the firm on the contract and may continue to receive credit toward its DBE goal for the firm's work. In this case, or in a case where you have let a prime contract to the DBE that was later ruled ineligible, the portion of the ineligible firm's performance of the contract remaining after you issued the notice of its ineligibility shall not count toward your overall goal, but may count toward the contract goal. (3) Exception: If the DBE's ineligibility is caused solely by its having exceeded the size standard during the performance of the contract, you may continue to count its participation on that contract toward overall and contract goals. (k) Availability of appeal. When you make an administratively final removal of a firm's eligibility under this section, the firm may appeal the removal to the Department under §26.89. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003; 76 FR 5101, Jan. 28, 2011) Page 36 of 50 79 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.89 What is the process for certification appeals to the Department of Transportation? (a) (1) If you are a firm that is denied certification or whose eligibility is removed by a recipient, including SBA- certified firms applying pursuant to the DOT/SBA MOU, you may make an administrative appeal to the Department. (2) If you are a complainant in an ineligibility complaint to a recipient (including the concerned operating administration in the circumstances provided in §26.87(c)). you may appeal to the Department if the recipient does not find reasonable cause to propose removing the firm's eligibility or, following a removal of eligibility proceeding, determines that the firm is eligible. (3) Send appeals to the following address: Department ofTransportation, Office of Civil Rights, 1200 New Jersey Avenue, SE., Washington, DC 20590. (b) Pending the Department's decision in the matter, the recipient's decision remains in effect. The Department does not stay the effect of the recipient's decision while it is considering an appeal. (c) If you want to file an appeal, you must send a letter to the Department within 90 days of the date of the recipient's final decision, including information and arguments concerning why the recipient's decision should be reversed. The Department may accept an appeal filed later than 90 days after the date of the decision if the Department determines that there was good cause for the late filing of the appeal. (1) If you are an appellant who is a firm which has been denied certification, whose certification has been removed, whose owner is determined not to be a member of a designated disadvantaged group, or concerning whose owner the presumption of disadvantage has been rebutted, your letter must state the name and address of any other recipient which currently certifies the firm, which has rejected an application for certification from the firm or removed the firm's eligibility within one year prior to the date of the appeal, or before which an application for certification or a removal of eligibility is pending. Failure to provide this information may be deemed a failure to cooperate under §26.109(c). (2) If you are an appellant other than one described in paragraph (c)(1) of this section, the Department will request, and the firm whose certification has been questioned shall promptly provide, the information called for in paragraph (c)(1) of this section. Failure to provide this information may be deemed a failure to cooperate under §26.1 09( c). (d) When it receives an appeal, the Department requests a copy of the recipient's complete administrative record in the matter. If you are the recipient, you must provide the administrative record, including a hearing transcript, within 20 days of the Department's request. The Department may extend this time period on the basis of a recipient's showing of good cause. To facilitate the Department's review of a recipient's decision, you must ensure that such administrative records are well organized, indexed, and paginated. Records that do not comport with these requirements are not acceptable and will be returned to you to be corrected immediately. If an appeal is brought concerning one recipient's certification decision concerning a firm, and that recipient relied on the decision and/or administrative record of another recipient, this requirement applies to both recipients involved. (e) The Department makes its decision based solely on the entire administrative record. The Department does not make a de novo review of the matter and does not conduct a hearing. The Department may supplement the administrative record by adding relevant information made available by the DOT Office of Inspector General; Federal, state, or local law enforcement authorities; officials of a DOT operating administration or other appropriate DOT office; a recipient; or a firm or other private party. (f) As a recipient, when you provide supplementary information to the Department, you shall also make this information available to the ftrm and any third-party complainant involved, consistent with Federal or applicable state laws concerning freedom of information and privacy. The Department makes available, on request by the firm and any third-party complainant involved, any supplementary information it receives from any source. (1) The Department affirms your decision unless it determines, based on the entire administrative record, that your decision is unsupported by substantial evidence or inconsistent with the substantive or procedural provisions of this part concerning certification. (2) If the Department determines, after reviewing the entire administrative record, that your decision was unsupported by substantial evidence or inconsistent with the substantive or procedural provisions of this part concerning certification, the Department reverses your decision and directs you to certify the firm or remove its eligibility, as appropriate You must take the action directed by the Department's decision immediately upon receiving written notice of it. (3) The Department is not required to reverse your decision if the Department determines that a procedural error did not result in fundamental unfairness to the appellant or substantially prejudice the opportunity of the appellant to present its case. Page 37 of 50 80 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (4) If it appears that the record is incomplete or unclear with respect to matters likely to have a significant impact on the outcome of the case, the Department may remand the record to you with instructions seeking clarification or augmentation of the record before making a finding. The Department may also remand a case to you for further proceedings consistent with Department instructions concerning the proper application of the provisions of this part. (5) The Department does not uphold your decision based on grounds not specified in your decision. (6) The Department's decision is based on the status and circumstances of the firm as of the date of the decision being appealed. (7) The Department provides written notice of its decision to you, the firm, and the complainant in an ineligibility complaint. A copy of the notice is also sent to any other recipient whose administrative record or decision has been involved in the proceeding (see paragraph (d) of this section). The Department will also notify the SBA in writing when DOT takes an action on an appeal that results in or confirms a loss of eligibility to any SBA-certified firm. The notice includes the reasons for the Department's decision, including specific references to the evidence in the record that supports each reason for the decision. (8) The Department's policy is to make its decision within 180 days of receiving the complete administrative record. If the Department does not make its decision within this period, the Department provides written notice to concerned parties, including a statement of the reason for the delay and a date by which the appeal decision will be made. (g) All decisions under this section are administratively final, and are not subject to petitions for reconsideration. [64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 FR 35556, June 16, 2003; 73 FR 33329, June 12, 2008) § 26.91 What actions do recipients take following DOT certification appeal decisions? (a) If you are the recipient from whose action an appeal under §26.89 is taken, the decision is binding. It is not binding on other recipients. (b) If you are a recipient to which a DOT determination under §26.89 is applicable, you must take the following action: (1) If the Department determines that you erroneously certified a firm, you must remove the firm's eligibility on receipt of the determination, without further proceedings on your part. Effective on the date of your receipt of the Department's determination, the consequences of a removal of eligibility set forth in §26.87(i) take effect. (2) If the Department determines that you erroneously failed to find reasonable cause to remove the firm's eligibility, you must expeditiously commence a proceeding to determine whether the firm's eligibility should be removed, as provided in §26.87. (3) If the Department determines that you erroneously declined to certify or removed the eligibility of the firm, you must certify the firm, effective on the date of your receipt of the written notice of Department's determination. ( 4) If the Department determines that you erroneously determined that the presumption of social and economic disadvantage either should or should not be deemed rebutted, you must take appropriate corrective action as determined by the Department. (5) If the Department affirms your determination, no further action is necessary. (c) Where DOT has upheld your denial of certification to or removal of eligibility from a firm, or directed the removal of a firm's eligibility, other recipients with whom the firm is certified may commence a proceeding to remove the firm's eligibility under §26.87. Such recipients must not remove the firm's eligibility absent such a proceeding. Where DOT has reversed your denial of certification to or removal of eligibility from a firm, other recipients must take the DOT action into account in any certification action involving the firm. However, other recipients are not required to certify the firm based on the DOT decision. Page 38 of 50 81 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Subpart F-Compliance and Enforcement § 26.101 What compliance procedures apply to recipients? (a) If you fail to comply with any requirement of this part, you may be subject to formal enforcement action under §26.1 03 or §26. 105 or appropriate program sanctions by the concerned operating administration, such as the suspension or termination of Federal funds, or refusal to approve projects, grants or contracts until deficiencies are remedied. Program sanctions may include, in the case of the FHWA program, actions provided for under 23 CFR 1.36; in the case of the FAA program, actions consistent with 49 U.S.C. 471 06(d), 47111 (d), and 47122; and in the case of the FTA program, any actions permitted under 49 U.S.C. chapter 53 or applicable FTA program requirements. (b) As provided in statute, you will not be subject to compliance actions or sanctions for failing to carry out any requirement of this part because you have been prevented from complying because a Federal court has issued a final order in which the court found that the requirement is unconstitutional. § 26.103 What enforcement actions apply in FHWA and FTA programs? The provisions of this section apply to enforcement actions under FHWA and FTA programs: (a) Noncompliance complaints. Any person who believes that a recipient has failed to comply with its obligations under this part may file a written complaint with the concerned operating administration's Office of Civil Rights. If you want to file a complaint, you must do so no later than 180 days after the date of the alleged violation or the date on which you learned of a continuing course of conduct in violation of this part. In response to your written request, the Office of Civil Rights may extend the time for filing in the interest of justice, specifying in writing the reason for so doing. The Office of Civil Rights may protect the confidentiality of your identity as provided in §26.1 09(b ). Complaints under this part are limited to allegations of violation of the provisions of this part. (b) Compliance reviews. The concerned operating administration may review the recipient's compliance with this part at any time, including reviews of paperwork and on-site reviews, as appropriate. The Office of Civil Rights may direct the operating administration to initiate a compliance review based on complaints received. (c) Reasonable cause notice. If it appears, from the investigation of a complaint or the results of a compliance review, that you, as a recipient, are in noncompliance with this part, the appropriate DOT office promptly sends you, return receipt requested, a written notice advising you that there is reasonable cause to find you in noncompliance. The notice states the reasons for this finding and directs you to reply within 30 days concerning whether you wish to begin conciliation. (d) Conciliation. (1) If you request conciliation, the appropriate DOT office shall pursue conciliation for at least 30, but not more than 120, days from the date of your request. The appropriate DOT office may extend the conciliation period for up to 30 days for good cause, consistent with applicable statutes. (2) If you and the appropriate DOT office sign a conciliation agreement, then the matter is regarded as closed and you are regarded as being in compliance. The conciliation agreement sets forth the measures you have taken or will take to ensure compliance. While a conciliation agreement is in effect, you remain eligible for FHWA or FTA financial assistance. (3) The concerned operating administration shall monitor your implementation of the conciliation agreement and ensure that its terms are complied with. If you fail to carry out the terms of a conciliation agreement, you are in noncompliance. (4) If you do not request conciliation, or a conciliation agreement is not signed within the time provided in paragraph (d)(1) of this section, then enforcement proceedings begin. (e) Enforcement actions. (1) Enforcement actions are taken as provided in this subpart. (2) Applicable findings in enforcement proceedings are binding on all DOT offices. § 26.105 What enforcement actions apply in FAA programs? (a) Compliance with all requirements of this part by airport sponsors and other recipients of FAA financial assistance is enforced through the procedures ofTitle 49 of the United States Code, including 49 U.S. C. 47106(d), 47111 (d), and 47122, and regulations implementing them. (b) The provisions of §26.1 03(b) and this section apply to enforcement actions in FAA programs. (c) Any person who knows of a violation of this part by a recipient of FAA funds may file a complaint under 14 CFR part 16 with the Federal Aviation Administration Office of Chief Counsel. Page 39 of 50 82 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.107 What enforcement actions apply to firms participating in the DBE program? (a) If you are a firm that does not meet the eligibility criteria of subpart D of this part and that attempts to participate in a DOT-assisted program as a DBE on the basis of false, fraudulent, or deceitful statements or representations or under circumstances indicating a serious lack of business integrity or honesty, the Department may initiate suspension or debarment proceedings against you under 2 CFR parts 180 and 1200. (b) If you are a firm that, in order to meet DBE contract goals or other DBE program requirements, uses or attempts to use, on the basis of false, fraudulent or deceitful statements or representations or under circumstances indicating a serious lack of business integrity or honesty, another firm that does not meet the eligibility criteria of subpart D of this part, the Department may initiate suspension or debarment proceedings against you under 2 CFR parts 180 and 1200. (c) In a suspension or debarment proceeding brought under paragraph (a} or (b) of this section, the concerned operating administration may consider the fact that a purported DBE has been certified by a recipient. Such certification does not preclude the Department from determining that the purported DBE, or another firm that has used or attempted to use it to meet DBE goals, should be suspended or debarred. (d) The Department may take enforcement action under 49 CFR Part 31, Program Fraud and Civil Remedies, against any participant in the DBE program whose conduct is subject to such action under 49 CFR part 31. (e) The Department may refer to the Department of Justice, for prosecution under 18 U.S.C. 1001 or other applicable provisions of law, any person who makes a false or fraudulent statement in connection with participation of a DBE in any DOT-assisted program or otherwise violates applicable Federal statutes. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5101, Jan. 28, 2011) § 26.109 What are the rules governing information, confidentiality, cooperation, and intimidation or retaliation? (a) Availability of records. (1) In responding to requests for information concerning any aspect of the DBE program, the Department complies with provisions of the Federal Freedom of Information and Privacy Acts (5 U.S.C. 552 and 552a). The Department may make available to the public any information concerning the DBE program release of which is not prohibited by Federal law. (2) Notwithstanding any provision of Federal or state law, you must not release any information that may reasonably be construed as confidential business information to any third party without the written consent of the firm that submitted the information. This includes applications for DBE certification and supporting information. However, you must transmit this information to DOT in any certification appeal proceeding under §26.89 of this part or to any other state to which the individual's firm has applied for certification under §26.85 of this part. (b) Confidentiality of information on complainants. Notwithstanding the provisions of paragraph (a) of this section, the identity of complainants shall be kept confidential, at their election. If such confidentiality will hinder the investigation, proceeding or hearing, or result in a denial of appropriate administrative due process to other parties, the complainant must be advised for the purpose of waiving the privilege. Complainants are advised that, in some circumstances, failure to waive the privilege may result in the closure of the investigation or dismissal of the proceeding or hearing. FAA follows the procedures of 14 CFR part 16 with respect to confidentiality of information in complaints. (c) Cooperation. All participants in the Department's DBE program (including, but not limited to, recipients, DBE firms and applicants for DBE certification, complainants and appellants, and contractors using DBE firms to meet contract goals) are required to cooperate fully and promptly with DOT and recipient compliance reviews, certification reviews, investigations, and other requests for information. Failure to do so shall be a ground for appropriate action against the party involved (e.g., with respect to recipients, a finding of noncompliance; with respect to DBE firms, denial of certification or removal of eligibility and/or suspension and debarment; with respect to a complainant or appellant, dismissal of the complaint or appeal; with respect to a contractor which uses DBE firms to meet goals, findings of non-responsibility for future contracts and/or suspension and debarment). (d) Intimidation and retaliation. if you are a recipient, contractor, or any other participant in the program, you must not intimidate, threaten, coerce, or discriminate against any individual or firm for the purpose of interfering with any right or privilege secured by this part or because the individual or firm has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. If you violate this prohibition, you are in noncompliance with this part. Page 40 of 50 83 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003; 76 FR 5101, Jan. 28, 2011] Appendix A to Part 26-Guidance Concerning Good Faith Efforts I. When, as a recipient, you establish a contract goal on a DOT-assisted contract, a bidder must, in order to be responsible and/or responsive, make good faith efforts to meet the goal. The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting commitments for participation by DBE firms sufficient for this purpose. Second, even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This means that the bidder must show that it took all necessary and reasonable steps to achieve a DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful. II. In any situation in which you have established a contract goal, part 26 requires you to use the good faith efforts mechanism of this part. As a recipient, it is up to you to make a fair and reasonable judgment whether a bidder that did not meet the goal made adequate good faith efforts. It is important for you to consider the quality, quantity, and intensity of the different kinds of efforts that the bidder has made. The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements. We emphasize, however, that your determination concerning the sufficiency of the firm's good faith efforts is a judgment call: meeting quantitative formulas is not required. Ill. The Department also strongly cautions you against requiring that a bidder meet a contract goal (i.e. , obtain a specified amount of DBE participation) in order to be awarded a contract, even though the bidder makes an adequate good faith efforts showing. This rule specifically prohibits you from ignoring bona fide good faith efforts. IV. The following is a list of types of actions which you should consider as part of the bidder's good faith efforts to obtain DBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases. A. Soliciting through all reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified DBEs who have the capability to perform the work of the contract. The bidder must solicit this interest within sufficient time to allow the DBEs to respond to the solicitation. The bidder must determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations. B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces. C. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation. D. (1) Negotiating in good faith with interested DBEs. It is the bidder's responsibility to make a portion of the work available to DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for DBEs to perform the work. (2) A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable. E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the contractor's efforts to meet the project goal. Page 41 of 50 84 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor. G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. H. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs. V. In determining whether a bidder has made good faith efforts, you may take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise the question of whether, with additional reasonable efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but meets or exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts. Page 42 of 50 85 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Appendix 8 to Part 26-Uniform Report of DBE Awards or Commitments and Payments Form [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003] Page 43 of 50 86 00 '-I 2. AlP Numbers (FAA Recipients Only): Hispanic American (dollars) Native American tnumber) Subcont. Asian American (dollars} Asian· Pacific American , Signature-ol A~.<!hcrl;z.ed Conscious {number) Non· Minority Women Other {I.e., not o1 any other group listed here) Neutral lnumtw) reporting period only) dollars to DBEs Year-End TOTALS Participation INSfiHTTIOI"S FOR CO;VIPLETING THE UNIFORM REPORT OJ<' OBE AWARDS OR Clf\1\11 1'\·lENTS ANO PAYMENTS l, Indicate the DOT Oper:>ting Administwtion (Oo<\) that prnvide:' vour F.:.:dC'n:l tlnancia.l asst_stance, If asststancc com-e'$ tfom rnorc i.han on~..· OA~ usc s~paratc reporting forms f~.._tr c:~~L~h OA. lf y~)u are an FTA recipient inJ.i..:atc j'our Vendor Nurnbcr in the SJXl(~t; pr"-widecL :;_ If you arc a11 FAA recipient, mdicate the relevant AlP Numbet,; covered by this rcporL If more than six, attach a separate sheet 3, Spcctfy the f<.,dcra! fiscal year (i.e .. October l which the covered reporting period falls. September 30) in 5, Check the appropriate box that indicates the reporting pcri,)d that the dma provided in this report covers. ff this report is du.: June L dat;1 should cover O~tobcr 1 March 3 l. lf this report is due December L data should cover April l " September 30 If this report is dnc to the FAA, data should cover the entire year. 6. Name of the recipient. 7, State your annual DBE goa!(s) established for the Federal f1scnl year of this report to be submitted to and approved by the relevant OA. Your Ovemll Goal is to be reported as well as the breakdown for specitic Race Conscious and Race Neutral Goals (both of which indul.le gender-conscious/neutral goals). The Race Conscious Goal portion should be based on programs that focus on ami pr<>Yide benefits only for DBE-~ ·nu: me of contract goals is a primary example of a Race Conscious measure, The Race Neutral Goa I portion should indudc f.>tog,rarns that, while benefiting DBE<, arc not solely focused on DBE firms. For example, a sm<~ H bnsi ness outr>i:'adt program, technical ::.tSSlStance~ and prompt payt~tent clauses can a~slst a "''ide 'ld.1rlcty of bu~lnessc;; in ~tddltion to helping DB!' ttrms. 8-9. The <~mounts in items R(A)·'i(l) should include aH types of prime contracts awarded and all types of subcontrads awcuded or conHlliltetL tnciuding: prnft~ssional or con:\ult.ant st"f'".ti('C$, construction. purchase C1 f m.atetials or supplies. lease or purchase t1f equipmenr and <my other types of services. :\!! dollar amounts arc to rdlcet unly the Federal sham of such contracts, and shuuld be rounded to the nearest dollar. 8(A), Ptovide the to\31 dolhr aroolmt for ali prime contracts as$i5tcd with DOT fnnds that were awarded during this reporting period. g(B). Provide the tOtal number of all prime contracts asst,l<:d with DOT funds tlwt were awarded during this reporting period. S(C), From the total d(>llor amount awarded in it.:m 8(.-\)_ provid<.: the doJ!u amount awarded to certified DBEs during this reponing period, ti(D). From the total number of prime contracts awarded in item 8(B), spe-:ify the numbs;r awarded to certified DBEs during this reponing period S(E). From the total dollars awarded in 8(('), provide the ilii.J.l.;u: amO\mt aw~rnlcd t<• DBEs though the use of Race Cons.::iom melbods. Set: th~ definition of Race Conscious Goal in item 7 and the cxpiarwtion of project types in item 8 to include in your ca!cularion 8(F), f'rom 1!w total number <-•f prime contracts awanh:d in X( D), specifY the I.!JJlll!ls.r aw:mied to DBEs through Race Conscious methoJs. 88 ~(G) From the total dollar amount ;nv;.nkd in item 3(C). provide the dollar amnunt awarded to •ertiri;:d DBEs through the us,~ of Race "<emral methods, Sc.e the ddimtion of Race Neutral Goal in item 7 and the expianatlun of pn~je(-t types ln ittnl 8 to include. g(H). From the total numher of prime contr;~.cts awarded in 8(D), specify the number awarded to DBEs thwugh Race Neutral methods, 8(1l. Of all prim~ .:contracts aw::nJcd this rcpolling period, calculate the ocrcc>ntage going to DBEs. Di"idc the uollar amount in it~m X(C) by the dollar amount in item 81A) to derive this pen.centage. Round percentage to the nearest tenth, 9(A)-9(1). Items 9(A)-9(l) are derived in the same way as items 1\{A)- l>(IJ. except that these calculations should be based on subcontracts rather than prime contracts. Unlike prime contracts. which may only be awarded, subcontracts may be either awarded nr committed, !O{A)-11(1). For all DBEs <rwanlt•d prime contract$ and awarded or committed subcontracts as indicated in S(C)-(D) and 9(C)-(D), break the data dov<'n further by total dnllar amount as well as the number of aH contracts going to e~Jch ethnic group ~ts \VCH a-s to non"' minority wnmetL The "Other'· category includes those DBEs who are not rnernuers of the prc>umptively di~«dV<rtllaged groups already listed, but who arc determined digibtc for the DBE program on an individual basis (e.g. a Caucasian male with a disability), The l OTALS value in lO(H) should equal the sum of tl(C) plus 9(C), and sir.1ilarly, the TOTALS value in li(H) should equal the sum of 8(D) plus 9(0). Column l should only he filled nul if thts report is due on December I, as ind1cated in item 5. The values for this column r.n: derived by adding the v:1lues rt!port~d in cohmnl H in your first rqmrt with the values reported in this second report 12(A). Provide the \otai number of prime contracts completed during th;s repoHi"g pcriml tlMt had Race Conscious goals. Race Consdou~ t;untntcts arc th~"s;: with contract goals or another l{aee Conscious measure. l2{B). Pro\·ide the tNal dollar value of prime contracts completed !his reporting period that had Race: Consdom goals. 12(C), Provide the total dol!nr amount <>f DHE participation on a 11 Race Conscious prime contracts completed this reporting period that was neccssnr:y to meet the conrrn.ct t;.oaJs on th-crn This applies only to Race Consdous prin1e contr~c:ts. l 2(D). Provide the anua! total DBE participation in dollars on the race <:onsdou!> prime contrJcts completed this reporting period. 12{1'1. Of all the prime contracts wmpl~w<l this reporting period, <:akulatc th.: percentage of DBE piifticipation. Divide the actual wu>l dollar amount in l2(D) by the tnwl dollar value provided in l2(B) to derive thi;; percentage. Round to the nearest tenth. 13(A)-13(E), ltems l3(A)-D(E) are derived in the same manner as items !2(A)-!2(E), except tht'SC figures should he based (>n Rncc Ncntral prime contacts (Le, those with no race conscious measures), 14(A)-14(E). Cakul•te the totals for ca.:h column by adding the race conscious and neutral figures provided in each row above. 15. Name of the Authorized Representative preparing this form. i 6. Signature of the Authorized Repre>entmivc. 17. Phone number ni the Authorized RqJre>entative. 18. Fax number of the Au1herized Representative. ,. •submit your c:omplt•tt·d n:port t-o your RegtunaJ or Division Office~ TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Appendix C to Part 26-DBE Business Development Program Guidelines The purpose of this program element is to further the development of DBEs, including but not limited to assisting them to move into non-traditional areas of work and/or compete in the marketplace outside the DBE program, via the provision of training and assistance from the recipient. (A) Each firm that participates in a recipient's business development program (BOP) program is subject to a program term determined by the recipient. The term should consist of two stages; a developmental stage and a transitional stage. (B) In order for a firm to remain eligible for program participation, it must continue to meet all eligibility criteria contained in part 26. (C) By no later than 6 months of program entry, the participant should develop and submit to the recipient a comprehensive business plan setting forth the participant's business targets, objectives and goals. The participant will not be eligible for program benefits until such business plan is submitted and approved by the recipient. The approved business plan will constitute the participant's short and long term goals and the strategy for developmental growth to the point of economic viability in non-traditional areas of work and/or work outside the DBE program. (D) The business plan should contain at least the following: (1) An analysis of market potential, competitive environment and other business analyses estimating the program participant's prospects for profitable operation during the term of program participation and after graduation from the program. (2) An analysis of the firm's strengths and weaknesses, with particular attention paid to the means of correcting any financial, managerial, technical, or labor conditions which could impede the participant from receiving contracts other than those in traditional areas of DBE participation. (3) Specific targets, objectives, and goals for the business development of the participant during the next two years, utilizing the results of the analysis conducted pursuant to paragraphs (C) and (0)(1) of this appendix; (4) Estimates of contract awards from the DBE program and from other sources which are needed to meet the objectives and goals for the years covered by the business plan; and (5) Such other information as the recipient may require. (E) Each participant should annually review its currently approved business plan with the recipient and modify the plan as may be appropriate to account for any changes in the firm's structure and redefined needs. The currently approved plan should be considered the applicable plan for all program purposes until the recipient approves in writing a modified plan. The recipient should establish an anniversary date for review of the participant's business plan and contract forecasts. (F) Each participant should annually forecast in writing its need for contract awards for the next program year and the succeeding program year during the review of its business plan conducted under paragraph (E) of this appendix. Such forecast should be included in the participant's business plan. The forecast should include: (1) The aggregate dollar value of contracts to be sought under the DBE program, reflecting compliance with the business plan; (2) The aggregate dollar value of contracts to be sought in areas other than traditional areas of DBE participation; (3) The types of contract opportunities being sought, based on the firm's primary line of business; and (4) Such other information as may be requested by the recipient to aid in providing effective business development assistance to the participant. (G) Program participation is divided into two stages; (1) a developmental stage and (2) a transitional stage. The developmental stage is designed to assist participants to overcome their social and economic disadvantage by providing such assistance as may be necessary and appropriate to enable them to access relevant markets and strengthen their financial and managerial skills. The transitional stage of program participation follows the developmental stage and is designed to assist participants to overcome, insofar as practical, their social and economic disadvantage and to prepare the participant for leaving the program. (H) The length of service in the program term should not be a pre-set time frame for either the developmental or transitional stages but should be figured on the number of years considered necessary in normal progression of achieving the firm's established goals and objectives. The setting of such time could be factored on such items Page 46 of 50 89 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs as, but not limited to, the number of contracts, aggregate amount of the contract received, years in business, growth potential, etc. (I) Beginning in the first year of the transitional stage of program participation, each participant should annually submit for inclusion in its business plan a transition management plan outlining specific steps to promote profitable business operations in areas other than traditional areas of DBE participation after graduation from the program. The transition management plan should be submitted to the recipient at the same time other modifications are submitted pursuant to the annual review under paragraph (E) of this section. The plan should set forth the same information as required under paragraph (F) of steps the participant will take to continue its business development after the expiration of its program term. (J) When a participant is recognized as successfully completing the program by substantially achieving the targets, objectives and goals set forth in its program term, and has demonstrated the ability to compete in the marketplace, its further participation within the program may be detenmined by the recipient. (K) In determining whether a concern has substantially achieved the goals and objectives of its business plan, the following factors, among others, should be considered by the recipient: ( 1) Profitability; (2) Sales, including improved ratio of non-traditional contracts to traditional-type contracts; (3) Net worth, financial ratios, working capital, capitalization, access to credit and capital; (4) Ability to obtain bonding; (5) A positive comparison of the DBE's business and financial profile with profiles of non-DBE businesses in the same area or similar business category; and (6) Good management capacity and capability. (L) Upon determination by the recipient that the participant should be graduated from the developmental program, the recipient should notify the participant in writing of its intent to graduate the finm in a letter of notification. The letter of notification should set forth findings, based on the facts, for every material issue relating to the basis of the program graduation with specific reasons for each finding. The letter of notification should also provide the participant 45 days from the date of service of the letter to submit in writing information that would explain why the proposed basis of graduation is not warranted. (M) Participation of a DBE firm in the program may be discontinued by the recipient prior to expiration of the firm's program term for good cause due to the failure of the firm to engage in business practices that will promote its competitiveness within a reasonable period of time as evidenced by, among other indicators, a pattern of inadequate performance or unjustified delinquent performance. Also, the recipient can discontinue the participation of a firm that does not actively pursue and bid on contracts, and a firm that, without justification, regularly fails to respond to solicitations in the type of work it is qualified for and in the geographical areas where it has indicated availability under its approved business plan. The recipient should take such action if over a 2- year period a DBE firm exhibits such a pattern. Appendix D to Part 26-Mentor-Protege Program Guidelines (A) The purpose of this program element is to further the development of DBEs, including but not limited to assisting them to move into non-traditional areas of work and/or compete in the marketplace outside the DBE program, via the provision of training and assistance from other firms. To operate a mentor-protege program, a recipient must obtain the approval of the concerned operating administration. (B) (1) Any mentor-protege relationship shall be based on a written development plan, approved by the recipient, which clearly sets forth the objectives of the parties and their respective roles, the duration of the arrangement and the services and resources to be provided by the mentor to the protege. The formal mentor-protege agreement may set a fee schedule to cover the direct and indirect cost for such services rendered by the mentor for specific training and assistance to the protege through the life of the agreement. Services provided by the mentor may be reimbursable under the FTA, FHWA, and FAA programs. (2) To be eligible for reimbursement, the mentor's services provided and associated costs must be directly attributable and properly allowable to specific individual contracts. The recipient may establish a line item for the mentor to quote the portion of the fee schedule expected to be provided during the life of the contract. The amount claimed shall be verified by the recipient and paid on an incremental basis representing the time the protege is working on the contract. The total individual contract figures accumulated over the life of the agreement shall not exceed the amount stipulated in the original mentor/protege agreement. Page 47 of 50 90 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (C) DBEs involved in a mentor-protege agreement must be independent business entities which meet the requirements for certification as defined in subpart D of this part. A protege firm must be certified before it begins participation in a mentor-protege arrangement If the recipient chooses to recognize mentor/protege agreements, it should establish formal general program guidelines. These guidelines must be submitted to the operating administration for approval prior to the recipient executing an individual contractor/ subcontractor mentor-protege agreement Appendix E to Part 26-lndividual Determinations of Social and Economic Disadvantage The following guidance is adapted, with minor modifications, from SBA regulations concerning social and economic disadvantage determinations (see 13 CFR 124.103(c) and 124.104). Social Disadvantage I. Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias within American society because of their identities as members of groups and without regard to their individual qualities. Social disadvantage must stem from circumstances beyond their control. Evidence of individual social disadvantage must include the following elements: (A) At least one objective distinguishing feature that has contributed to social disadvantage, such as race, ethnic origin, gender, disability, long-term residence in an environment isolated from the mainstream of American society, or other similar causes not common to individuals who are not socially disadvantaged; (B) Personal experiences of substantial and chronic social disadvantage in American society, not in other countries; and (C) Negative impact on entry into or advancement in the business world because of the disadvantage. Recipients will consider any relevant evidence in assessing this element. In every case, however, recipients will consider education, employment and business history, where applicable, to see if the totality of circumstances shows disadvantage in entering into or advancing in the business world. (1) Education. Recipients will consider such factors as denial of equal access to institutions of higher education and vocational training, exclusion from social and professional association with students or teachers, denial of educational honors rightfully earned, and social patterns or pressures which discouraged the individual from pursuing a professional or business education. (2) Employment. Recipients will consider such factors as unequal treatment in hiring, promotions and other aspects of professional advancement, pay and fringe benefits, and other terms and conditions of employment; retaliatory or discriminatory behavior by an employer or labor union; and social patterns or pressures which have channeled the individual into non-professional or non-business fields. (3) Business history. The recipient will consider such factors as unequal access to credit or capital, acquisition of credit or capital under commercially unfavorable circumstances, unequal treatment in opportunities for government contracts or other work, unequal treatment by potential customers and business associates, and exclusion from business or professional organizations. II. With respect to paragraph I.(A) of this appendix, the Department notes that people with disabilities have disproportionately low incomes and high rates of unemployment Many physical and attitudinal barriers remain to their full participation in education, employment, and business opportunities available to the general public. The Americans with Disabilities Act (ADA) was passed in recognition of the discrimination faced by people with disabilities. It is plausible that many individuals with disabilities-especially persons with severe disabilities (e.g., significant mobility, vision, or hearing impairments)-may be socially and economically disadvantaged. Ill. Under the laws concerning social and economic disadvantage, people with disabilities are not a group presumed to be disadvantaged. Nevertheless, recipients should look carefully at individual showings of disadvantage by individuals with disabilities, making a case-by-case judgment about whether such an individual meets the criteria of this appendix. As public entities subject to Title II of the ADA, recipients must also ensure their DBE programs are accessible to individuals with disabilities. For example, physical barriers or the lack of application and information materials in accessible formats cannot be permitted to thwart the access of potential applicants to the certification process or other services made available to DBEs and applicants. Economic Disadvantage (A) General. Economically disadvantaged individuals are socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially disadvantaged. (B) Submission of narrative and financial information. Page 48 of 50 91 ---------------------------------- TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (1) Each individual claiming economic disadvantage must describe the conditions which are the basis for the claim in a narrative statement, and must submit personal financial information. (2) [Reserved] (C) Factors to be considered. In considering diminished capital and credit opportunities, recipients will examine factors relating to the personal financial condition of any individual claiming disadvantaged status, including personal income for the past two years (including bonuses and the value of company stock given in lieu of cash), personal net worth, and the fair market value of all assets, whether encumbered or not. Recipients will also consider the financial condition of the applicant compared to the financial profiles of small businesses in the same primary industry classification, or, if not available, in similar lines of business, which are not owned and controlled by socially and economically disadvantaged individuals in evaluating the individual's access to credit and capital. The financial profiles that recipients will compare include total assets, net sales, pre-tax profit, sales/working capital ratio, and net worth. (D) Transfers within two years. (1) Except as set forth in paragraph (0)(2) of this appendix, recipients will attribute to an individual claiming disadvantaged status any assets which that individual has transferred to an immediate family member, or to a trust, a beneficiary of which is an immediate family member, for less than fair market value, within two years prior to a concern's application for participation in the DBE program, unless the individual claiming disadvantaged status can demonstrate that the transfer is to or on behalf of an immediate family member for that individual's education, medical expenses, or some other form of essential support. (2) Recipients will not attribute to an individual claiming disadvantaged status any assets transferred by that individual to an immediate family member that are consistent with the customary recognition of special occasions, such as birthdays, graduations, anniversaries, and retirements. (3) In determining an individual's access to capital and credit, recipients may consider any assets that the individual transferred within such two-year period described by paragraph (0)(1) of this appendix that are not considered in evaluating the individual's assets and net worth (e.g., transfers to charities). [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35559, June 16, 2003] Page 49 of 50 92 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Appendix F to Part 26-Uniform Certification Application Form See Exhibit D: CUCP DBE C.ertification Application or www.californiaucp.org. [68 FR 35559, June 16, 2003] Page 50 of 50 93 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program State Route 91 Corridor Improvement Project Exhibit B DBE Program Organizational Chart 94 -------------------------------------. Exhibit B Riverside County Transportation Commission (RCTC} Disadvantaged Business Enterprise (DBE} Program Organizational Chart For DBE Purposes: DBE Liaison Officer Reports Directly to Executive Director DBE Liaison Officer Contact Information: Mr. Matthew Wallace Riverside County Transportation Commission (RCTC) 4080 Lemon Street, 3rd Floor Riverside, CA 92501 (951) 787-7908 (951) 787-7906 fax E-Mail: mwallace@rctc.org 95 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program State Route 91 Corridor Improvement Project Exhibit C RCTC Goal Setting Methodology 96 RIVERSIDE COUNTY TRANSPORTATION COMMISSION (RCTC) Overall DBE Project Goal Methodology for the State Route 91 Corridor Improvement Project Submitted in fulfillment of: Title 49 Code of Federal Regulations Part 26 97 RCTC State Route 91 Corridor Improvement Project Overall DBE Project Goal Methodology Page 2 of 11 OVERALL DBE PROJECT GOAL METHODOLOGY FOR STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT I. INTRODUCTION The State Route 91 Corridor Improvement Project (Project) is the critical link between Riverside and Orange Counties in Southern California connecting the coastal and inland job centers. In addition to the relief provided to Southern California's most congested corridor, the project is critical to the local and regional economy. In 2002, the residents of Riverside County voted for Measure A, Riverside County local sales tax initiative, providing leverage and over 60% of the funding for the Project. An additional 34.18% of the funding is planned to be provided by the U.S. Department of Transportation through the Transportation Infrastructure and Innovation Act (TIFIA) loan. As the agency responsible for the implementation of transportation projects within Riverside County, Riverside County Transportation Commission (RCTC) is the direct recipient of federal funds provided for the Project. In 2010, the Governor of California signed into law AB 2098 allowing RCTC to use the design-build project delivery method to deliver the Project. This delivery method provides the opportunity to accelerate the creation of local jobs and the completion of the Project by at least three years. RCTC herein sets forth its proposed Overall DBE Project Goal and corresponding methodology for the Project, in accordance with Title 49 CFR Part 26 requirements. RCTC does not have demonstrable evidence on-hand of discrimination in its transportation contracting program. Therefore, RCTC adopted a wholly race-neutral Overall DBE Project Goal. In accordance with the federally prescribed goal setting requirements, a race conscious component is not included for this goal. The proposed Overall DBE Project Goal is separate and apart from RCTC's other FHWA-assisted contracts administered in conformance with the Caltrans Local Agency DBE sub- recipient Agreement. The Project scope will include making significant improvements to State Route 91, including construction of an additional general purpose lane in each direction from the Orange County Line to Pierce Street; an extension of the tolled Express Lanes High Occupancy Toll facility from SR-241 to Interstate 15 (including direct connectors to 1- 15); and improvement of the SR-91/SR-71 Interchange. The Proposed Overall DBE Project Goal for the Project is 2.9% of the total project amount. The goal is representative of the relative availability of DBEs based on evidence of ready, willing and able DBEs with offices located within RCTC's defined market area (Riverside County, San Bernardino County and Orange County), to all comparable businesses which are known to be available to compete for the contracting opportunities associated with this project. Additionally, the methodology also took into consideration RCTC's past DBE goal attainments/commitments to the extent applicable, Bidders List, Caltrans Disparity Study, other similar Agencies' DBE goals, and attainments within RCTC's jurisdiction and other relevant evidence. Sections II and Ill 98 RCTC State Route 91 Corridor Improvement Design-Build Project Overall DBE Project Goal Methodology Page 3 of 11 delineate the methodology undertaken to establish the proposed Overall DBE Project Goal for this wholly race-neutral program. The selected Design-Builder will be required, to develop a performance plan, to identify the approach used to utilize DBE firms and other small businesses to the greatest extent possible. II. FHWA-ASSISTED CONTRACTING PROGRAM: SR-91 CORRIDOR IMPROVEMENT DESIGN-BUILD PROJECT Chart 1 identifies the Project's anticipated federal dollar share 1 considered in preparing this proposed Overall DBE Project Goal. CHART 1 Total Estimated Project Cost Table 1 provides a summary of the categories of work with estimated cost breakdown for each. This Design-Build Project is grouped by categories of work utilizing comparable North American Industry Classification System (NAICS) codes for purposes of weighting the categories of work based on the engineer's estimate. 1 1n the event the percentage of the federal funding changes from the projected amount of 34.18 for this project, the goal will be subject to further modification. 99 RCTC State Route 91 Corridor Improvement Project Overall DBE Project Goal Methodology Page 4 of 11 TABLE 1 237130 and Communication Line and Related 22,900,000 ctures Construction 237310 541 ,341,000 237990 39,086,000 238120 I Steel and Precast Concrete 7,400,000 238210 ectrical Contractors and Other Wiring 15,141,000 nstallation Contractors 238910 Preparation Contractors 40,128,400 238990 I Other Specialty Trade Contractors 985,000 484110 neral Freight Trucking, Local 1,621,600 541320 Architectural Services 3,020,000 541330 59,800,000 541370 urveying and Mapping (except Geophysical) 4,700,000 541380 ng Laboratories 1,553,250 541614 s, Physical Distribution, and Logistics 32,514,000 onsulting Services 541620 mental Consulting Services 8,801,750 561730 17,600,000 6,347,000 $804,084,000 2.85% 67.32% 4.86% 0.92% 1.88% 4.99% 0.12% 0.20% 0.38% 7.44% 0.58% 0.19% 4.04% 1.09% 2.19% 0.79% 100% Ill. PROPOSED OVERALL DBE PROJECT GOAL -METHODOLOGY Step 1: Determination of a Base Figure (26.45/ To establish the Base Figure for this Project, RCTC followed one of the five prescribed federal methodologies to determine relative availability of DBEs to all comparable firms available to bid or propose on the Project. This was accomplished by accessing the California Unified Certification Program (CUCP) DBE Directory of Certified Firms 2 26.45 represents Title 49 CFR Part 26 regulatory goal setting methodology reference. 100 RCTC State Route 91 Corridor Improvement Design-Build Project Overall DBE Project Goal Methodology Page 5 of 11 and the 2009 U.S. Census Bureau County Business Patterns (CBP) Database by corresponding counties within RCTC's market area (defined as Riverside County, San Bernardino County, and Orange County) for each of the identified subcontracting possibilities compiled by North American Industry Classification System (NAICS) Codes. RCTC's defined market area represents where the Project will be built and where the substantial majority of RCTC's funding dollars are intended to be expended. Additionally, the established market area has historically been utilized in other RCTCs goal-setting analysis. 3 RCTC 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: ¢ For the denominator: CUCP Directory of Certified DBE Firms* 2009 U.S. Census Bureau CBP Database of Firms* *located in RCTC's market area To determine the relative availability of DBEs, RCTC divided the numerator representing the number of ready, willing and able DBE firms by NAICS that are located within RCTC's defined market area, by the denominator representing all firms (DBEs and Non-DBEs) available within the defined market area by each work category. RCTC further refined its analysis by weighting each individual work category (from Table 1 above) relative to the engineer's estimate and corresponding federal dollar share of the major work category codes. The proposed Overall DBE Project Goal Base Figure resulting from this weighted calculation is as follows: [ Number of Ready, Willing, and Able DBEs Weight of J Number of All Available Firms X NAICS% x 100 = (Including DBEs and Non-DBEs) 98 179 99 105 PROPOSED OVERALL DBE PROJECT GOAL BASE FIGURE 0 0.0285 0.00% 18 0.6732 6.77% 11 0.0486 0.54% 12 0.0092 0.11% 3 RCTC has utilized the same market area for the RCTC DBE Overall Annual goal submittal to Caltrans for FY 2009/10. 101 RCTC State Route 91 Corridor Improvement Project Overall DBE Project Goal Methodology Page 6 of 11 Contractors and Other Installation Contractors 1658 31 0.0188 0.04% 578 20 0.0499 0.17% 794 20 0.0012 0.00% I Freight Trucking, Local 583 18 0.0020 0.01% 195 5 0.0038 0.01% neering Services 1596 64 0.0744 0.30% ing and Mapping (except 120 10 0.0058 0.05% Services 179 3 0.0019 0.00% 170 7 0.0404 0.17% 221 39 0.0109 0.19% 1498 5 0.0219 0.01% 0.08% 8.44% 2.9% STEP 2: Adjusting the Base Figure Upon establishing the Base Figure, RCTC reviewed and assessed other known evidence potentially impacting the relative availability of DBEs within RCTC's market area, in accordance with prescribed narrow tailoring provisions set forth under 49 CFR, Part 26.45 Step II DBE Goal Adjustment guidelines. Evidence considered in making an adjustment to the Base Figure included RCTC's Past DBE Goal Attainments/Commitments as applicable, RCTC's Bidders List, Caltrans Disparity Study, Other Agencies' DBE Goals and Attainments within Riverside County Transportation Commission's jurisdiction and Other Relevant Evidence. A summary of these considerations follows: A. Past RCTC DBE Goal Attainments/Commitments While historical DBE goal attainments provide a viable means of determining DBEs availability to bid and capacity to perform on DOT-assisted contracts, based on prior RCTC contracts of similar types of work, DBEs have shown the capacity to work at this level. Table 3 below serves to identify DBE commitments and/or attainments of federal-assisted contracts let and awarded by RCTC from 2007 to present: 102 RCTC State Route 91 Corridor Improvement Design-Build Project Overall DBE Project Goal Methodology Page 7 of 11 TABLE 3 0% $22,700,000 10.5% 8.5% 8.5% Not available $13,400,000 5.6% 4.18% (Project in $185,955,000 12.0% %Not yet Not available available R-91/SR-71 Interchange $11,700,000 3.79% %Not yet Not available available As RCTC does not have comparable projects of similar size and scope to the Project, no adjustment to the Base Figure resulted from this consideration. B. Riverside County Transportation Commission's Bidders List The Bidders List serves as important demonstrable evidence of DBEs availability and capacity to perform, however, RCTC's available Bidders List(s) is limited to On- Call Maintenance Repair Services, and is not representative of all Bidders/Firms available and capable of performing work under the defined work categories for this project. Therefore, no adjustment to the Base Figure was made in consideration of this factor. C. Evidence from Disparity Studies RCTC's market area is different than the market area considered in the State of California Department of Transportation (Caltrans) Disparity Study. Therefore, the results of the disparity study are not applicable to this project. In lieu of this and the fact that RCTC lacks sufficient evidence of discrimination in our transportation contracting program, RCTC is adopting a race neutral program. D. Other Agencies DBE Project Goals RCTC surveyed other DOT -recipients design-build and other construction projects within RCTC's market area, to assess their DBE goals toward making an adjustment to the Step I Base Figure. Agencies included in the survey were the Orange County Transportation Authority and San Bernardino Associated Governments. The calculated average contract-specific DBE goal amounted to 8.54%, which was found to be in alignment with RCTC's Base Figure of 8.44%. Therefore, no further adjustment to the Base Figure was recommended to be taken. 103 RCTC State Route 91 Corridor Improvement Project Overall DBE Project Goal Methodology Page 8 of 11 1-215 Widening (4 Phases) $800,000,000 $244,325,327 San Bernardino Associated SR-21 0: Foothill Freeway $714,000,000 $96,900,000 Governments 1-Avenue $34,000,000 $1,600,000 Rialto Orange County SR-22 HOV Lane-Design Transportation $550,000,000 $306,000,000 Auth Build Project E. Other Evidence 1.37% 14% 6.79% 12% RCTC has not received any anecdotal evidence nor is aware of any other factors or adverse considerations that would have a material affect on DBEs availability within RCTC's market place, or on DBEs ability to participate (meeting bonding, insurance and financial requirements) in RCTC's Project at this time. However, the public facilitation process may result in the identification of evidence that may have a material effect on the proposed DBE goal's Base Figure which would require an adjustment. Prior to finalizing this goal-setting process and establishing the Overall DBE Project Goal this factor will once again be considered if new evidence is identified. RCTC will continue to explore and consider all available evidence that materially would affect the opportunities for DBEs to form, grow, and compete in developing this and future Overall DBE Project goals, as applicable. RACE-NEUTRAURACE-CONSCIOUS PROJECTIONS RCTC's market area is different than the market area considered in the State of California Department of Transportation (Caltrans) Disparity Study. Therefore, RCTC is adopting a race neutral program. RCTC projects to meet the overall DBE project goal through race neutral means. IV. GOAL APPLICATION The projected federal dollar share of this project is $274,835,911 (34.18% of the overall project cost). In accordance with Section 26.45(e), the Proposed Overall DBE Project Goal is expressed as a percent of FHWA funds anticipated to be expended on the Project, as follows: Total Estimated Project Value $804,084,000 Estimated Federal Dollar Value $27 4,835,911 (34.18%) Step 1 Base Figure Based on Federal Share 8.44% X 34.18% = 2.9% The information RCTC reviewed in Step 2 does not merit an adjustment, therefore we propose an overall DBE project goal of 2.9%. 104 RCTC State Route 91 Corridor Improvement Design-Build Project Overall DBE Project Goal Methodology Page 9 of 11 The proposed Overall DBE Project Goal based on the federal share is a Race Neutral goal for RCTC and the Design-Builder (the prime contractor on the Design-Build Project). RCTC and the Design-Builder will implement race neutral measures to achieve this goal, as generally described in the following section. Additionally RCTC will require the Design-Builder to develop a performance plan that will specify their approach to implementing these race neutral measures. The performance plan will also require the Design-Builder to specify elements of the contract or specific subcontracts that are of a size that small businesses, including DBEs, can reasonably perform. V. RACE-NEUTRAL IMPLEMENTATION MEASURES In accordance with Title 49 CFR Part 26.51, RCTC understands its obligation to ensure that the selected Design-Builder meets the maximum feasible portion of the Proposed Overall DBE Project Goal by utilizing race-neutral means of facilitating DBE participation. RCTC plans to require full implementation of the following race-neutral measures in conjunction with others necessary to meet DOT's DBE program objectives and RCTC's Overall DBE Project goal for the Project, including but not limited to: 'Y RCTC has considered the full complement of race-neutral measures identified in 49 CFR part 26. Based on the PROJECT circumstances, RCTC plans to implement the following race-neutral activities aimed at increasing DBE and other small business participation in the PROJECT. 'Y RCTC will structure and present the PROJECT solicitation and schedules in ways that facilitate DBE and other small business participation with prospective Design-Builders. RCTC will also facilitate Small Business conferences for the PROJECT, which includes a networking component to promote teaming opportunities between prospective Design-Builders and the DBE and Small Business contracting community. 'Y RCTC will require the Design-Builder to provide assistance to Small Business including DBEs in overcoming limitations such as inability to obtain bonding or financing RCTC will additionally refer the DBE and Small Business contracting community to the SBA Bonding Assistance Program. 'Y RCTC will carry out a communications effort to inform DBEs and other Small Businesses of opportunities that may be available with the Design-Builder on the PROJECT. 'Y As a supportive service to help develop and improve immediate and long-term business management, record keeping, and financial and accounting capability for DBEs and other small businesses, RCTC will actively promote Small Business conferences, programs and supportive services currently offered by peer agencies which have mature DBE and Small Business Programs and are seeking increased DBE and Small Business participation in their programs. 105 RCTC State Route 91 Corridor Improvement Project Overall DBE Project Goal Methodology Page 10 of 11 RCTC will advise the Design-Builder and other contractors seeking to participate on the PROJECT to the online directory of certified DBEs, found at the California Unified Certification Program website: www.CaliforniaUCP.com VI. PUBLIC PARTICIPATION AND FACILITATION In accordance with Public Participation Regulatory Requirements of 49 CFR Part 26, minority, women, local business chambers, and community organizations within RCTC's market area will be consulted and provided an opportunity to review this goal analysis. RCTC will prepare an Outreach Consultation Letter advising the aforementioned business community of the DBE goal analysis and its availability for review and conduct a public meeting to solicit public comment and input. RCTC will also issue a Public Notice of the proposed Overall DBE Project Goal for the Project in the Press Enterprise, a general circulation media and the following small business and minority focused media and trade publications: Precinct Reporter Group, The Hispanic News, Minority Business Entrepreneur Magazine, The BVN, Pacific Asian Current, Minority Bidders Bulletin, The Thomas Bid Register, McGraw Hill Construction, On Line Service: www.ContractorsEstimate.com, and/or www.goodfaitheffort.com. Such Notice will inform the public that the goal and its rationale is available for inspection at RCTC's offices (from 8:00 a.m. to 4:30 p.m., Pacific Standard Time, Monday through Friday), for 30 days following the date of the Public Notice and that RCTC will accept comments on the goal analysis for 45 days from the date of the Public Notice. The Notice will also include, as required, the FHWA's point of contact information, as follows: FHWA Point of Contact Information for the DBE Program • Lance Yakota, Civil Rights Program Manager, 650 Capitol Mall, Ste. 4-100, Sacramento, CA 95814-4708; FHWA California Division: http://www.fhwa.dot.gov/cadiv/index.htm; (916) 498-5012, X-262 (Lance Yokota) The notice shall additionally include the address to which comments may be sent and phone number for questions. VII. Prompt Payment Mechanisms RCTC will include the following clause in the Design-Build contract, which includes flow down provisions: PROMPT PAYMENT Design-Builder agrees to pay each subcontractor under this contract for satisfactory performance of its contract no later than 10 days from the receipt of each payment the Design-Builder receives from RCTC. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval from RCTC. This clause applies to all (DBE and non-DBE) subcontractors and subconsultants. 106 RCTC State Route 91 Corridor Improvement Design-Build Project Overall DBE Project Goal Methodology Page 11 of 11 PROMPT PAYMENT OF FUNDS WITHHELD TO SUBCONTRACTORS RCTC shall hold retainage from the Design-Builder and shall make prompt and regular incremental acceptances of portions, as determined by RCTC, of the contract work, and pay retainage to the Design-Builder based on these acceptances. The Design-Builder, or subcontractor, shall return all monies withheld in retention from a subcontractor within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by RCTC. Federal law (49CFR26.29) requires that any delay or postponement of payment over 30 days may take place only for good cause and with the agency's prior written approval. Any violation of this provision shall subject the violating Design-Builder 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 Design- Builder or subcontractor in the event of a dispute involving late payment or nonpayment by the Design-Builder, deficient subcontract performance, or noncompliance by a subcontractor. 107 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program State Route 91 Corridor Improvement Project Exhibit D CUCP DBE Certification Application 108 CALIFORNIA UNIFIED CERTIFICATION PROGRAM (CUCP) DISADVANTAGED BUSINESS ENTERPRISE (DBE) CERTIFICATION APPLICATION ucp UNIFIED CERTIFICATION PROGRAM To access the statewide CUCP DBE database, please log onto: CALIFORNIAUCP.COM (Rev 6111/20 II) 109 CALIFORNIA UNIFIED CERTIFICATION PROGRAM (CUCP) Dear Business Owner: Thank you for your interest in participating in the California Unified Certification Program (CUCP) for Disadvantaged Business Enterprises (DBEs). As mandated by the United States Department ofTransportation (U.S. DOT) in the DBE Program, Final Rule 49 Code of Federal Regulations (CFR), Part 26, all U.S. DOT recipients of federal financial assistance must participate in a statewide UCP by March 2002. The UCP is a "One-Stop Shopping" certification procedure that eliminates the need for DBE firms to obtain certifications from multiple agencies within the State. The CUCP is charged with the responsibility of certifying firms and compiling and maintaining the Database of certified DBEs for U.S. DOT grantees in California, pursuant to 49 CFR Part 26. The Database is intended to expand the use ofDBE firms by maintaining complete and current information on those businesses and the products and services they can provide to all grantees of California. Please complete the attached application and supplemental questionnaire ifyou wish to be considered for DBE certification and your business meets the following general guidelines: a) The firm must be at least 51% owned by one or more socially and economically disadvantaged individuals. b) The firm must be an independent business, and one or more ofthe socially and economically disadvantaged owners must control its management and daily operations. c) Only existing for-profit "Small Business Concerns," as defined by the Small Business Act and Small Business Administration (SBA) regulations may be certified. DBE applicants are first subject to the applicable small business size standards of the SBA. Second, the average annual gross receipts for the firm (including its affiliates) over the previous three fiscal years must not exceed U.S. DOT's cap of$22.41 million. d) The Personal Net Worth (PNW) of each socially and economically disadvantaged owner must not exceed $1.32 million, excluding the individual's ownership interest in the applicant firm and the equity in his/her primary residence. For firms applying for Airport Concession DBE certification: Please refer to the Airport Concessions Disadvantaged Business Enterprise (ACDBE) Certification Application for applicable average annual gross receipts and personal net worth dollar limitations. (Rev 2/28/20 II) 110 Page 2 Socially and economically disadvantaged individual means any individual who is a citizen of the United States (or lawfully admitted permanent resident) and who is a member of the following groups: Black American, Hispanic American, Native American, Asian-Pacific American, Subcontinent Asian American, or Women, or Any individual found to be socially and economically disadvantaged on a case-by-case basis by a certifying agency pursuant to the standards of the U.S. DOT 49 CFR Part 26. In order to avoid unnecessary delays, please complete all portions of the application and supplemental questionnaire, placing "N/A" next to items that are not applicable. Include all copies of documents requested on the application, and have the Affidavit of Certification notarized. Additional documentation may be requested if it is considered necessary to make a certification determination. Incomplete applications/supplemental questionnaires or applications/supplemental questionnaires without all the required documents will not be evaluated until such documents are submitted. We recommend keeping a copy of all submitted documents for your records. REMEMBER: It is no longer necessary to apply at more than one agency. If your firm meets the criteria for certification, it will be entered into the Database ofDBEs for all U.S. DOT grantees in California. Only firms currently certified as eligible DBEs may participate in the DBE programs of U.S. DOT grantees of California. Ifyou wish to be considered for Airport Concession DBE certification only, you will need to complete the Airport Concession DBE Certification Application Package, which can be accessed at www.CaliforniaUCP.com. The CUCP has established two Regional DBE Certification Clusters throughout the State to effectively facilitate statewide DBE certification activities. Please forward your completed certification packet to one of the agencies serving the county where your firm has its principal place of business. (See enclosed Roster of CertifYing Agencies.) For Out-of-State Firms: The CUCP will not process a new application for DBE certification from a firm having its principal place of business in another state unless the firm has already been certified in that state. Ifyour firm is located outside of California and is certified as a DBE in your home state, please forward your completed certification packet, along with a copy of your DBE certificate, to the California Department of Transportation. (See page 2 of the enclosed Roster of Certifying Agencies.) (Rev 2/28/20 I I) 111 CALIFORNIA UNIFIED CERTIFICATION PROGRAM INSTRUCTIONS FOR COMPLETING THE DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM UNIFORM CERTIFICATION APPLICATION NOTE: If you require additional space for any question in this application, please attach additional sheets or copies as needed, taking care to indicate on each attached sheet/copy the section and number of this application to which it refers. Section 1: CERTIFICATION INFORMATION A. Prior/Other Certifications Check the appropriate box indicating for which program your firm is currently certified. If you are already certified as a DBE, indicate in the appropriate box the name of the certirying agency that has previously certified your firm, and also indicate whether your firm has undergone an onsite visit. If your firm has already undergone an onsite visit/review, indicate the most recent date of that review and the state UCP that conducted the review. B. Prior/Other Applications and Privileges Indicate whether your firm or any of the persons listed has ever withdrawn an application for a DBE program or whether any have ever been denied certification, decertified, debarred, suspended, or had bidding privileges denied or restricted by ill!Y state or local agency or Federal entity. If your answer is yes, indicate the date of such action, identiry the name of the agency, and explain fully the nature of the action in the space provided. Section 2: GENERAL INFORMATION A. Contact Information (I) State the name and title of the person who will serve as your firm's primary contact under this application. (2) State the legal name of your firm, as indicated in your firm's Articles oflncorporation or charter. (3) State the primary phone number of your firm. (4) State a secondary phone number, if any. (5) State your firm's fax number, if any. (6) State your firm's or your contact person's email address. (7) State your firm's website address, if any. (8) State the street address of your firm (i.e. the physical location of its offices --not a post office box address). (9) State the mailing address of your firm, if it is different from your firm's street address. B. Business Profile (I) In the box provided, briefly describe the primary business and professional activities in which your firm engages. (2) State the Federal Tax ID number of your firm as provided on your firm's filed tax returns, if you have one. This could also be the Social Security number of the owner of your firm. (3) State the date on which your firm was officially established, as stated in your firm's Articles of Incorporation or charter. (4) State the date on which you and/or each other owner took ownership of the firm. (5) Check the appropriate box that describes the manner in which you and each other owner acquired ownership of your firm. If you checked "Other," explain in the space provided. Instructions 112 (6) Check the appropriate box that indicates whether your firn1 is "for profit." NOTE: If you checked "No," then you do NOT qualify for the DBE program and therefore do not need to complete the rest of this application. The DBE program requires all participating firms be for-profit enterprises. (7) Check the appropriate box that describes the legal form of ownership of your firm, as indicated in your firm's Articles of Incorporation. If you checked "Other," briefly explain in the space provided. (8) Check the appropriate box that indicates whether your firm has ever existed under different ownership, a different type of ownership, or a different name. If you checked "Yes," speciry which and briefly explain the circumstances in the space provided. (9) Indicate in the spaces provided how many employees your firm has, specirying the number of employees who work on a full-time and part- time basis. (I 0) Speciry the total gross receipts of your firm for each of the past three years, as declared in your firm's filed tax returns. C. Relationships with Other Businesses (I) Check the appropriate box that indicates whether your firm is co-located at any of its business locations, or whether your firm shares a telephone number(s), a post office box, any office space, a yard, warehouse, other facilities, any equipment, or any office staff with any other business, organization, or entity of any kind. If you answered "Yes," then speciry the name of the other firm(s) and briefly explain the nature of the shared facilities or other items in the space provided. (2) Check the appropriate box that indicates whether at present, or at any time in the past: (a) Your firm has been a subsidiary of any other firm; (b) Your firm consisted of a partnership in which one or more of the partners are other firms; (c) Your firm has owned any percentage of any other firm; and (d) Your firm has had any subsidiaries of its own. (3) Check the appropriate box that indicates whether any other firm has ever had an ownership interest in your firm. (4) If you answered "Yes" to any of the questions in (2)(a)-(d) or (3), identiry the name, address and type of business for each. D. Immediate Family Member Businesses Check the appropriate box that indicates whether any of your immediate family members own or manage Page 1 of 3 another company. An ·'immediate family member·• is any person who is your father, mother. husband. wife, son. daughter. brother. sister. grandmother. grandfather. grandson, granddaughter. mother-in-law, or father-in-law. If you answered ''Yes," provide the name of each relative, your relationship to them. the name of the company they own or manage, the type of business, and whether they own or manage the company. Section 3: OWNERSHIP Identify all individuals or holding companies with any ownership interest in yom· firm, providing the information requested below (if your firm has more than one owner, provide completed copies ofthis section for each additional owner): A. Background Information (I) Give the name of the owner. (2) State his/her title or position within your firm. (3) Give his/her home phone number. (4) State his/her home (street) address. (5) Check the appropriate box that indicates this owner's gender. (6) Check the appropriate box that indicates this owner's ethnicity (check all that apply). If you checked "Other," specifY this owner's ethnic group/identity not otherwise listed. (7) Check the appropriate box to indicate whether this owner is a U.S. citizen. (8) If this owner is not a U.S. citizen, check the appropriate box that indicates whether this owner is a lawfully admitted permanent resident. If this owner is neither a U.S. citizen nor a lawfully admitted pennanent resident of the U.S., then this owner is NOT eligible for certification as a DBE owner. This, however, does not necessarily disqualifY your finn altogether from the DBE program if another owner is a U.S. citizen or lawfully admitted permanent resident and meets the program's other qualifYing requirements. B. Ownership Interest (I) State the number of years during which this owner has been an owner of your fim1. (2) Indicate the dollar value of this owner's initial investment to acquire an ownership interest in your firm, broken down by cash, real estate, equipment, and/or other investment. (3) State the percentage of total ownership control of your firm that this owner possesses. (4) State the familial relationship of this owner to each other owner of your firm. (5) Indicate the number, percentage of the total, class, date acquired, and method by which this owner acquired his/her shares of stock in your firm. (6) Check the appropriate box that indicates whether this owner performs a management or supervisory function for any other business. If you checked "Yes," state the name of the other business and this owner's title or function held in that business. Instructions 113 (7) Check the appropriate box that indicates whether this owner owns or works for any other fim1(s) that has llliY relationship with your firm. If you checked '·Yes," identify the name of the other business and this owner's title or function held in that business. Briefly describe the nature of the business relationship in the space provided. C. Disadvantaged Status NOTE: You only need to complete this section fot· each owner that is applying fot· DBE qualification (i.e. for each owner who is claiming to be "socially and economically disadvantaged" and whose ownership interest is to be counted toward the control and 51% ownership requirements of the DBE program) (I) Indicate in the space provided the total Personal Net Worth (PNW) of each owner who is applying for DBE qualification. Use the PNW calculator fom1 at the end of this application to compute each owner's PNW. (2) Check the appropriate box that indicates whether any trust has ever been created for the benefit of this disadvantaged owner. If you answered "Yes," briefly explain the nature, history. purpose, and current value of the trust(s). Section 4: CONTROL A. Identify your firm's Officers and Board of Directors: (I) In the space provided, state the name, title, date of appointment, ethnicity, and gender of each officer of your firm. (2) In the space provided, state the name, title, date of appointment, ethnicity, and gender of each individual serving on your firm's Board of Directors. (3) Check the appropriate box that indicates whether any of your firm's officers and/or directors listed above perform a management or supervisory function for any other business. lf you answered "Yes," identify each person by name, his/her title, the name of the other business in which s/he is involved, and his/her function performed in that other business. (4) Check the appropriate box that indicates whether any of your firm's officers and/or directors listed above own or work for any other firm(s) that has a relationship with your firm. lf you answered ·•y es," identify the name of the firm, the officer or director, and the nature of his/her business relationship with that other firm. B. Identify your firm's management personnel (by name, title, ethnicity, and gender) who control yout· firm in the following areas: (I) Making of financial decisions on your firm's behalf, including the acquisition of lines of credit, surety bonds, supplies, etc.; (2) Estimating and bidding, including calculation of cost estimates, bid preparation and submission; (3) Negotiating and contract execution, including participation in any of your firm's negotiations and executing contracts on your firm's behalf; Page 2 of 3 (4) Hiring and/or firing of management personneL including interviewing and conducting performance evaluations; ( 5) Field/Production operations superviSIOn. including site supervision, scheduling, project management services, etc.; (6) Office management; (7) Marketing and sales; (8) Purchasing of major equipment; (9) Signing company checks (for any purpose); and (I 0) Conducting any other financial transactions on your firm's behalf not otherwise listed. (II) Check the appropriate box that indicates whether any of the persons listed in (l) through (10) above perform a management or supervisory function for any other business. If you answered "Yes," identify each person by name, his/her title, the name of the other business in which s/he is involved, and his/her function performed in that other business. (12) Check the appropriate box that indicates whether any of the persons listed in (I) through (I 0) above own or work for any other firm(s) that has a relationship with your firm. If you answered "Yes," identicy the name of the firm, the name of the person, and the nature of his/her business relationship with that other firm. C. Indicate your firm's inventory in the following categories: (1) Equipment State the type, make and model, and current dollar value of each piece of equipment held and/or used by your firm. Indicate whether each piece is either owned or leased by your firm. (2) Vehicles State the type, make and model, and current dollar value of each motor vehicle held and/or used by your firm. Indicate whether each vehicle is either owned or leased by your firm. (3) Office Space State the street address of each office space held and/or used by your firm. Indicate whether your firm owns or leases the office space and the current dollar value of that property or its lease. (4) Storage Space State the street address of each storage space held and/or used by your fim1. Indicate whether your firm owns or leases the storage space and the current dollar value of that property or its lease. D. Does your firm rely on any other firm for management functions or employee payroll? Check the appropriate box that indicates whether your firm relies on any other firm for management functions or for employee payroll. If you answered "Yes," briefly explain the nature of that reliance and the extent to which the other firm carries out such functions. E. Financial Information (I) Banking Information (a) State the name of your firm's bank. (b) Give the main phone number of your firm's bank branch. Instructions 114 (c) Give the address of your firm's bank branch. (2) Bonding Information (a) State your fim1's Binder Number. (b) State the name of your firm's bond agent and/or broker. (c) Give your agent's/broker's phone number. (d) Give your agent's/broker's address. (e) State your firm's bonding limits (in dollars), specicying both the Aggregate and Project Limits. F. Identify all sources, amounts, and purposes of money loaned to your firm, including the names of persons or firms securing the loan, if other than the listed owner: State the name and address of each source, the original dollar amount and the current balance of each loan, and the purpose for which each loan was made to your firm. G. List all contributions or transfers of assets to/from your firm and to/from any of its owners over the past two years: Indicate in the spaces provided, the type of contribution or asset that was transferred, its current dollar value, the person or firm from whom it was transferred, the person or firm to whom it was transferred, the relationship between the two persons and/or firms, and the date of the transfer. H. List current licenses/permits held by any owner or employee of your firm. List the name of each person in your firm who holds a professional license or permit, the type of permit or license, the expiration date of the permit or license, and the license/permit number and issuing State of the license or permit. I. List the three largest contracts completed by your firm in the past three years, if any. List the name of each owner or contractor for each contract, the name and location of the projects under each contract, the type of work performed on each contract, and the dollar value of each contract. J. List the three largest active jobs on which your firm is currently working. For each active job listed, state the name of the prime contractor and the project number, the location, the type of work performed, the project start date, the anticipated completion date, and the dollar value of the contract. AFFJDA VIT & SIGNATURE Carefully read the attached affidavit in its entirety. Fill in the required information for each blank space, and sign and date the afiidavit in the presence of a Notary Public, who must then notarize the form. Page 3of 3 DISADVANTAGED BUSINESS ENTERPRISE PROGRAM 49 C.F.R. PART 26 UNIFORM CERTIFICATION APPLICATION ROADMAP FOR APPLICANTS CD Should I apply? o Is your firm at least 51 %-owned by a socially and economically disadvantaged individual(s) who also controls the firm? o Is the disadvantaged owner a U.S. citizen or lawfully admitted permanent resident of the U.S.? o Does the disadvantaged owner's Personal Net Worth not exceed $1.32 million (excluding the individual's ownership interest in the applicant firm and the equity in his/her primary residence)? o Is your firm a small business that meets the Small Business Administration's (SBA's) size standard and does not exceed $22.41 million in gross annual receipts? o Is your firm organized as a for-profit business? => If you answered "Yes" to all of the questions above, you may be eligible to participate in the U.S. DOT DBE program. ~ Be sure to attach all of the required documents listed in the Documents Check List at the end of this form with your completed application. G) Where can I find more information? o U.S. DOT-http://osdbuweb.dot.gov/DBEProgram/index.cfm (this site provides useful links to the rules and regulations governing the DBE program, questions and answers, and other pertinent information) o SBA-http://www.sba.gov/services/contractingopportunities/sizestandardstopics/index.html (provides listing ofNAICS codes and Table of size standards) o 49 CFR Part 26 (the rules and regulations governing the DBE program) Updated 5/11/2011 Under Sec. 26.107 of 49 CFR Part 26, dated February 2, 1999, if at any time, the Department or a recipient has reason to believe that any person or firm has willfully and knowingly provided incorrect information or made false statements, the Department may initiate suspension or debarment proceedings against the person or firm under 49 CFR Part 29, take enforcement action under 49 CFR Part 3I, Program Fraud and Civil Remedies, and/or refer the matter to the Department of Justice for criminal prosecution under I8 U.S.C. I OOI, which prohibits false statements in Federal programs. Page I of8 Uniform Certification Application 115 Section 1: CERTIFICATION INFORMATION A. Prior/Other Certifications Is your firm currently certified for 0 DBE Name of certifying agency: any of the following programs? (If Yes, check appropriate box(es)) Has your firm's state UCP conducted an on-site visit? 0 Yes, on I State: ONo B. Prior/Other A lications and Privile es ---------- nnel, ever Has your firm (under any name) or any of its owners, Board of Directors, officers or management perso withdrawn an application for any of the programs listed above, or ever been denied certification, decerti debarred or suspended or otherwise had bidding privileges denied or restricted by any state or local agen fied,or cy,or Federal entity? 0 Yes, on _1_1_ 0 No If Yes, identify State and name of state, local, or Federal agency and explain the nature of the action: Section 2: GENERAL INFORMATION A. Contact Information ( 1) Contact person and Title: (2) Legal name of firm: (3) Phone#: (4) Other Phone#: (5) Fax#: (6) E-mail: (7) Website (ifhave one): (8) Street address of firm (No P.O. Box): City: County/Parish: State: z ip: (9) Mailing address of firm (if different): City: County/Parish: State: z ip: B. Business Profile (1) Describe the primary activities of your firm: (2) Federal Tax lD (if an y): (3 This firm was established on I I IIWe have owned this firm since: I (5) Method of acquisition (check all that apply): 0 Started new business 0 Bought existing business 0 Inherited business 0 Secured con cession 0 Mer er or consolidation 0 Other (ex lain) (6) Is your firm "for profit"? 0 Yes 0 No ®STOP! If your firm is NOT for-profit, then you doN OT qualify tion. for this ro ram and do NOT need to fill out this a lica Page 2 of8 Uniform Certificatio n Application 116 - (7) Type of firm (check all that app(v): 0 Sole Proprietorship 0 Partnership 0 Corporation 0 Limited Liability Partnership 0 Limited Liability Corporation 0 Joint Venture 0 Other, Describe: (8) Has your firm ever existed under different ownership, a different type of ownership, or a different name? 0 Yes 0 No IfYes, explain: (9) Number of employees: Full-time Pa1t-time Total --------~~~~------------~~----~----------------~ (I 0) Specify the gross receipts of the firm for the last 3 years: Year _____ Total receipts$ ______ _ Year Total receipts $ ______ _ Year Total receipts$ C. Relationships with Other Businesses ~~=------------------------------------------~----. (I) Is your firm co-located at any of its business locations, or does it share a telephone number, P.O. Box, office space, yard, warehouse, facilities, equipment, or office staff, with any other business, organization, or entity? 0 Yes ONo IfYes, identify: OtherFirm'sname: ___________________ _ Explain nature of shared facilities: (2) At present, or at any time in the past, has your firm: 1---'(a) been a subsidia of any other firm? 0 Yes 0 No (b) consisted of a partnership in which one or more of the partners are other firms? 0 Yes 0 No 1--' (c) owned an 0 Yes 0 No I--' ( 0~0~ r-------------------------~ (3)Has any other firm had an ownershi 0 Yes 0 No (4) Ifyou answered "Yes" to any ofthe extra sheets, if needed): Name I. 2. 3. Address Type of Business D. Immediate Family Member Businesses --~~--------------------------. Do any of your immediate family members own or manage another company? 0 Yes 0 No If Yes, then list (attach extra sheets, if needed): Name Relationship Company Type of Business Own or Manage? I. 2. Page 3 of8 Uniform Certification Application 117 Section 3: OWNERSHIP Identify all individuals or holding companies with any ownership interest in your firm, providing the information requested below (if more than one owner, attach separate sheets for each additional owner): A B k ac "groun d I ~ n ormatiOn (l)Name: (2) Title: (3) Home Phone#: (4) Home Address (street and number): City: State: Zip: (5) Gender: 0 Male 0 Female (6) Ethnic group membership (Check all that apply): (7) U.S. Citizen: 0 Yes ONo 0 Black 0 Hispanic 0 Native American (8) Lawfully Admitted Permanent Resident: 0 Asian Pacific 0 Subcontinent Asian 0 Yes ONo 0 Other (specify) B 0 h" I t wners 1p n eres t (1) Number of years as owner: (2) Initial investment to Im< Dollar Value (3) Percentage owned: acquire ownership Cash $ (4) Familial relationship to other owners: interest in firm: Real Estate $ Equipment $ Other $ ( 5) Shares of Stock: Number Percentage Class Date acguired Method Acguired (6) Does this owner perform a management or supervisory function for any other business? DYes ONo If Yes, identifY: Name ofBusiness: Function/Title: (7) Does this owner own or work for any other firm(s) that has a relationship with this firm (e.g., ownership interest, shared office space, financial investments, equipment, leases, personnel sharing, etc.)? 0 Yes 0 No If Yes, identifY: Name of Business: Functionffitle: Nature of Business Relationship: C. Disadvantaged Status-NOTE: Complete this section only for each owner applying for DBE qualification (i.e. for each owner claiming to be socially and economically disadvantaged) (1) What is the Personal Net Worth (PNW) of the owner(s) applying for DBE qualification? (Use and attach the Personal Financial Statement form at the end of this application; attach additional sheets if more than one owner is applying) (2) Has any trust been created for the benefit of this disadvantaged owner(s)? 0 Yes 0 No If Yes, explain (attach additional sheets if needed): Page 4 of& Uniform Certification Application 118 Section 4: CONTROL A. Identify your firm's Officers & Board of Directors (If additional space is re~ uired, attach a separate sheet): Name Title Date Appointed Ethnicity Gender (1) (a) (b) Officers (c) of the (d) (e) Company (2) Board of (a) Directors (b) (c) (d) (e) (3) Do any of the persons listed in (I) and/or (2) above perform a management or supervisory function for any other business? 0 Yes 0 No IfYes, identify for each: Person: Title: ____________ _ Business: Function: (4) Do any of the persons listed (I) and/or (2) above own or work for any other firm(s) that has a relationship with this firm (e.g., ownership interest, shared office space, financial investments, equipment, leases, personnel sharing, etc.)? 0 Yes 0 No If Yes, identify for each: Firm Name: _____________ Person: ___________ _ Nature of Business Relationship: B. Identify your firm's management personnel who control your firm in the following areas (If more than llvo persons attach a separate sheet): Name Title Ethnicity Gender (I) Financial Decisions a. (responsibility for acquisition of lines of b. credit, surety bondin~, supplies, etc.) (2) Estimating and bidding a. b. (3) Negotiating and Contract a. Execution b. (4) Hiring/firing of management a. personnel b. (5) Field/Production Operations a. Supervisor b. (6) Office management a. b. (7) Marketing/Sales a. b. Page 5 of8 Uniform Certification Application 119 (8) Purchasing of major a. equipment b. (9) Authorized to Sign Company a. Checks (for any purpose) b. (I 0) Authorized to make a. Financial Transactions b. (II) Do any of the persons I isted in (I) through ( 1 0) above perform a management or supervisory function for any other business? 0 Yes 0 No If Yes, identify for each: Person: Title: Business: Function: (12) Do any of the persons listed in (I) through (1 0) above own or work for any other firm(s) that has a relationship with this firm (e.g.. ownership interest, shared office space, financial investments, equipment, leases, personnel sharing, etc.)? 0 Yes ONo IfYes, identify for each: Firm Name: Person: Nature of Business Relationship: C. Indicate your firm's inventory in the following categories (attach additional sheets if needed): (1) Equipment Type of Equipment Make/Model Current Value Owned or Leased? (a) (b) (c) (2) Vehicles Type of Vehicle Make/Model Current Value Owned or Leased? (a) (b) (c) (3) Office Space Street Address Owned or Leased? Current Value of Property or Lease (a) (b) (4) Storage Space Street Address Owned or Leased? Current Value of Property or Lease (a) (b) D. Does your firm rely on any other firm for management functions or employee payroll? 0 Yes 0 No I If Yes, explain: Page 6 of8 Uniform Certification Application 120 E. Financiallnformation (I) Banking Information: (a) Name of bank: _____________ _ (b) Phone No: ( ) _________ _ (c Address ofbank: Ci : State: Zi (2) Bonding Information: If you have bonding capacity, identify: (a) Binder No: __________ _ (b) Name of agent/broker______________ (c) Phone No: ( (d) Address of agent/broker: City: -----,---State: __ Zip: __ _ (e) Bondin limit: A re ate limit $ Pro·ect limit $ F. Identify all sources, amounts, and purposes of money loaned to your firm, including the names of any ersons or firms securin the loan, if other than the listed owner: Name of Source Address of Source Name of Person Original Current Balance Purpose of Loan Securin the Loan Amount 1. 2. 3. G. List all contributions or transfers of assets to/from your firm and to/from any of its owners over the past two years attach additional sheets i neede : Contribution/Asset Dollar Value From Transferred 1. 2. 3. To Whom Transferred Relationship Date of Transfer H. List current licenses/permits held by any owner and/or employee of your firm (e.g. contractor, en ineer, architect, etc. (attach additional sheets i needed: N arne of License/Permit Holder Type of License/Permit 1. 2. 3. I. List the three Jar 1. 2. ,., .). Name of Owner/Contractor Name/Location of Pro·ect Page 7 of8 121 Expiration Date License Number and State Dollar Value of Contract Uniform Certification Application '--------------------------------------------------- J L' h h 1st t e t ree argest active _jobs on which your firm is currently workin_g_: Name of Prime Location of Type of Work Project Anticipated Dollar Contractor and Project Project Start Date Completion Value of Number Date Contract 1. 2. ,., .), Page 8 of8 Uniform Certification Application 122 DBE UNIFORM CERTIFICATION APPLICATION SUPPORTING DOCUMENTS CHECKLIST In order to complete your application fot· DBE certification, you must attach copies of all of the following documents as thev a I · to \'OU and your firm. All Applicants 0 Work experience resumes (that include places of ownership/employment with corresponding dates), for all owners and officers of your firm 0 Personal Financial Statement (form available with this application) 0 Personal tax returns for the past three years, if applicable, for each owner claiming disadvantaged status 0 Your firm's tax returns (gross receipts) and all related schedules for the past three years 0 Documented proof of contributions used to acquire ownership for each owner (e.g. both sides of cancelled checks) 0 Your firm's signed loan agreements, security agreements, and bonding forms 0 Descriptions of all real estate (including office/storage space, etc.) owned/leased by your firm and documented proof of ownership/signed leases 0 List of equipment leased and signed lease agreements 0 List of construction equipment and/or vehicles owned and titles/proof of ownership 0 Documented proof of any transfers of assets to/from your firm and/or to/from any of its owners over the past two years 0 Year-end balance sheets and income statements for the past three years (or life of firm, if less than three years); a new business must provide a current balance sheet 0 All relevant licenses, license renewal forms, permits, and haul authority forms 0 DBE certifications, denials, and/or decertifications, if applicable 0 Bank authorization and signatory cards 0 Schedule of salaries (or other compensation or remuneration) paid to all officers, managers, owners, and/or directors of the firm 0 Trust agreements held by any owner claiming disadvantaged status, if any Partnership or Joint Venture 0 Original and any amended Pm1nership or Joint Venture Agreements Corporation or LLC 0 Official Articles oflncorporation (signed by the state official) 0 Both sides of all corporate stock certificates and your firm's stock transfer ledger 0 Shareholders' Agreement 0 Minutes of all stockholders and board of directors meetings 0 Corporate by-laws and any amendments 0 Corporate bank resolution and bank signature cards 0 Official Cet1ificate of Formation and Operating Agreement with any amendments (for LLCs) Trucking Company 0 Documented proof of ownership of the company 0 Insurance agreements for each truck owned or operated by your firm 0 Title(s) and registration certificate(s) for each truck owned or operated by your firm 0 List of U.S. DOT numbers for each truck owned or operated by your firm Regular Dealer 0 Proof of warehouse ownership or lease 0 List of product lines carried 0 List of distribution equipment owned and/or leased NOTE: The specific state UCP to which you are applying may have additional required documents that you must also supply with your application. Contact the appropriate certifying agency to which you are applying to find out if more is required. (See Supplemental Document Checklist) 123 CALIFORNIA UNIFIED CERTIFICATION PROGRAM (CUCP) Supplemental Document Checklist Firm Name: --------------------------------------------------------------- In order to complete your application for DBE certification, you must also attach copies of all of the following documents: D Documentation of Group Membership. Please comply with one of the following: (I) For each owner seeking social disadvantaged status on the basis of Ethnic membership, please provide a document (e.g., birth certificate, U.S. Passport, Green Card, parents' birth certificate, etc.) evidencing Ethnic heritage or similar document evidencing Ethnic community affiliation. (2) For each owner seeking social disadvantaged status on the basis of Gender, please provide a document evidencing gender (e.g., birth certificate, driver's license, etc.). (3) For each owner seeking an individual showing of social disadvantage, please provide documents you deem appropriate for consideration. D Documentation of U.S. citizenship or lawful permanent residence, e.g., U.S. birth certificate, Green Card, etc. Supplemental Questionnaire I. Is the firm's principal place of business in California? Yes_O_ NoD If no, please include a copy of the firm's DBE certificate issued in its home state. (The CUCP will not process a new application for DBE certification from a firm having its principal place of business in another state unless the firm has already been certified in that state.) 2. Is the firm authorized to do business in the State of California? Yes_[]_ No D 3. List all office locations in California: _____________________________________________________ _ 4. Has the firm ever done business with any U.S. DOT Grantees of California? Yes_[]_ No D If yes, please indicate the agency name(s) and latest year(s): Agency Agency Latest Year 5. Is there an upcoming project in which the firm is interested and therefore, would need to be certified prior to a specific date in order to be counted toward DBE participation? Yes D No 0 If yes, please provide the following information: Agency letting contract: _______________________________________________________________ __ Contract Number Bid Opening date or and Name: ________________________________ Request for Proposal due date: _______________ _ 6. Indicate areas where you prefer to do your work. 0 01 Alameda 0 II Glenn 0 21 Marin 0 31 Placer 0 41 San Mateo 0 51 Sutter 0 02 Alpine 0 12 Humboldt 0 22 Mariposa 0 32 Plumas 0 42 Santa Barbara 0 52 Tehama 0 03 Amador 0 13 Imperial 0 23 Mendocino 0 33 Riverside 0 43 Santa Clara 0 53 Trinity 0 04 Butte 0 14 Inyo 0 24 Merced 0 34 Sacramento 0 44 Santa Cruz 0 54 Tulare 0 05 Calaveras 0 15 Kern 0 25 Modoc 0 35 San Benito 0 45 Shasta 0 55 Tuolumne 0 06 Colusa 0 16 Kings 0 26 Mono 0 36 San Bernardino 0 46 Sierra 0 56 Ventura 0 07 Contra Costa 0 17 Lake 0 27 Monterey 0 37 San Diego 0 47 Siskiyou 0 57 Yolo 0 08 Del Norte 0 18 Lassen 0 28 Napa 0 38 San Francisco 0 48 Solano 0 58 Yuba 0 09 El Dorado 0 19 Los Angeles 0 29 Nevada 0 39 San Joaquin 0 49 Sonoma 0 I 0 Fresno 0 20 Madera 0 30 Orange 0 40 San Luis Obispo 0 50 Stanislaus 124 (Rev 2120/l) AFFIDAVIT OF CERTIFICATION This form must be signed and notarized for each owner upon which disadvantaged status is relied. A MATERIAL OR FALSE STATEMENT OR OMISSION MADE IN CONNECTION WITH THIS APPLICATION IS SUFFICIENT CAUSE FOR DENIAL OF CERTIFICATION, REVOCATION OF A PRIOR APPROVAL, INITIATION OF SUSPENSION OR DEBARMENT PROCEEDINGS, AND MAY SUBJECT THE PERSON AND/OR ENTITY MAKING THE FALSE STATEMENT TO ANY AND ALL CIVIL AND CRIMINAL PENALTIES AVAILABLE PURSUANT TO APPLICABLE FEDERAL AND STATE LAW. ____________ (full name printed), swear or affirm under penalty of law that I am ________ (title) of applicant firm (firm name) and that I have read and understood all of the questions in this application and that all of the foregoing information and statements submitted in this application and its attachments and supporting documents are true and correct to the best of my knowledge, and that all responses to the questions are full and complete, omitting no material information. The responses include all material information necessary to fully and accurately identity and explain the operations, capabilities and pertinent history of the named firm as well as the ownership, control, and affiliations thereof. I recognize that the information submitted in this application is for the purpose of inducing certification approval by a government agency. I understand that a government agency may, by means it deems appropriate, determine the accuracy and truth of the statements in the application, and I authorize such agency to contact any entity named in the application, and the named firm's bonding companies, banking institutions, credit agencies, contractors, clients, and other certifYing agencies for the purpose of verifYing the inforn1ation supplied and determining the named firm's eligibility. I agree to submit to government audit, examination and review of books, records, documents and files, in whatever form they exist, ofthe named firm and its affiliates, inspection of its places(s) of business and equipment, and to permit interviews of its principals, agents, and employees. I understand that refusal to permit such inquiries shall be grounds for denial of certification. If awarded a contract or subcontract, I agree to promptly and directly provide the prime contractor, if any, and the Depmtment, recipient agency, or federal funding agency on an ongoing basis, current, complete and accurate information regarding (I) work performed on the project; (2) payments; and (3) proposed changes, if any, to the foregoing arrangements. I agree to provide written notice to the recipient agency or Unified Certification Program (UCP) of any material change in the information contained in the original application within 30 calendar days of such change (e.g., ownership, address, telephone number, etc.). I acknowledge and agree that any misrepresentations in this application or in records pertaining to a contract or subcontract will be grounds for terminating any contract or subcontract which may be awarded; denial or revocation of ce11ification; suspension and debarment; and for initiating action under federal and/or state law concerning false statement, fraud or other applicable offenses. I certify that I am a socially and economically disadvantaged individual who is an owner of the above-referenced firm seeking certification as a Disadvantaged Business Enterprise (DBE). In support of my application, I certify that I am a member of one or more of the following groups, and that I have held myself out as a member of the group(s) (check all that apply): Female Hispanic American Native American Other (specify) 0 0 0 0 Black American Asian-Pacific American Subcontinent Asian American Affidavit Page 1 of2 125 0 0 0 (Rev. 2/28/2011) I certifY that I am socially disadvantaged because I have been subjected to racial or ethnic prejudice or cultural bias, or have suffered the effects of discrimination, because of my identity as a member of one or more of the groups identified above, without regard to my individual qualities. I further certifY that my personal net worth does not exceed $1,320,000, and that I am economically disadvantaged because my ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially and economically disadvantaged. I declare under penalty of perjury that the information provided in this application and supporting documents is true and correct. Executed on _____________ (Date) Signature _____________ _ (DBE Applicant) NOTARY CERTIFICATE Affidavit Page 2 of2 126 DISADVANTAGED BUSINESS ENTERPRISE (DBE) and AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE (ACDBE) /T ~ \ PERSONAL FINANCIAL STATEMENT i :'\lf·l~:nO:R'flHC\TIO:"o PK()(;i{\ \I \ As of ' Complete this form for each individual whose ownership and control are relied upon for DBE or A CD BE certification. Name(s) Are these figures for a married couple0 Yes Uo_ u Residence Address: Residence Phone: City, State, & Zip Code: Business Name of Applicant: Business Phone: ASSETS (Omit Cents) LIABILITIES (Omit Cents) Cash on hand & in Banks $ Accounts Payable .. .......... $ Savings/Other Cash Accounts ................................ $ Notes Payable to Banks and Others .. .. $ IRA or Other Retirement Accounts .......................... $ (Describe in Section 2) Accounts & Notes Receivable .................................. $ Installment Account (Auto) ................................. $ Life Insurance-Cash Surrender Value Only ............. $ Installment Account (Other) . ........................... $ (Complete Section 7) Stocks and Bonds ...................................................... $ Loan on Life Insurance $ Mortgages on Real Estate .. ........... $ Real Estate ···························· . ... .. $ (Describe in Section 3) (Describe in Section 3) Unpaid Taxes . . ... $ Automobile-Present Value ....................................... $ (Describe in Section 5) Other Personal Property .......................................... $ Other Liabilities . ............................ $ (Describe in Section 6) (Describe in Section 4) Total.. $ 0 Other Assets. .................. $ (Describe in Section 4) Net Worth ·············································· $ Total ..................................... $ 0 (Subtract total Liabilities from Total Assets) Contingent Liabilities (will not be used in determining net worth) As Endorser or Co-Maker ........................................ $ Legal Claims & Judgments .. ......... $ Provision for Federal Income Tax .. . $ Other Special Debt ... . $ Section 1. Separate Property (for married applicants only) Describe all separate property held by you or your spouse, their cun·ent values, and why they are separate. Section 2. Notes Payable to Banks and Others. (Use attachments tf necessary. Each attachment must be identified as a part of this statement and signed.) Name and Address of Note holder(s) Original Current Payment Frequency How Secured or Endorsed Balance Balance Amount (monthly, etc.) Type of Collateral CUCP PNW Form Rev 2/28/2011 127 Section 3. Real Estate Owned. (List each parcel separately. Identify primary Residence. Use attachment if necessary. Each attachment must be identified as a part of this statement and signed.) Prope1ty A Property B Property C Type of Property (e.g. residential, condo, timeshare, commercial, etc ) Address (include street, city and state) Date Purchased Original Cost Present Market Value Name & Address of Mortgage Holder Mortgage Balance Amount of Payment per MonthNear Status of Mortgage Section 4. Other Personal Property and Other Assets. (Describe, and if any is pledged as security, state name and address of lien holder, amount of lien, terms of payment and if delinquent, describe delinquency) Section 5. Unpaid Taxes. (Describe in detail, as to type, to whom payable, when due, amount, and to what property, if any, a tax lien attaches.) Section 6. Other Liabilities. (Describe in detail.) Section 7. Life Insurance Held. (Give face amount and cash surrender value of policies-name of insurance company and beneficiaries) I certify the above and the statements contained in the attach ments are true and accurate as ofth e stated date(s). These statements are made for the purpose of becoming eligible for the Disadvantaged Business Enterprise or Airport Concession Disadvantaged Business Enterprise Programs. I authorize the CUCP to make inquiries as necessary to verify the accuracy of the statements made and to determine my creditworthiness. Signature: Date: Signature: Date: CUCP PNW Form Rev 2/28/2011 128 Instructions to Assist in Completing the Personal Financial Statement for the California Unified Certification Program Please do not make adjustments to your figures pursuant to U.S. Department of Transportation (U.S. DOT) regulations 49 CFR Part 26 and Part 23. The agency that you apply to will use the infmmation provided on your completed Personal Financial Statement to determine your Personal Net Worth according to 49 CFR Part 26 and Pa1i 23. An individual's Personal Net Worth, according to 49 CFR Part 26 and Part 23 includes only his or her own sh are of assets held separately, jointly, or as community property with the individual's spouse and excludes the following: • Individual's ownership interest in the applicant firm: • Individual's equity in his or her primary residence; • Tax and interest penalties that would accrue i fretirem ent savings or investments (e.g., pens ion plans, Individual Retirement Accounts, 40 I (k) accounts, etc.) were distributed at the present time. For Airport Concessions Only: • Other assets for which the individual is currently liable, which are properly documented and for which the individual's personal assets are encumbered to support existing financing for the ACDBE Business, to a maximum of$3 million. Personal Net Wmth limit for DBE certification in accordance with 49 CFR Part 26 If your Personal Net Worth, according to 49 CFR Pmt 26, exceeds the $1.32 million cap and you, individually, or you and other individuals are the majority owners of an applicant firm, the firm is not eligible for DBE certification. If the Personal Net Worth according to 49 CFR Part 26 of the majority ovmer(s) exceeds the $1.32 million cap at any time after your fi1m is ce1tified, the firm is no longer eligible for ce1tification. Should that occur, it is your responsibility to contact your certifYing agency in writing to advise that your firm no longer qualifies. Personal Net Wmth limit for ACDBE certification in accordance with 49 CFR Part 23 If your Personal Net Worth, according to 49 CFR Part 23, exceeds the $750,000 cap and you, individually, or you and other individuals are the majority owners of an applicant firm, the fi1m is not eligible for A CD BE certification. If the Personal Net Worth according to 49 CFR Part 23 of the majority owner(s) exceeds the $750,000 cap at any time after your firm is certified, the firm is no longer eligible for certification. Should that occur, it is your responsibility to contact your certifYing agency in writing to advise that your firm no longer qualifies. General Instructions :;. You must fill out all line items on the Personal Financial Statement to the best ofyour ability. :;. If necessary, use additional sheet(s) of paper to report all information and details. :;. If you have any questions about completing this f01m, please contact one of the certifYing agencies on the Roster of CertifYing Agencies. Specific Instructions DATE AND CONTACT INFORMATION Be sure to include the date in the upper right comer of the first page and your contact infmmation. Indicate whether the figures reported are for a married couple. ASSETS All assets must be reported at their current fair market values as of the date of your statement. Assessor's assessed value for real estate, for example, is not acceptable. Assets held in a trust generally should be included. Cash on hand & in Banks: Enter the total amount of cash on-hand and in bank accounts other than savings. Savings Accounts: Enter the total amount in all savings accounts. IRA 01· other Retirement Account: Enter the total present value of all JRAs and other retirement accounts, including m1y defe1red compensation and pension plans. Accounts & Notes Receivable: Enter the total value of all monies owed to you personally, if any. This should include shareholder loans to the applicant firm. if any. Life Insurance-Cash Surrender Value Only: Enter the value of any life insurance polices. This aJllount should be cash surrender value only, not the amount a beneficiary would receive upon your death, also known as face value. A complete description is required in Section 7. Stocks and Bonds: Enter the current market value of your stocks and bonds. Real Estate: Enter the current fair market value of all real estate owned. A complete listing and description of all real estate owned is required in Section 3. Automobile-Present Value: Enter the cmrent fair market value of all automobiles owned. Other Personal Property: Enter the current fair market value of all other personal property owned, but not included in the previous entries. A complete description of these assets is required in Section 4. Other Assets: Enter the current fair market value of all other assets owned, but not included in the previous entries. A complete description of these assets is required in Section 4. LIABILITIES Accounts Payable: Enter the total value of all unpaid accounts payable that is your responsibility. Notes Payable to Bank and Others: Enter the total amount due on all notes payable to banks and others. This should not, however, include any mortgage balances. A complete description of all notes payable to banks and others is required in Section 2. Installment Account (Auto): Enter amount of the present balance of the debt that you owe for auto installment account. Rev 2128/2011 129 Installment Account (Other): Enter amount of the present balance of the debt that you owe for other installment account. Loans on Life Insurance: Enter the total value of all loans due on life insurance policies. Mo11gages on Real Estate: Enter the total balance on all mortgages payable on real estate. A complete breakdown of all mortgages on real estate is required in Section 3. Unpaid Taxes: Enter the total amount of all taxes that are cmTently due, but are unpaid. Contingent tax liabilities or anticipated taxes for CUJTent year should not be included. A complete description is required in Section 5. Other Liabilities: Enter the total value due on all other liabilities not classified in the previous entries. A complete description is required in Section 6. Net Worth: To compute Net Worth, add all liabilities and put that figure in the Total Liabilities line. Then subtract Total Liabilities from Total Assets to get your Net Worth. To check your figures, add Total Liabilities and Net Worth and the sum must equal Total Assets. If your figures do not match, your form will be returned to you to coJTect and complete again. CONTINGENT LIABILITIES Contingent liabilities are liabilities that belong to you only if an event(s) should occur. For example, if you have co-signed on a relative's loan, but you are not responsible for the debt until your relative defaults, that is a contingent liability. Contingent liabilities do not count toward your net worth until they become actual liabilities. As Endorser or Co-Maker: Enter the total potential liabilities due as a result of being a co-signer for a loan or other commitments. Legal Claims and Judgments: Enter the potential liabilities due as a result of legal claims from judgments, lawsuits. etc. Provisions for Federal Income Tax: Enter the total amount of all federal taxes for which you are potentially liable due to an anticipated gain on the pending sale of an asset or other circumstances, such as pending disputes or litigation which could possibly result in a personal tax liability. Other Special Debt: Enter the total amount due on all remaining potential debts not accounted for. SECTION 1. SEPARATE PROPERTY Identify all property that is not held jointly or as community property, include values, ownership. and a brief explanation why the property is not held jointly. SECTION 2. NOTES PAYABLE TO BANKS AND OTHERS Enter the name and address of note holder(s), original balance, cuJTent balance, payment amount, frequency, and how secured for each note payable as entered in the "Liabilities" column. Do not include loans for your business or mortgages for your properties. SECTION 3. REAL ESTATE OWNED Starting with your primary residence (be sure to identify it as your primary residence}, enter the type of property, address, date of purchase, original cost, present fair market value, name and address of mortgage holder, mortgage account number, mortgage balance, amount of payment, and status of mortgage for all real estate held. Please ensure that this section contains all real estate owned, including rental properties, vacation properties, commercial properties, etc. Total "Present Market Value" amounts should coJTespond with the ''Real Estate" amount listed in the "Assets" column. Additionally, total "Mortgage Balance" amounts should correspond with the "Mortgages on Real Estate" amount listed in the "Liabilities" column. Attach additional sheets if needed. SECTION 4. OTHER PERSONAL PROPERTY AND OTHER ASSETS Itemize and describe in detail other personal property and other assets owned as listed in the "Assets'' column. For other personal property, include boats, trailers, jewelry, furniture, household goods, collectibles, clothing, etc. For other assets, include equity interest in other businesses, trusts, investments, etc. SECTION 5. UNPAID TAXES Describe in detail as to the type, to whom payable, when due, amount, and to what property, if any, the tax lien attaches. Please refer to the unpaid taxes listed in the "Liabilities" column. If none, state "NONE." This section should not include the contingent tax liabilities or anticipated taxes owed for the cuJTent year. For any unusually large amounts. you must include documentation, such as tax liens, to support the amounts. SECTION 6. OTHER LIABILITIES Describe in detail any other liabilities as referenced by the value listed in the "Liabilities" column. If none, state "NONE." For any unusually large amounts, you must include documentation, such as bills, to support the amounts. SECTION 7. LIFE INSURANCE HELD Describe all life insurance policies held. Please be sure to include the face amount of the policies, name of insurance company and beneficiaries and cash suJTender values of the policies. EXECUTION OF STATEMENT Be sure to sign and date at the end of the statement. Rev 2/28/2011 130 CALIFORNIA UNIFIED CERTIFICATION PROGRAM (CUCP) NAICS Codes The California Unified Certification Program adopted the 2002 North American Industry Classification System (NAICS), an updated federal classification system, on October 27, 2003. Please indicate below areas of expertise that you perform in order of importance. Enclosed is a partial list ofNAICS codes for your convenience. For a full list ofNAICS codes and assistance in locating appropriate NAICS codes and determining if your firm meets U.S. Small Business Administration (SBA) and U.S. DOT size standards, a search tool is available on the SBA web site at: http://www.sba.gov/size/indextableofsize.html. DBE applicants are first subject to the applicable small business size standards of the Small Business Administration (SBA). Second, the average annual gross receipts for the firm (including its affiliates) over the previous three fiscal years must not exceed the U.S. Department of Transportation's cap of$22.41 million, as amended pursuant to SAFETEA-LU. Please note that size standards are subject to change at any time by the SBA. If you do not have Internet access or need assistance, please contact one of the certifYing agencies on the enclosed Roster. N AI C S"---------=C~od=e Description ofWork/Service Rev 2/28/2011 131 110000 111000 112000 113000 114000 115000 210000 211000 212000 213000 220000 221110 221120 221310 230000 236000 236115 236116 236117 236118 236210 236220 237000 237110 237120 237130 237210 237310 237990 237990 238000 238110 238120 238130 238140 238150 238160 238170 238190 238210 238220 238290 238310 238320 238330 238340 238350 238390 238910 238990 238990 CALIFORNIA UNIFIED CERTIFICATION PROGRAM List of NA/CS Codes (partial) Agriculture, Forestry, Fishing and Hunting Crop Production Animal Production Forestry and Logging Fishing, Hunting and Trapping Support Activities for Agriculture and Forestry Mining Oil and Gas Extraction Mining (except Oil and Gas) Support Activities for Mining Utilities Hydroelectric, Fossil Fuel, Nuclear and Other Electric Power Generation Electric Power Transmission, Control and Distribution Water Supply and Irrigation Systems Construction* Construction of Buildings New Single-Family Housing Construction (except Operative Builders) ~ . . New Multifamily Housing Construction (except Operative Builders) New Housing Operative ~Builders Residential Remodelers Industrial Building Construction Commercial and Institutional Building Construction Heavy and Civil Engineering Construction Water and Sewer Line and Related Structures Construction Oil and Gas Pipeline and Related Structures Construction Power and Communication Line and Related Structures Construction Land Subdivision Highway, Street, and Bridge Construction Other Heavy and Civil Engineering Construction Dredging and Surface Cleanup Activities Specialty Trade Contractors Poured Concrete Foundation and Structure Contractors Structural Steel and Precast Concrete Contractors Framing Contractors Masonry Contractors Glass and Glazing Contractors Roofing Contractors Siding Contractors Other Foundation, Structure, and Building Exterior Contractors Electrical Contractors Plumbing, Heating, and Air-Conditioning Contractors Other Building Equipment Contractors Drywall and Insulation Contractors Painting and Wall Covering Contractors Flooring Contractors Tile and Terrazzo Contractors Finish Carpentry Contractors Other Building Finishing Contractors Site Preparation Contractors All Other Specialty Trade Contractors Building and Property Specialty Trade Services 310000 339999 311000 312000 313000 314000 315000 315211 315212 315220 315230 315299 315999 316000 316211 316213 316214 316219 321000 322000 323000 323110 323111 323112 323113 323114 323115 323116 323117 323118 323119 323121 323122 324000 324121 324122 325000 326000 326211 326212 326220 326291 326299 327000 331000 332000 332116 332322 332323 332710 332721 332996 333000 333120 333311 333313 Manufacturing Food Manufacturing Beverage and Tobacco Product Manufacturing Textile Mills Textile Product Mills Apparel Manufacturing Men's and Boys' Cut and Sew Apparel Contractors Women's, Girls', and Infants' Cut and Sew Apparel Contractors Men's and Boys' Cut and Sew Apparel Manufacturing Women's and Girls' Cut and Sew Apparel. Manufacturing All Other Cut and Sew Apparel Manufacturing Other Apparel Accessories and Other Apparel Manufacturing Leather and Allied Product Manufacturing Rubber and Plastics Footwear Manufacturing Men's Footwear (exceptAth.letic) Mall!Jf1)cturing Women's Footwear (except Athletic) r.Jianufacturing Other Footwear Manufacturing vyood product Manufacturing paper Manufacturing Printing and Related Support Activities Comm.ercial Lithographic Printing Commercial Gravure Printing Commercial Flexographic Printing Commercial Screen Printing Quick Printing Digital Printing ManifoldBusiness Forms Printing Books Printing Blankb()Ok, Loose-leaf Binder. and [)evice Manufacturing Other Commercial Printing Tradebinding and Related Work Prepress Services Petroleum and Coal Products Manufacturing Asphalt Paving Mixture and Block Manufacturing . Asphalt Shingle and Coating Materials Manufacturing Chemical Manufacturing Plastics and Rubber Products Manufacturing Tire Manufacturing (except Retreading) Tire Retreading Rubber and Plastics Hoses and Belting Manufacturing Rubber Product Manufacturing for Mechanical Use All Other Rubber Product Manufacturing Nonmetallic Mineral Product Manufacturing PrimaryMetal Manufacturing Fabricated Metal Product Manufacturing Metal Stamping Sheet Metal Work Manufacturing Ornamental and Architectural Metal Work Manufacturing Machine Shops Precision Turned Product Manufacturing Fabricated Pipe and Pipe Fitting Manufacturing Machinery Manufacturing C()n..S!ruction Machinery fv1an!Jfacturing Automatic Vending Machine Manufacturing Office Machinery Manufacturing *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. (Rev. 8/106) (This document contains a partial list of NAICS codes. For a complete list of NAICS codes, please visit www.sba.gov/sizelindextableofsize.html) Page 1 132 California Unified Certification Program List of NA/CS Codes (partial) 333414 333415 333514 333613 333618 333911 333921 333922 333923 333924 334000 334111 334112 334113 334119 334210 334220 334290 334310 334417 334418 334419 334511 334512 334513 334514 334518 334519 334611 334612 334613 335000 336000 336112 336120 336211 336212 336311 336312 336321 336322 336330 336340 336350 336360 336370 336391 336399 Heating Equipment (except Warm Air Furnaces) Manufacturing Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing Special Die and Tool, Die Set, Jig and Fixture Manufacturing Mechanical Power Transmission Equipment Manufacturing Other Engine Equipment Manufacturing Pump and Pumping Equipment Manufacturing Elevator and Moving Stairway Manufacturing Conveyor and Conveying Equipment Manufacturing Overhead Traveling Crane, Hoist and Monorail System Manufacturing Industrial Truck, Tractor, Trailer and Stacker Machinery Manufacturing Computer and Electronic Product Manufacturing Electronic Computer Manufacturing Computer Storage Device Manufacturing Computer Terminal Manufacturing Other Computer Peripheral Equipment Manufacturing Telephone Apparatus Manufacturing Radicand Television Broadcasting and Wireless Communications Equipment Manufacturing Other Communications Equipment Manufacturing Audio and Video Equipment Manufacturing Electronic Connector Manufacturing Printed Circuit Assembly (Electronic Assembly) Mfg Other Electronic Component Manufacturing Search, Detection, Navigation, Guidance, Aeronautical, and Nautical System and Instrument Manufacturing Automatic Environmental Control Manufacturing for Residential, Commercial and Appliance Use Instruments and Related Products Manufacturing for Measuring, Displaying, and Controlling Industrial Process Variables Totalizing Fluid Meter and Counting Device Manufacturing Watch, Clock, and Part Manufacturing Other Measuring and Controlling Device Manufacturing Software Reproducing Prerecorded Compact Disc (except Software), Tape, and Record Reproducing Magnetic and Optical Recording Media Manufacturing Electrical Equipment, Appliance and Component Manufacturing Transportation Equipm_ent Manufacturing Light Truck and Utility Vehicle Manufacturing Heavy Duty Truck Manufacturing Motor Vehicle Body Manufacturing Truck Trailer Manufacturing Carburetor, Piston, Piston Ring and Valve Manufacturing Gasoline Engine and Engine Parts Manufacturing Vehicular Lighting Equipment Manufacturing Other Motor Vehicle Electrical and Electronic Equipment Manufacturing Motor Vehicle Steering and Suspension Components (except Spring) Manufacturing Motor Vehicle Brake System Manufacturing Motor Vehicle Transmission and Power Train Parts _Manufacturing Motor Vehicle Seating and Interior Trim Manufacturing Motor Vehicle MetaiStamping Motor Vehicle Air-Conditioning Manufacturing All Other Motor Vehicle Parts Manufacturing 336411 336510 336611 336991 336999 337000 337127 337211 337214 337215 337920 339000 339111 339950 339991 420000 423000 423110 423120 423130 423140 423210 423310 423320 423330 423390 423410 423420 423430 423440 423450 423490 423510 423610 423620 423690 423710 423720 423730 423740 423810 423820 423830 423840 423850 423860 423930 423940 Aircraft Manufacturing Railroad Rolling Stock Manufacturing Ship Building and Repairing Motorcycle, Bicycle and Parts Manufacturing All Other Transportation Equipment Manufacturing Furniture and Related Product Manufacturing Institutional Furniture Manufacturing Wood Office Furniture Manufacturing Office Furniture (Except Wood) Manufacturing Showcase, Partition, Shelving, and Locker Manufacturing Blind and Shade Manufacturing Miscellaneous Manufacturing Laboratory Apparatus and Furniture Manufacturing Sign Manufacturing Gasket, Packing, and Sealing Device Manufacturing Wholesale Trade Merchant Wholesalers, Durable Goods __ Automobile and Other Motor Vehicle Merchant Wholesalers Motor Vehicle Supplies and New Parts Merchant Wholeslrs Tire and Tube Merchant Wholesalers Motor VehicleParts(Used) Merchant Whole:se~l~rs Furniture Merchant Wholesalers Lumber, Ply\'lood, Millwork, and Wood Panel Merchant Wholesalers Brick, Stone, and Related Construction Material Merchant Wholesalers Roofing, Siding, and Insulation Material Merchant Wholeslrs Other Construction Material Merchant Wholesalers Photographic Equipment and Supplies Merchant Wholesalers Office EquipmentMerchant Wholesalers Computer and Computer Peripheral Equipment and Software Merchant Wholesalers Other Commercial Equipment Merchant Wholesalers Medical, Dental, and Hospital Equipment and Supplies Merchant Wholesalers Other Professional Equipment and Supplies Merchant Wholesalers Metal Service Centers and Other Metal Merchant Wholeslrs Electrical Apparatus and Equipment, Wiring Supplies, and Related Equipment Merchant Wholesalers Electrical and Electronic Appliance, Television, and Radio Set Merchant Wholesalers Other Electronic Parts and Equipment Merchant Wholesalers Hardware Merchant Wholesalers Plumbing and Heating Equipment and Supplies (Hydronics) Merchant Wholesalers Warm Air Heating and Air-Conditioning Equipment and Supplies Merchant Wholesalers Refrigeration Equipment and Supplies Merchant Wholesalers Construction and Mining (except Oil Well) Machinery and Equipment Merchant Wholesalers Farm and Garden Machinery and Equipment Merchant Wholesalers Industrial Machinery and Equipment Merchant Wholesalers Industrial Supplies Merchant Wholesalers Service Establishment Equipment and Supplies Merchant Wholesalers Transportation Equipment and Supplies (except Motor Vehicle) Merchant Wholesalers Recyclable Material Merchant Wholesalers Other Miscellaneous Durable Goods Merchant Wholesalers *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. Page 2 133 California Unified Certification Program List of NAICS Codes (partial) 424000 424110 424120 424130 424210 424310 424320 424330 424340 424410 424420 424490 424610 424690 424710 424720 424920 424930 424940 424950 424990 425000 425110 425120 440000 459999 441000 441110 441120 441221 441222 441229 441229 441310 441320 442000 442110 442210 442291 442299 443000 443111 443112 443120 443130 444000 444110 444120 444130 444190 444210 444220 445000 Merchant Wholesalers, Nondurable Goods Printing and Writing Paper Merchant Wholesalers Stationary and Office Supplies Merchant Wholesalers Industrial andPersonal Service Paper Merchant Wholesalers Drugs and Druggists' Sundries MerchantWholesalers Piece Goods, Notions, and Other Dry Goods Merchant Wholesalers Men's and Boys' Clothing and Furnishings Merchant Wholesalers Women's, Children's, and Infants' Clothing and Accessories Merchant Wholesalers Footwear Merchant Wholesalers General Line Grocery Merchant Wholesalers Packaged Frozen Food Merchant Wholesalers Other Grocery and Related Products Merchant Wholesalers Plastics Materials and Basic Forms and Shapes Merchant Wholesalers Other Chemical and Allied Products Merchant Wholesalers Petroleum Bulk Stations and Terminals Petroleum and Petroleum Products Merchant Wholesalers (except Bulk Stations and Terminals) Book, Periodical, and Newspaper Merchant Wholesalers Flower, Nursery Stock, and Florists' Supplies Merchant Wholesalers Tobacco and Tobacco Product Merchant Wholesalers P<;~int, Varr1ish, and Sllpplies Merchant Wh()lf)salers Other Miscellaneous Nondurable Goods Merchant Wholesalers Wholesale Electronic Markets and Agents and Brokers Business to Business Electronic Markets Wholesale Trade Agents and Brokers Retail Trade Motor Vehicle and Parts Dealers New Car Dealers Used Car Dealers Motorcycle Dealers Boat Dealers All Other Motor Vehicle Dealers Aircraft Dealers, Retail Automotive Parts and Accessories Stores ...... ............ . ... . Tire Dealers Furniture and Home FurnishingsStores Furniture Stores Floor Covering Stores Window Treatment Stores All OtherHome Furnishings Stores ~ Electronicsand Appliance Stores H()l!Seholdf\ppliance Stores Radio, Television and Other Electronics Stores Computer and Software Stores Camera and Photographic Supplies Stores Building Material and Garden Equipment and Supplies Dlrs Home Centers Paint and Wallpaper Stores Hardware Stores Other Building Material [)ealers Outdoor Power Equipment Stores Nursery and Garden Centers Food and Beverage St()res 446000 447000 448000 448110 448120 448130 448140 448150 448190 448210 448320 451000 451211 451212 452000 453000 453110 453210 453220 453310 454000 454111 454112 454113 454210 454311 454312 454319 454390 480000 499999 481000 481111 481112 481211 481212 481219 482000 483000 484000 484110 484121 484122 484210 484220 484230 485000 485111 485112 485113 485119 485210 485310 485320 485410 485510 Health and Personal Care Stores Gasoline Stations Clothing and Clothing Accessories Stores Men's Clothing Stores Women's Clothing Stores Children's and Infants' Clothing Stores Family Clothing Stores Clothing Accessories Stores Other Clothing. Stores Shoe Stores Luggage and Leather Goods Stores Sporting Good, Hobby, Book and Music Stores Book Stores News Dealers and Newsstands General Merchandise Store Miscellaneous Store Retailers Florists Office Supplies and Stationery Stores Gift, Novelty and Souvenir Stores Used Merchandise Stores Electronic Shopping Electronic Auctions Mail-Order Houses Nonstore Retailers Vending Machine Operators Heating Oil Dealers Liquefied Petroleum Gas (Bottled Gas) Dealers Other Fuel Dealers Other Direct Selling Establishments Transportation Air Transportation Scheduled Passenger Air :rransportatioJ1. Scheduled Freight Air Transportation Nonscheduled Chartered Passenger Air Transportation Nonscheduled Chartered Freight Air Transport<;~tion Other Nonscheduled Air Transportation Rail Transportation Water Transportation Truck Transportation General Freight Trucking, Local General Freight Trucking, Long-Distance,Jruckload General Freight Trucking, Long-Distance, Less Than Truckload Used HouseholdandOffice Goods Moving Specialized Freight (except Used Goods) Trucking, Local Specialized Freight (except Used Goods) Trucking, Long- Distance Transit and Ground Passenger Transportation Mixed Mode Transit Systems Commuter Rail Systems Bus and Motor Vehicle TransitSystems Other Urban Transit Systems .. Interurban and Rural Bus Transportation Taxi Service Limousine Service SchoolandEmployee Bus Transportation Charter Bus Industry *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. Page3 134 California Unified Certification Program List of NAICS Codes (partial) 485991 485999 486000 487000 488000 488111 488119 488190 488210 488310 488320 488390 488410 488490 488510 488991 488999 491000 492000 492110 492210 493000 493110 493120 493190 510000 511000 511110 511120 511130 511140 511199 511210 512110 512191 512199 512210 512220 512240 512290 515000 515111 515112 515120 515210 516000 516110 517000 517110 517211 517212 517310 517410 517510 517910 518000 518111 Special Needs Transportation All Other Transit and Ground Passenger Transportation Pipeline Transportation Scenic and Sightseeing Transportation Support Activities for Transportation Air Traffic Control Other Airport Operations Other Support Activities for Air Transportation Support Activities for Rail Transportation Port and Harbor Operations Marine Cargo Handling Other Support Activities for Water Transportation Motor Vehicle Towing Other Support Activities for Road Transportation Freight Transportation Arrangement Packing and Crating All Other Support Activities for Transportation Postal Service Couriers and Messengers Couriers Local Messengers and Local Delivery Warehousing and Storage General Warehousing and Storage Refrigerated Warehousing and Storage Other Warehousing and Storage Information Publishing Industries (except Internet) Newspaper Publishers Periodical Publishers Book Publishers Directory and Mailing List Publishers All Other Publishers Software Publishers Motion Picture and Video Production Teleproduction and Other Postproduction Services Other Motion Picture and Video Industries Record Production Integrated Record Production/Distribution Sound Recording Studios Other Sound Recording Industries Broadcasting (except Internet) Radio Networks* Radio Stations* Television Broadcasting* Cable and Other Subscription Programming Internet Publishing and Broadcasting Internet Publishing and Broadcasting Telecommunications Wired Telecommunications Carriers Paging Cellular and Other Wireless Telecommunications Telecommunications Resellers Satellite Telecommunications Cable and Other Program Distribution Other Telecommunications Internet Service Providers, Web Search Portals, and Data Processing Services Internet Service Providers 518112 518210 519000 519110 519120 519190 520000 522000 522220 522291 522292 522298 522310 522320 522390 523000 523110 523120 523130 523140 523910 523920 523930 523991 523999 524000 524113 524114 524126 524127 524128 524130 524210 524291 524292 524298 525000 525110 525120 525190 525910 525920 525930 525990 530000 531000 531120 531130 531190 531210 531312 531320 531390 532000 532111 532112 Web Search Portals Data Processing, Hosting, and Related Services Other Information Services News Syndicates Libraries and Archives All Other Information Services Finance and Insurance* Credit Intermediation and Related Activities Sales Financing Consumer Lending Real Estate Credit All Other Non-Depository Credit Intermediation Mortgage and Nonmortgage Loan Brokers Financial Transactions Processing, Reserve, and Clearing House Activities Other Activities Related to Credit Intermediation Financial Investments and Related Activities Investment Banking and Securities Dealing Securities Brokerage Commodity Contracts Dealing Commodity Contracts Brokerage Miscellaneous Intermediation Portfolio Management Investment Advice Trust, Fiduciary and Custody Activities Miscellaneous Financial Investment Activities Insurance Carriers and Related Activities Direct Life Insurance Carriers Direct Health and Medical Insurance Carriers Direct Property and Casualty Insurance Carriers Direct Title Insurance Carriers Other Direct Insurance (except Life, Health and Medical) Carriers Reinsurance Carriers Insurance Agencies and Brokerages Claims Adjusting Third Party Administration of Insurance and Pension Funds All Other Insurance Related Activities Funds, Trusts and Other Financial Vehicles Pension Funds Health and Welfare Funds Other Insurance Funds Open-End Investment Funds Trusts, Estates, and Agency Accounts Real Estate Investment Trusts Other Financial Vehicles Real Estate and Rental and Leasing Real Estate Lessors of Nonresidential Buildings (except Miniwarehouses) Lessors of Miniwarehouses and Self Storage Units Lessors of Other Real Estate Property Offices of Real Estate Agents and Brokers* Nonresidential Property Managers Offices of Real Estate Appraisers* Other Activities Related to Real Estate Rental and Leasing Services Passenger Car Rental Passenger Car Leasing *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. Page4 135 California Unified Certification Program List of NAICS Codes (partial) 532120 532210 532299 532310 532411 532412 532420 532490 533110 540000 541110 541191 541199 541211 541213 541214 541219 541310 541320 541330 541340 541340 541350 541360 541370 541380 541410 541420 541430 541490 541511 541512 541513 541519 541611 541612 541613 541614 541618 541620 541690 541710 541720 541810 541820 541830 541840 541850 541860 541870 Truck, Utility Trailer, and RV (Recreational Vehicle) Rental and Leasing Consumer Electronics and Appliances Rental All Other Consumer Goods Rental General Rental Centers Commercial Air, Rail, and Water Transportation Equipment Rental and Leasing Construction, Mining and Forestry Machinery and Equipment Rental and Leasing Office Machinery and Equipment Rental and Leasing Other Commercial and Industrial Machinery and Equipment Rental and Leasing Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) Professional, Scientific and Technical Services Offices of Lawyers* Title Abstract and Settlement Offices All Other Legal Services. Offices of Certified Public Accountants* Tax Preparation Services* Payroll Services . Qther Accounting Services Architectural Services* Landscape Architectural Services* Engineering Seryices* Drafting Services Map Drafting Building Inspection Services Geophysical Surveying and Mapping Services* Surveying and Mapping (except Geophysical) Services* Testing Laboratories Interior Design Services Industrial Design Services Graphic Design Services Qther Specialized Design Services Custom Computer Programming Services Computer Systems Design Services Computer Facilities Management Services Other Computer Related Services Administrative Management and General Management Consulting Services Human Resources and Executive Search Consulting Services Marketing Consulting Services Process, Physical Distribution and Logistics Consulting Services Other Management Consulting Services Environmental Consulting Services Other Scientific and Technical Consulting Services Research and Development in the Physical, Engineering, and Life Sciences Research and Development in the Social Sciences and Humanities Advertising Agencies Public Relations Agencies Media Buying Agencies Meqia Representatives Display Ad1fertising Direct Mail Advertising Advertising Material Distribution Services 541890 541910 541922 541930 541990 550000 551111 551112 560000 Other Services Related to Advertising Marketing Research and Publ.ic Opinion F'ol~ng Commercial Photography Translation and Interpretation Services All Other Professional, Scientific and Technical Services Management of Companies and Enterprises Offices of Bank HoldingC()Illpani~s~-­ Offices of Other Holding Companies Administrative and Support Services Administrative and Support Services Office Administrative Services F aGilities ~upp<>.rt. ~er\liCE!S Base rl!lai'!terlance ~··~· Employment Placement Agencies TemporaryHelp Services Employee Leasing Services Document Preparation Services Telephone Answering Services Telelllarl<eting Bureaus . Private Mail Centers OtherBusinessService Centers (including Copy Shops) Collection Agencies Credit Bureaus Repossession Services ' Court F~~porti'!g_<Ji!d ~tenotype Services All OtherB.u~n~ss§.uJ)pOrt ~~ryices ... Travei.Agenci~s Tour Operators All Other Travel Arrangement and Reservation Servic~s Investigation Services Security Guards and PatroiServices* Armored Car Services Security Systems Services (except L()(;k!)llliths) Locksmiths Exterminating and Pest Control Services* Janitorial Services Landscaping Services* 561000 561110 561210 561210 561310 561320 561330 561410 561421 561422 561431 561439 561440 561450 561491 561492 561499 561510 561520 561599 561611 561612 561613 561621 561622 561710 561720 561730 561740 561790 561910 561920 561990 562000 562111 562112 562119 562211 562219 562910 562910 562920 562998 Carpet and Upholstery (:;leaning Services ~··~Other Se~ices t~ Buildings and Dwellings 610000 611410 611420 611430 611512 Pac~agingand ~abeling Services Convention and Trade Show Organizers All Other Support Services Waste Management and Remediation Services Solid Waste Collection Hazardous Waste Collection* Other Waste Collection Hazardous Waste Treatment and Disposal* Other Nonhazardous Waste Treatment and Disposal Rerne<Jiati()n Services Environmental Remediation Services Materials Recovery Facilities All Other Miscellaneous Waste Management Services Educational Services Business and Secretarial Schools Computer Training Professional and Management DevelopmentT!aining Flight Training *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. Page 5 136 California Unified Certification Program List of NA/CS Codes (partial) 611513 611519 611630 611691 611692 611699 611710 620000 621000 621110 621210 621310 621320 621330 621340 621391 621399 621410 621420 621492 621493 621498 621511 621512 621610 621910 621999 622000 623000 624000 624110 Apprenticeship Training Other Technical and Trade Schools Language Schools Exam Preparation and Tutoring Automobile Driving Schools All Other Miscellaneous Schools and Instruction Educational Support Services Health Care and Social Assistance* Ambulatory Health Care Services Offices of Physicians Offices of Dentists Offices of Chiropractors Offices of Optometrists Offices of Mental Health Practitioners (except Physicians) Offices of Physical, Occupational and Speech Therapists and Audiologists Offices of Podiatrists Offices of All Other Miscellaneous Health Practitioners Family Planning Centers Outpatient Mental Healthand Substance Abuse Centers Kidney Dialysis Centers Freestanding Ambulatory Surgical and Emergency Centers All Other Outpatient Care Centers Medical Laboratories Diagnostic Imaging Centers Home Health Care Services Ambulance Services All Other Miscellaneous Ambulatory Health Care Services- Hospitals Nursing and Residential Care Facilities Socia/ Assistance Child and Youth Services 624120 Services for the Elderly and Persons with Disabilities 624190 Other Individual and Family Services 624210 Community Food Services 624221 Temporary Shelters 624229 Other Community Housing Services 624230 Emergency and Other Relief Services 62431 0 Vocational Rehabilitation Services 624410 Child Day Care Services 710000 Arts, Entertainment and Recreation 711000 Performing Arts, Spectator Sports and Related Industries 712000 Museums, Historical Sites and Similar Institutions 713000 Amusement, Gambling and Recreation Industries 720000 Accommodation and Food Services 721000 Accommodation 722000 Food Services and Drinking Places 722110 Full-Service Restaurants 722211 Limited-Service Restaurants 722212 Cafeterias 722213 Snack and Nonalcoholic Beverage Bars 722310 Food Service Contractors 722320 Caterers 722330 Mobile Food Services 722410 Drinking Places (Alcoholic Beverages) 810000 811000 811111 811112 811113 811118 811121 811122 811191 811192 811198 811211 811212 811213 811219 811310 811411 811412 811420 811430 812000 812320 812331 812332 812921 812922 812930 813000 Other Services Repair and Maintenance General Automotive Repair Automotive Exhaust System Repair Automotive Transmission Repair Other Automotive Mechanical and Electrical Repair and Maintenance Automotive Body, Paint and Interior Repair and Maintenance Automotive Glass Replacement Shops Automotive Oil Change and Lubrication Shops Car Washes All Other Automotive Repair and Maintenance Consumer Electronics Repair and Maintenance Computer and Office Machine Repair and Maintenance Communication Equipment Repair and Maintenance Other Electronic and Precision Equipment Repair and Maintenance Commercial and Industrial Machinery and Equipment (except Automotive and Electronic)Repairand Maintenance Home and Gardef! Equipment Repair and Maintenance Appliance Repair and Maintenance Reupholstery and Furniture Repair Footwear and Leather Goods Repair Personal and Laundry Services Drycleaning and Laundry Services (except Coin-Operated) Linen Supply Industrial Launderers Photo Finishing Laboratories (except One-Hour) One-Hour Photo Finishing Parking Lots and Garages Religious, Grantmaking, Civic, Professional and Similar Organizations *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. Page 6 137 CALIFORNIA UNIFIED CERTIFICATION PROGRAM (CUCP) Roster of Certifying Agencies Note: If you received this information on hard copy, the California Unified Certification Program Application Package is available on the website at http://www.dot.ca.gov/hg/bep/business forms.htm. If the firm has its principal place of business in another state and is currently certified in that state, please contact the California Department of Transportation in the Northern Cluster. Southern Cluster Area Counties Riverside, Imperial Riverside Imperial & San Diego San Diego (RIS) Los Angeles Kern Los Angeles Area Orange San Bernardino San Luis Obispo Santa Barbara Ventura Note: Ltst of agenCies subject to change Certifying Agencies SUBMIT APPLICATION PACKAGE TO: ~ CITY OF LOS ANGELES* ~ LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY OR ~ CALIFORNIA DEPARTMENT OF TRANSPORTATION SEE CONTACT INFORMATION BELOW CITY OF LOS ANGELES* Bureau of Contract Admin. Centralized Certification Section 1149 S. Broadway, Ste 300 Los Angeles, CA 90015 Phone: (213) 847-2684 Fax: (213) 847-2777 htt(!:/lbca.lacity.org *Only firms actively pursuing contracting opportunities with City of Los Angeles or firms located within City of Los Angeles may apply Roster Page 2 of2 138 LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY (METRO) Diversity and Economic Opportunity Department One Gateway Plaza, MS 99-8-4 Los Angeles, CA 90012 Phone: (213) 922-2600 Fax: (213) 922-7660 www.metro.net Updated 6/2011 Roster of Certifying Agencies Northern Cluster Area Counties Bay Areal Alameda Central Valley Amador Calaveras Contra Costa Fresno Kings Madera Marin Mariposa Merced Monterey Napa San Benito San Francisco San Joaquin San Mateo Santa Clara Santa Cruz Solano Sonoma Stanislaus Tulare Tuolumne Northern Alpine Nevada California Butte Placer Colusa Plumas Del Norte Sacramento ElDorado Shasta Glenn Sierra Humboldt Siskiyou In yo Sutter Lake Tehama Lassen Trinity Mendocino Yolo Modoc Yuba Mono * Lzst of agenctes sub;ect to change Certifying Agencies S.F. BAY AREA RAPID TRANSIT DISTRICT (BART) Office of Civil Rights 300 Lakeside Drive 18th Floor Oakland, CA 94612 Phone: (510) 464-6100 Fax: (510) 464-7587 www.bart.gov CITY OF FRESNO DBEProgram 2101 G Street, Building A Fresno, CA 93706 Phone: (559) 621-1132 Fax: (559) 488-1069 www.fresno.gov SANTA CLARA VALLEY TRANSPORTATION AUTHORITY (VTA) Office of Small & Disadvantaged Businesses 3331 North First Street, Bldg. A San Jose, CA 95134-1906 Phone: (408) 321-5962 Fax: ( 408) 955-9729 www.vta.org CENTRAL CONTRA COSTA TRANSIT AUTHORITY (CCCTA) Office of Civil Rights 2477 Arnold Industrial Way Concord, CA 94520-5327 Phone: (925) 676-1976 Fax: (925) 686-2630 www .cccta.org CALIFORNIA DEPARTMENT OF TRANSPORTATION (CAL TRANS) Office of Business and Economic Opportunity MS 79 1823 -14th Street Sacramento, CA 95814 Phone: (916)324-1700or (866) 810-6346 Fax: (916) 324-1862 www.dot.ca.gov Roster Page 2 of2 139 SAN FRANCISCO MUNICIPAL TRANSPORTATION AGENCY (SFMTA) Contract Compliance Office I S. Van Ness Avenue, 6th Floor San Francisco, CA 941 03 Phone: (415) 701-4436 Fax: (415) 701-4347 www .sfmuni.com SAN MATEO COUNTY TRANSIT DISTRICT ( SAM TRANS)/ PENINSULA CORRIDOR JOINT POWERS BOARD (JPB) DBE Office 1250 San Carlos Avenue San Carlos, CA 94070 Phone: (650) 508-7939 Fax: (650) 508-7738 www .samtrans.com YOLO COUNTY TRANSPORTATION DISTRICT (YO LOBUS) DBE Programs 350 Industrial Way Woodland, CA 95776 Phone: (530) 402-2817 Fax: (530) 661-1732 www.yolobus.com Updated 6/2011 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program State Route 91 Corridor Improvement Project Exhibit E Uniform Report of DBE Awards or Commitments and Payments 140 Hispanic American I (dollars) 141 (nllml::>er) Subcont. Asian American Conscious I Conscious (dollars} {number) Asian-Pacific American Non-Minority Women Ht S19oature of Authctized (dollars) Other (i.e., not o1 any other group listed here) Neutral (numoor) -l l Percentage of total dollars to OBEs Year·End TOTALS Participation INSTRUCTIONS l'OR COMPLETING Tim llNlFORM REPORT OF OBI<: AWARf>S OR COMl\HTl\U:NTS A.~D PAYMENTS l. Indicate the IXIT Operatmg Administration (OA) that proviclt>s your Federal financial assistance. If assistance comes from m<>rc than one OA, use separate reporting forms for each OA. If you arc an FTA recipient, indicat•~ your Vendor Number in the space providctl. 2. lf you arc an fAA recipient, indicate the relevlltlt AlP Numbers covered by this veport. If more than six, attach a scpnratc sheet 3. Specify the federal fiscal year (Lc., October ! ··September 30) in which the covered reporting period falls. 4. State the date of submission of this report. 5. Check the appropriate box that indicates the reporting period that the data provided in this ref'(lrt covers. If this report is due June l, data should cover Cktober l ... March 3!. If this report i~ due December l, data should cover April l ·· September 30. If this report is dnc w the FAA. data should cover the entire year. 6. Nam~ of the recipient 7. State your amma! DBE goal(s) established tor the Federal fiscal year of this report to be submitted to and approve•! by the releva!lt OA Your OvcmU Goal is to be reported as well as the breakdown for specific Race Conscious and Race Neutral Goals {both of which inclnde g•:ndcr-conscious/neutrai goals}. The Race Conscious Goal portion should be based {>n programs that focus on 3llil provide benefits only for DBEs. The usc of contract goals is a primary example of a Race Com,dous measure. The Ruce Neutral Goal portion should include programs that, while b.:ncfiting mms, arc not solely focused on DBE finns, For example, n smn!l business outreach program. technical assi$tancc, and prompt payrm:nt clauses can assist a wid.: vnrkty of businesses in addition to helping OBE 11rm~. S-9. 'l11e amoullls in items !I{A)-9(1) should inclmle all t}1'cs of prime \:ontracts awarded and all types of subcontracts awardcd e>r committed, inciuding: professional or consulrant gerviccs. construction. purdmse of materials or supplies. lease or purchase of equipment and any other types ot' services. All dollar amounts arc to rc!kct only the fcdeml share of Sitch comracrs, and should be rounded to th~· nenrest dollar. 8(A). Provide the !P!;ll pt)!hlt :~mmmt for all prime contracts as~ist~d with fX)T funds that were awarded during this reporting period. S(B). Provide the mta! numb~r of all prime contracts as>ISK-d with DOT fimds that were awarded during this reporting period. &(C). From the total dollar amount awarded in item 8(A), provide the ilil.)l;<r amvunt awarded to certified DBEs during this repNling period. 8(1)). From the total number of prime contracts awarded in item S(B), specify the number award~>d to certified DBEs during this reporting period S(E). From th<: total dollars awarded in S(C), provide the 4cl.lm: JllllQ1!Jl! awMdcd to DBEs though the usc of Race Conscious methods. S•:e the definition of Race Consci<lUS Goal in itl.'m 7 and the explanati<>a of project types in item 8 to induoo in y(nrr calculation. 8(F). From the total number of prime contracts awanicd in 8(D). specify the l1!llillltl: awarded to DBE.~ throug,h Race Conscious methods. S(G). From the total dollar amount awarded in item 8(C), provide the !!QJ!ar mnoull.!. awarded to certified DBEs thr(>Ugh the u~c of Rn<.'c Neutral methods. See t11e definition of Race Neutral Goal in item 7 and the exp!amuion of proj~..:t types in item 8 to include. 8(H). From the total number of prime contracts awarded in 8{D}, specify the nnmher awarded to DB Es through Race Neutral methods. 8(1). Of all prime contracts awarded this reporting period, calculate the ncrcentace going to DBE.<~. Divide the dollar amount in item 8(C) bv the dollar amount in item 8(A} to derive this perc.,ntagc. Round' percentage to the nearest tent!;. 9(A}-9(1). Items 9(A}9(1} arc derived in toe same way as items 8(A)· X(l). except that tllese calculations sll(>uld be based on subcontracts rather than prime contracts. Unlike prime comracts. which may only be awarded, subcontracts may be either awarded or committed. lO(A)-11(1). For all DilEs awarded prime contracts and awarded or committed subcontracts as indicated in 8{CJ-(D) nnd 9(C)-(D), break the data down further by total dollar amount as well as the number of a!l contracts going to each ethnic group as well as to non- minority women. The "Other"' category includes those DBEs who arc nnt members of the presumptively disadvantaged groups alr.:ady listed, but who arc determined eligible for the OBE progra111 on an individnal basis (e.g. a Caucasian nmk with a disability), The TOTALS value in lO(H} should equal the sum ofi)(C) plus. 9(C), and similarly, the TOTALS value in 11(11) should equal the sum of 8(f)) plus 9(D ). Column I should only be filled out if this report is dw.' on December 1, as indicated in item 5. The values for this cohnnn arc derived by adding the values reported in column H in your first rcporr with the wlucs rCJXlrt"d in this second report t2(A). Provide the total number of prime contwcls completed during this reponing period that had Rare ((>u.sci(>U> gouls. R;)ce Conscious contracts arc tho><! with contract goals or anotl11::r Rilce Con~ci(>US rneasnrc. IZ(B). Provide th~ total dollar vuluc of prime contracts complct.:d this reporting period that had Race Con~cious goals. 12((:). Provide the total dollar amount of DBE participation on all Race Conscious prime ..:ontracts completed this reporting period that was necessary ro nK-et the contract goals on them. This applies only to Race Cnnscious prime contrac\5. l2(D). Provide the actual total DBE participation in dollars on the race conscious prime comracts completed this reporting period. l2(E). or all the prime contracts completed this reporting period. ct:lculute the percentage of DBE participation. Divide the actual toml dollar amount in l2{D) by the total dvllar value provided in 12(B) to derive this perc~·ntage. Round to the nearest tcmh. U(A)·B(E). Items !3(AH3(E) arc derived in the same manner as itc;ns l2(A)-!2(E), except these figures shonld be based on Race Neutral prime contacts (Le. those with no race conscious measures). 14(A)-l4(E). Calculate the totab for each column by adding the race conscious and neutral figures prtwitlcd in each row above. ! 5. :-lame of the Authorized Representative pr..:paring this form. 16. Signature of the Authorized Represent~tivc. l7. Phon<: number \)f the Authorbwd R.~:prcscmative. l g, Fax number ot' the Authorized Rcpmscmativc. *"Submll your (Omplcted report tO y<>ur Regional or Division Offite. 142 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program State Route 91 Corridor Improvement Project Exhibit F Monthly Subcontractors Paid Report 143 Summary of Disadvantaged Business Enterprise (DBE) -Subcontractors Paid Monthly Report Reporting Period (Month/Year) Report Number Date Prepared ' ' " '0 ''" !:!: >!!m, " ~~~~?m]A!~j)tt ~: m :i ', ' }]Rf 1) Project Name 2) Project Location : 3) Contract Number : 4) Original Contract 5) Contract Award Date i Award Amount 6) Current Contract ' 7) RCTC Payment to 8) Total Amount Paid to Value Prime This Month : Prime to Date 9) Date of Last Progress 1 0) Percent of Project 11) DBE Goal Payment Received from Complete ' Percentage RCTC l (committed) . -" ; " 12) Prime Contractor 13) Contact Person ! 14) Street Address 15) City/State/Zip T I 16) Area Code/Phone No. 17) Email Address I -ill '" ~ --" ; L -~ -" Dollars Dollar Original Dollar+/-18) SUBCONTRACTOR/SUPPLIER Paid This Amount Schedule Activity ID Type of Work Dollar resulting from Month Paid to (Construction only) Performed Amount Change Order Date Committed Activity Subcontractor/Supplier #1 ! 1 1 1 ! 1 Name Address Area Code/Phone Contact Person Subcontractor/Supplier #2 1 1 1 ! 1 Name Address Area Code/Phone Contact Person Subcontractor/Supplier #3 1 1 T 1 1 Name Address Area Code/Phone Contact Person 144 Summary of Disadvantaged Business Enterprise (DBE) -Subcontractors Paid Monthly Report Reporting Period (MonthNear) Report Number Date Prepared Subcontractor/Supplier #4 l l l l ! ! Name Address Area Code/Phone Contact Person Subcontractor/Supplier #5 ; ! ! ! ! ! ! Name Address Area Code/Phone Contact Person Subcontractor/Supplier #6 ! ! ! ! ! ! Name Address Area Code/Phone Contact Person INSTRUCTIONS The Prime shall make prompt payment of all monies due and owed to DBE and non-DBE firms within 10 business days upon receipt of payment from Riverside County Transportation Commission (RCTC) as per Contract Agreement. Payment of retention shall be made to all DBE and non-DBE subcontractors within 10 days after satisfactory completion of the subcontracted work. This form is due to RCTC by the 15th of each month and should reflect all payments made to subs through the last day of the previous month. The Prime must report monthly, even if the sub(s) did not perform any work for the previous month. Please forward signed original documents by email and/or fax. Completed By: .--------------------------------------------------------------------------------,----------------, Name Signature Date 145 Summary of Disadvantaged Business Enterprise (DBE) -Subcontractors Paid Monthly Report Reporting Period (Month/Year) Report Number Date Prepared Pavment Hist DBE Sub/Supplier Sub/Supplier Sub/Supplier Sub/Supplier Sub/Supplier Sub/Supplier DBE Sub/Supplier Subcontractors/Suppliers #1 #2 #3 #4 #5 #6 Total Invoice Invoice Date Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Numbers and Date Paid I i GRAND TOTAL (Paid to Date) 146 Summary of Disadvantaged Business Enterprise (DBE) -Subcontractors Paid Monthly Report Reporting Period (MonthNear) Report Number Date Prepared Instructions -Summary of Monthly DBE Payments Information SUCCESSFUL BIDDER: This form requires specific information regarding the disadvantaged business enterprise subcontractors paid on this construction contract. The form must be completed for all DBEs. 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, 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. This 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 151h day of each month. 147 RESOLUTION NO. 12-005 RESOLUTION OF THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION ADOPTING ITS DISADVANTAGED BUSINESS ENTERPRISE PROGRAM ATTACHMENT 2 AND OVERALL DISADVANTAGED BUSINESS ENTERPRISE PROJECT GOAL (49 CFR PART 26) AS IT APPLIES TO FUNDING RECEIVED DIRECTLY FROM THE FEDERAL HIGHWAY ADMINISTRATION WHEREAS, the Riverside County Transportation Commission (Commission) adopted a Disadvantaged Business Enterprise (DBE) program in 1999; WHEREAS, the DBE Program adopted in 1999 was for Federal Highway Administration (FHWA) funds received by the Commission as a sub-recipient through the California Department of Transportation (Caltrans); WHEREAS, the Ninth Circuit Court of Appeals, in a decision regarding the Washington State Department of Transportation, determined that sufficient evidence must exist to support the use of race-conscious measures on federal-aid contracts; WHEREAS, the Commission is still required, pursuant to 49 CFR Part 26, to adopt a DBE goal and implement its DBE program for federal funding received by the Commission directly from the FHWA; WHEREAS, the methodology to determine the agency's DBE goal shall be in accordance with 49 CFR Part 26; WHEREAS, the Commission is a direct recipient of FHWA funds; WHEREAS, the Commission does not currently have sufficient evidence of discrimination or its effects which would support the adoption or implementation of a race-conscious DBE goal; WHEREAS, in light of the Ninth Circuit ruling and the U.S. DOT directive, 148 and in accordance with 49 CFR Part 26, the Commission has utilized all race neutral methodology in calculating the State Route 91 Corridor Improvement Project. NOW, THEREFORE, the Riverside County Transportation Commission hereby resolves as follows: SECTION 1. The Riverside County Transportation Commission submits its Overall DBE Project goal for the State Route 91 Corridor Improvement Project. SECTION 2. The Overall DBE goal for the State Route 91 Corridor Improvement Project shall be 2.9%. SECTION 3. The Commission shall implement a race-neutral DBE program, and shall take affirmative steps to utilize race-neutral means of meeting its overall goal. ADOPTED this 2nd day of February, 2012. John J. Benoit, Chair Riverside County Transportation Commission ATTEST: Jennifer Harmon, Clerk of the Board Riverside County Transportation Commission 149 AGENDA ITEM 70 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 2, 2012 TO: Riverside County Transportation Commission FROM: Matt Wallace, Procurement Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Federal Transit Administration Disadvantaged Business Enterprise Program and Proposed Overall Project Goal STAFF RECOMMENDATION: This item is for the Commission to: 1) Adopt Resolution No. 12-004, "Resolution of the Riverside County Transportation Commission Adopting Its Disadvantaged Business Enterprise Program and Overall Disadvantaged Business Enterprise Project Goal (49 CFR Part 26) As It Applies to Funding Received Directly from the Federal Transit Administration"; 2) Adopt the Commission's Disadvantaged Business Enterprise (DBE) Program for the San Jacinto Branch Line Commuter Rail (Perris Valley Line) project, a Federal Transit Administration (FTA) assisted contract. The DBE Program includes a proposed 3.8% overall DBE project goal for the Perris Valley Line project. The goal is wholly race-neutral and will be finalized following the required 45-day public comment period, which concludes on or about March 20, 2012; 3) Authorize the Executive Director to execute the DBE Program and Policy Statement on behalf of the Commission for submission to FT A; 4) Post the proposed overall DBE project goal to allow for public participation as required by Title 49 CFR, Part 26, make the DBE program document available for review to the public for 30 days, and receive comments for 45 days; and 5) Submit the proposed DBE program document and overall DBE project goal to the FT A for approval. BACKGROUND INFORMATION: In accordance with regulations of the U.S. Department of Transportation (U.S. DOT) under Title 49 CFR Part 26, the Commission must implement a DBE program and overall DBE project goal as a condition to receive a commitment for federal financial assistance from the FTA as a direct recipient. Agenda Item 70 150 The DBE Program and Policy Statement has been developed by the Commission to address this requirement and will be implemented by the Commission's DBE Liaison Officer, who is the Commission's Procurement Manager. This DBE program will be implemented in a wholly race-neutral fashion to conform with directives issued by the U.S. DOT related to the Ninth Circuit U.S. Court of Appeals (Ninth Circuit) decision in the Western States Paving Co. vs. Washington State Department of Transportation case. These directives prohibit any U.S. DOT recipient in the jurisdiction of the Ninth Circuit, including the Commission, from using race- conscious contract DBE goals on DOT-assisted contracts if the recipient does not possess evidence of discrimination in its transportation contracting program. The Commission does not possess such evidence of discrimination and for this reason will be implementing a wholly race-neutral DBE program. Under a wholly race-neutral DBE program, contracts let by the Commission will not include a DBE participation goal as a condition of award. Rather, in accordance with 49 CFR Part 26, the Commission will implement extensive small business outreach efforts and use other race neutral measures when applicable. The proposed race-neutral overall DBE project goal is 3.8%. The goal is based on the relative availability of DBE firms in the Commission's geographic market area (defined as Riverside County, San Bernardino County, and Orange County). The established market area represents where the Commission anticipates a majority of contractors and subcontractors will be located. Data to determine this relative availability was extracted from the California Unified Certification Program DBE Directory of Certified Firms and the 2009 U.S. Census Bureau County Business Pattern Database. The analysis attached to this staff report details the methodology utilized in developing the overall project goal for the Perris Valley Line project. As required, the proposed overall project goal will undergo a public notice and comment period. The public notice will be published in a local newspaper(s) to inform the public of the proposed goal and the rationale for setting the goal. The goal setting document will be available for inspection at the Commission office for 30 days following the date of the notice, with a 45-day comment period. Additionally, the Commission will contact several market area small business professional organizations, including minority and women focused organizations, to present the overall DBE program goal and garner any feedback. If there is compelling evidence received during the public comment period that supports a modification to the proposed overall DBE program goal, the Commission will make the appropriate adjustment before submitting its final overall DBE program goal to the FTA by March 20, 2012. Attachments: 1) RCTC's DBE Program 2) Resolution No. 12-004 Agenda Item 70 151 ATTACHMENT 1 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM I. POLICY STATEMENT AND PROGRAM OBJECTIVES Policy Statement (§26.3; §26.7; §26.21; §26.23) The Riverside County Transportation Commission (RCTC) has established and adopted a Disadvantaged Business Enterprise (DBE) Program in accordance with regulations of the U.S. Department of Transportation (DOT), Title 49, Code of Federal Regulations (CFR), Part 26 "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs." RCTC anticipates receiving Federal financial assistance from the DOT, Federal Transit Administration (FTA), and as a condition of receiving this assistance, RCTC will sign an assurance that it will comply with 49 CFR Part 26. It is the policy of RCTC to ensure that DBEs as defined in 49 CFR Part 26 have an equal opportunity to receive and participate in RCTC'S DOT -assisted contracts. It is also our policy to: o Create a level playing field by which DBEs can compete for and perform in RCTC's DOT -assisted contracting opportunities; o Ensure non-discrimination in the award and administration of all RCTC contracts and subcontracts; o Ensure that RCTC's DBE Program is narrowly tailored in accordance with applicable law and current legal standards, including the Ninth Circuit Ruling in Western States Paving vs. Washington State Department of Transportation; o Ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBEs; o Help remove procurement and contracting barriers, which impede DBE and Small Business participation in RCTC DOT-assisted contracts; o Assist in the development of DBEs and Small Businesses to increase their ability to compete successfully in the market place outside the DBE Program; and o Ensure RCTC's prime contractors and their subcontractors take all necessary and reasonable steps to comply with these policy objectives. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 1 of 13 152 As evidence of RCTC's commitment to pursue these policy objectives, the Executive Director has designated Mr. Matthew Wallace, Procurement Manager, as the DBE Liaison Officer (DBELO). In this capacity Mr. Wallace is responsible for implementing all aspects of the DBE Program. The DBELO has direct access to the Executive Director for DBE-related matters. Implementation of the DBE Program is accorded the same priority as compliance with all other legal obligations incurred by RCTC in its financial assistance agreements with DOT. RCTC will disseminate this policy statement to all of the departments of our organization. Additionally, RCTC will distribute this policy to DBE and non-DBE business communities that perform or are interested in performing work on RCTC projects. Through such efforts, RCTC will ensure DOT-assisted contracting and procurement related processes promote equity in access, consideration and opportunity for DBEs and other small businesses in response to requirements set forth under 49 CFR Part 26; "Participation of Disadvantaged Business Enterprises in U.S. Department of Transportation Programs," effective March 4, 1999, and subsequently issued DOT Directives and Final Rules. Ms. Anne Mayer, Executive Director [Signature of Executive Director] Date Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 2 of 13 153 II. APPLICABILITY (§26.3; §26.21) RCTC, as a direct recipient of federal funds from the DOT, and as a condition of receiving Federal financial assistance, is required to submit for approval to the DOT Operating Administration from which it receives the majority of its funding, a DBE Program developed in accordance with federal regulations published under 49 CFR Part 26 and subsequent guidance. This DBE Program sets forth the policies and procedures to be implemented by RCTC to ensure that DBEs have an equitable opportunity to participate in RCTC's DOT-assisted contracting program. In direct response to these regulatory requirements, RCTC hereby establishes a DBE Program, which will: 1. Comply with federal regulations and financial assistance agreements; 2. Meet legal standards for narrow-tailoring requirements; 3. Ensure non-discrimination in the award of DOT-assisted contracts; and 4. Reaffirm RCTC's commitment to fairness and the principles of equal opportunity. In conformance with 49 CFR Part 26, RCTC will continue to carry out its DBE Program until all DOT funds have been expended. RCTC additionally complies with the California Department of Transportation's (Caltrans') DBE Program on projects on which it is a subrecipient of federal funds through Caltrans. RCTC will advise all applicable DOT Operating Administrations of any significant updates and/or changes to this DBE Program. Ill. DEFINITION OF TERMS (§26.5) Race-Conscious Measure or Program: A program or portion thereof that focuses specifically on assisting only DBEs, including minority and women-owned DBEs, by the development and inclusion of participation goals or Good Faith Effort activities. Race-Neutral Measure or Program: A program or portion thereof that assists all Small Businesses, including DBEs, regardless of ownership status, in successfully participating in RCTC's procurement program. For the purposes of the DBE Program, "race-neutral" includes gender-neutrality. Any other term used in this DBE Program shall have the meaning set forth in 49 CFR Part 26, attached to this document under Exhibit A, specifically at §26.5. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 3 of 13 154 IV. RESPONSIBILITIES FOR DBE PROGRAM IMPLEMENTATION DBE Liaison Officer (§26.25) RCTC has designated the following individual as the DBE Liaison Officer (DBELO): Mr. Matt Wallace Procurement Manager/DBELO Riverside County Transportation Commission (RCTC) 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Telephone: (951) 787-7908; Fax: (951) 787-7906 Email: mwallace@rctc.org In this capacity, the DBELO is responsible for implementing all aspects of the DBE Program and ensuring that RCTC complies with all provisions of 49 CFR Part 26 and subsequent DOT -issued directives and final rules. The DBELO has direct, independent access to RCTC's Executive Director concerning DBE Program matters (Refer to Exhibit B, "DBE Program Organizational Chart"). The DBELO has sufficient support personnel who devote a portion of their time to implement the Program. The DBELO is responsible for developing, implementing and monitoring the DBE Program, in coordination with other appropriate officials. The DBELO's and/or designee's duties include, but are not limited to, the following activities: 1. Gathers and reports statistical data and other information as required by the DBE Program, including preparation of semi-annual DBE reports and overall DBE goal and related analysis for submission to the applicable DOT Operating Administration and management ad hoc reporting. 2. Reviews applicable contracts, purchase requisitions, advertisements, boilerplate language specifications and other related documentation specific to implementing applicable DBE requirements. 3. Consults with all affected departments in developing the overall DBE goal. 4. Ensures that bid notices and requests for proposals are made available to DBEs in a timely manner. 5. Reviews DOT-assisted contracts and procurements for purposes of applying, when appropriate, contract-specific DBE goals and/or applicable race-neutral methods. 6. Analyzes RCTC's progress towards meeting overall DBE goal commitments by monitoring individual contract DBE attainments. 7. Participates in reviewing DBE solicitation and contract requirements with potential bidders and/or offerors. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 4 of 13 155 8. Advises the Executive Director and/or the governing body on DBE matters and achievements. 9. Determines contractor compliance with race-conscious DBE Good Faith Effort provisions, as applicable in a race-conscious environment, and conducts contract DBE responsiveness reviews, including assessing DBE participation eligibility towards RCTC's overall DBE goal. Additionally, the DBELO and/or designee is charged with implementing the race- neutral measures defined in Section VI of this DBE Program document. Reconsideration Official (§26.53 (d)) Should RCTC implement a race-conscious component to this DBE Program, the DBE Program will be amended to provide the procedures for the administrative reconsideration process and to specify RCTC's Reconsideration Official. V. ADMINISTRATIVE REQUIREMENTS Non-discrimination Requirements (§26.7) RCTC will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part 26 on the basis of race, color, sex, or national origin. In administering its DBE Program, RCTC will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program with respect to individuals of a particular race, color, sex, or national origin. Federal Financial Assistance Agreement Assurance (§26.13 (a)) RCTC will sign the following assurance as a condition of financial assistance agreements with the DOT, and which is hereby made applicable to all of RCTC's DOT- assisted contracts: "RCTC shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any U.S. DOT-assisted contract or in the administration of its DBE Program or the requirements of Title 49, CFR, Part 26. RCTC shall take all necessary and reasonable steps under Title 49, CFR, Part 26 to ensure nondiscrimination in the award and administration of U.S. DOT-assisted contracts. RCTC's DBE Program, as required by Title 49, CFR, Part 26 and as approved by U.S. DOT, is incorporated by reference in this agreement. Implementation of this Program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to RCTC of its Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 5 of 13 156 failure to carry out its approved program, the Department may impose sanctions as provided under Title 49, CFR, Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.)." DBE Financial Institutions (§26.27) At this time, RCTC has not identified DBE-Owned financial institutions. However, RCTC encourages contractors to use the services of minority and women-owned financial institutions identified from listings posted at the Website of the Financial Management Service, US Department of the Treasury, Minority Bank Deposit Program. The Internet address of this website is: http://www.fms.treas.gov/mbdp. DBE Directory (§26.31) RCTC will refer contractors to the California Unified Certification Program (CUCP) Database of Certified DBE Firms (DBE Directory) to assist in identifying certified DBEs. The DBE Directory is published at www.CaliforniaUCP.com. Overconcentration (§26.33) RCTC has not identified any types of work that have a burdensome overconcentration of DBE participation. However, should RCTC determine that overconcentration exists in a work classification, RCTC will obtain the approval of the concerned DOT Operating Administration of its determination and the measures devised to address it. Once these measures are approved, they will become part of RCTC's DBE Program. Business Development Programs (§26.35) RCTC has not established a business development program. The DBELO will continually evaluate the need and assess whether RCTC should establish a Business Development Program and/or a Mentor Protege Program. If RCTC establishes either program, the program will be guided by the applicable Appendix of 49 CFR Part 26 and approved by the concerned DOT Operating Administration before being implemented. Fostering Small Business Participation (§26.39) RCTC will structure contracting requirements to facilitate competition by Small Businesses by specifying elements of work that Small Businesses can perform and providing subcontract opportunities for those elements to DBEs and other Small Businesses. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 6 of 13 157 VI. DETERMINING, MEETING AND COUNTING DBE PARTICIPATION TOWARDS THE OVERALL DBE GOAL (§26.45; §26.51; §26.55) Methodology for Setting Overall DBE Goals (§26.45; §26.49) In accordance with §26.45(e)(3), and with FTA approval, RCTC will establish an overall goal which will represent the amount of DOT -assisted funds RCTC anticipates expending on DBE firms, and will be presented as a percentage of the total DOT- assistance received. The overall goal will be developed in accordance with the 2-step process specified in §26.45 (c) & (d). The first step is to determine the goal "base figure" based on the relative availability of DBEs in RCTC's market area. The second step is to adjust the goal "base figure" from Step 1 so that it reflects as accurately as possible the DBE participation RCTC would expect in the absence of discrimination based on past participation, a disparity study and/or information about barriers to DBE participation. Annual projections on DBE participation during each fiscal year will be developed as specified by §26.45 (e)(3)(iii). Additionally, RCTC will provide for public participation in establishing an overall goal. RCTC will publish a notice of the proposed overall goal, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at RCTC for 30 days following the date of the notice, and informing the public that RCTC and DOT will accept comments on the goals for 45 days from the date of the notice. Notice will be issued in general circulation media and available minority-focused media & trade publications. Additionally, RCTC will issue the notice to minority, women's and general contractor groups, community organizations, and other officials or organizations to solicit information concerning the availability of disadvantaged and non- disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and RCTC's efforts to establish a level playing field for the participation of DBEs. RCTC will submit the overall goal to DOT in accordance with §26.45 (f)(2). The overall goal submission to DOT will include a summary of information and comments received during this public comment/participation process and any RCTC responses. A complete description of the methodology applied to calculate the overall goal can be found in Exhibit C to this program. RCTC will begin using the overall goal with the issuance of solicitation documents, likely to occur in the first quarter of 2012. Transit Vehicle Manufacturers (TVM) Certifications (§26.49) RCTC does not purchase TVM's, therefore this section is not applicable. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 7 of 13 158 Race-Neutral Measures (§26.51) RCTC has considered the full complement of race-neutral measures identified in 49 CFR part 26. RCTC plans to implement the following race-neutral activities aimed at increasing DBE and other Small Business participation. 1. RCTC will structure and present solicitations and schedules in ways that facilitate DBE and other Small Business participation. RCTC will also facilitate Small Business conferences, which includes a networking component to promote teaming opportunities between prospective prime contractors and the DBE and Small Business contracting community. 2. RCTC will require prime contractors to provide assistance to Small Business including DBEs in overcoming limitations such as inability to obtain bonding or financing. RCTC will additionally refer the DBE and Small Business contracting community to the SBA Bonding Assistance Program. 3. RCTC will carry out a communications effort to inform DBEs and other Small Businesses of opportunities that may be available. 4. As a supportive service to help develop and improve immediate and long-term business management, record keeping, and financial and accounting capability for DBEs and other Small Businesses, RCTC will actively promote Small Business conferences, programs and supportive services currently offered by peer agencies which have mature DBE and Small Business Programs and are seeking increased DBE and Small Business participation in their programs. 5. RCTC will advise contractors to the online directory of certified DBEs, found at the CUCP website: www.CaliforniaUCP.com. Use of Set-Asides or Quotas (§26.43) RCTC shall not permit the use of quotas for DBEs on DOT -assisted contracts in accordance with 49 CFR Part 26. Further, RCTC shall not set aside contracts for DBEs on DOT -assisted contracts subject to the regulatory provisions, except in limited and extreme circumstances where no other method could be reasonably expected to redress egregious instances of discrimination. Counting DBE Participation and Commercially Useful Function (§26.55) RCTC will count DBE participation toward the overall goal as provided in 49 CFR §26.55. RCTC will not count the participation of a DBE subcontract toward final compliance with its DBE obligations until the amount being counted has actually been paid to the DBE. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 8 of 13 159 VII. REQUIRED CONTRACT PROVISIONS AND ENFORCEMENT Contractor's Assurance Clause Regarding Non-Discrimination (§26.13) RCTC will ensure that the following clause is placed in all DOT-assisted contracts and subcontracts: "The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of Title 49, CFR, Part 26 in the award and administration of RCTC's U.S. 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 RCTC deems appropriate." Prompt Payment Provisions (§26.29) The DBE Program found at 49 CFR Part 26 requires that any delay or postponement of payment over 30 days may take place only for good cause and with RCTC's prior written approval. Any violation of this provision shall subject the violating prime 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 prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime 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 RCTC. Failure to comply with this provision without prior approval from RCTC will constitute noncompliance, which may result in the application of appropriate administrative sanctions, including, but not limited to, withholding of payment to the prime 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. 1. Prompt Progress Payments to Subcontractors RCTC will include a contract clause that will require the prime contractor to pay each subcontractor for satisfactory performance of its contract no later than 1 0 days from the receipt of each payment the prime contractor receives from RCTC. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of RCTC. This clause applies to both DBE and non-DBE subcontractors. 2. Payment of Retention Withheld from Subcontractor RCTC elects to hold retainage from the prime contractor. RCTC will provide prompt and regular incremental acceptances of portions of the work and pay retainage to the prime contractor based on these acceptances. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 9 of 13 160 RCTC will include a contract clause that will require the prime contractor to make prompt and full payment of any retainage owed to subcontractors for satisfactory completion of the subcontractors work within 30 days after subcontractor's work has been satisfactorily completed. VIII. DBE CERTIFICATION STANDARDS (§26.61-§26.73; §26.81; §26.83a) As a non-certifying member of the CUCP, RCTC will accept DBE certifications from certifying member agencies of the CUCP. The CUCP DBE Certification application is presented in Exhibit D. For more information about the certification process or to apply for certification, firms should visit the CUCP website at www.californiaucp.com. IX. CERTIFICATION PROCEDURES (SUBPART E) Unified Certification Program (UCP) (§ 26.81) & Procedures for Certification Decisions (§ 26.83) RCTC is a member of the CUCP administered by the state of California Certifying Members. The CUCP will meet all of the requirements of Subpart E of 49 CFR Part 26. X. RECORD KEEPING AND MONITORING (§26.11, §26.37) RCTC will develop an appropriate record keeping system as a mechanism for monitoring and tracking DBE commitments/attainments. The tracking system will include procedures adopted by RCTC to comply with DOT regulations and maintenance of support documentation including subcontractor commitments, contract documents for all subcontractors, and monthly Subcontractors Paid Reports (see Exhibit F) from the prime contractor. RCTC will also develop and maintain a hard-copy management file which will include documentation of all DBE Program related compliance monitoring and enforcement activities. A. Bidders List(§ 26.11) RCTC will develop and maintain a Bidders List consisting of all firms bidding on RCTC projects, along with the subcontractors that are members of the firms team at time of bid, and any new subcontractors that get added to their team over the duration of the contract. The following information will be included in the bidders list: 1. Firm Name; 2. Address; Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 10 of 13 161 3. Years in Business; 4. Status as a DBE or non-DBE; 5. Type of Work; and 6. Annual Range of Gross Receipts. B. Reporting to DOT (§ 26.11) RCTC will submit to the applicable DOT Operating Administration the "Uniform Report of DBE Awards or Commitments and Payments" (Refer to Exhibit E) semi- annually on June 1 and December 1 of each year, as required. The June 1 report will include DBE activity from October 1 through March 31. The December 1 report will include DBE activity from April 1 through September 30. This report presents a summary of the prime contract and all subcontracts awarded or committed. This report will additionally provide attainments achieved. Upon request, RCTC will compile and submit ad-hoc DBE contract award and progress reports. Furthermore, RCTC will continue to provide reports relative to RCTC's DBE Program, as directed. c. Information, Confidentiality. Cooperation(§ 26.109) RCTC will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal Freedom of Information and Privacy Acts (5 U.S.C. 552 and 552a), California Public Records Act (Government Code §6250) state, and local law. Notwithstanding the preceding provision, RCTC will not release any information that may reasonably be construed as confidential business information to any third party (other than DOT) without the written consent of the firm that submitted the information. This includes applications for DBE certification and supporting information. D. Monitoring and Enforcement Mechanisms (§ 26.37) RCTC will implement appropriate mechanisms to ensure compliance with 49 CFR Part 26 requirements by all program participants (e.g., applying legal and contract remedies available under Federal, state and local law). RCTC's DBE Program will include a monitoring and enforcement mechanism to ensure that work committed to DBEs is actually performed by DBEs. Such mechanisms will provide a running tally of actual DBE attainments (e.g., payments actually made to DBE firms), including a means of comparing these attainments to commitments. RCTC may perform interim audits of contract payments to DBEs. The audit will review payments to DBE subcontractors to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts committed. RCTC will bring to the attention of the DOT any false, fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps provided in Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 11 of 13 162 26.107 (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules). Additionally, RCTC will consider similar action under its own legal authorities, including responsibility determinations in future contracts. Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 12 of 13 163 List of Exhibits Exhibit A: DBE Program Regulations Exhibit B: DBE Program Organizational Chart Exhibit C: RCTC Goal Setting Methodology Exhibit D: CUCP DBE Certification Application Exhibit E: Uniform Report of DBE Awards or Commitments and Payments Exhibit F: Monthly Subcontractors Paid Report Riverside County Transportation Commission Disadvantaged Business Enterprise Program Page 13 of 13 164 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program Exhibit A DBE Program Regulations 165 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs TITLE 49: TRANSPORTATION PART 26-PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT OF TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS Section Contents Subpart A-General ................................................................................................................................................... 3 § 26.1 What are the objectives of this part? ......................................................................................... 3 § 26.3 To whom does this part apply? .................................................................................................. 3 § 26.5 What do the terms used in this part mean? ............................................................................... 3 § 26.7 What discriminatory actions are forbidden? .............................................................................. 6 § 26.9 How does the Department issue guidance and interpretations under this part? ...................... 6 § 26.11 What records do recipients keep and report? ........................................................................... 6 § 26.13 What assurances must recipients and contractors make? ........................................................ 7 § 26.15 How can recipients apply for exemptions or waivers? .............................................................. 7 Subpart B-Administrative Requirements for DBE Programs for Federally-Assisted Contracting ................ 8 § 26.21 Who must have a DBE program? .............................................................................................. 8 § 26.23 What is the requirement for a policy statement? ....................................................................... 8 § 26.25 What is the requirement for a liaison officer? ............................................................................ 8 § 26.27 What efforts must recipients make concerning DBE financial institutions? .............................. 9 § 26.29 What prompt payment mechanisms must recipients have? ...................................................... 9 § 26.31 What information must you include in your DBE directory? ...................................................... 9 § 26.33 What steps must a recipient take to address overconcentration of DBEs in certain types of work? ....................................................................................................................................... 10 § 26.35 What role do business development and mentor-protege programs have in the DBE program? ................................................................................................................................. 10 § 26.37 What are a recipient's responsibilities for monitoring the performance of other program participants? ............................................................................................................................ 10 § 26.39 Fostering small business participation .................................................................................... 11 Subpart C-Goals, Good Faith Efforts, and Counting ......................................................................................... ll § 26.41 What is the role of the statutory 10 percent goal in this program? .......................................... 11 § 26.43 Can recipients use set-asides or quotas as part of this program? .......................................... 11 § 26.45 How do recipients set overall goals? ....................................................................................... 11 § 26.47 Can recipients be penalized for failing to meet overall goals? ................................................ 14 § 26.49 How are overall goals established for transit vehicle manufacturers? .................................... 15 § 26.51 What means do recipients use to meet overall goals? ............................................................ 15 § 26.53 What are the good faith efforts procedures recipients follow in situations where there are contract goals? ........................................................................................................................ 17 Page 1 of 50 166 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.55 How is DBE participation counted toward goals? .................................................................... 19 Subpart D-Certification Standards ....................................................................................................................... 21 § 26.61 How are burdens of proof allocated in the certification process? ............................................ 21 § 26.63 What rules govern group membership determinations? ......................................................... 22 § 26.65 What rules govern business size determinations? .................................................................. 22 § 26.67 What rules determine social and economic disadvantage? .................................................... 22 § 26.69 What rules govern determinations of ownership? ................................................................... 23 § 26.71 What rules govern determinations concerning control? .......................................................... 25 § 26.73 What are other rules affecting certification? ............................................................................ 28 Subpart E-Certification Procedures ..................................................................................................................... 30 § 26.81 What are the requirements for Unified Certification Programs? .............................................. 30 § 26.83 What procedures do recipients follow in making certification decisions? ............................... 31 § 26.85 Interstate certification .............................................................................................................. 32 § 26.86 What rules govern recipients' denials of initial requests for certification? ............................... 34 § 26.87 What procedures does a recipient use to remove a DBE's eligibility? .................................... 35 § 26.89 What is the process for certification appeals to the Department of Transportation? .............. 37 § 26.91 What actions do recipients take following DOT certification appeal decisions? ..................... 38 Subpart F-Compliance and Enforcement ........................................................................................................... 39 § 26.101 What compliance procedures apply to recipients? ................................................................. 39 § 26.103 What enforcement actions apply in FHWA and FTA programs? ............................................ 39 § 26.1 05 What enforcement actions apply in FAA programs? ............................................................... 39 § 26.107 What enforcement actions apply to firms participating in the DBE program? ......................... 40 § 26.109 What are the rules governing information, confidentiality, cooperation, and intimidation or retaliation? ............................................................................................................................... 40 Appendix A to Part 26-Guidance Concerning Good Faith Efforts ........................................................ 41 Appendix B to Part 26-Uniform Report of DBE Awards or Commitments and Payments Form .......... 43 Appendix C to Part 26-DBE Business Development Program Guidelines ........................................... 46 Appendix D to Part 26-Mentor-Protege Program Guidelines ............................................................... 47 Appendix E to Part 26-lndividual Determinations of Social and Economic Disadvantage ................... 48 Appendix F to Part 26-Uniform Certification Application Form ............................................................. 50 Authority: 23 U.S.C. 304 and 324; 42 U.S.C. 2000d, et seq. ; 49 U.S.C. 47107, 47113, 47123; Sec. 1101(b), Pub. L. 105-178, 112 Stat. 107,113. Source: 64 FR 5126, Feb. 2, 1999, unless otherwise noted. Page 2 of 50 167 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Subpart A-General § 26.1 What are the objectives of this part? This part seeks to achieve several objectives: (a) To ensure nondiscrimination in the award and administration of DOT-assisted contracts in the Department's highway, transit, and airport financial assistance programs; (b) To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts; (c) To ensure that the Department's DBE program is narrowly tailored in accordance with applicable law; (d) To ensure that only firms that fully meet this part's eligibility standards are permitted to participate as DBEs; (e) To help remove barriers to the participation of DBEs in DOT-assisted contracts; (f) To assist the development of firms that can compete successfully in the marketplace outside the DBE program; and (g) To provide appropriate flexibility to recipients of Federal financial assistance in establishing and providing opportunities for DBEs. § 26.3 To whom does this part apply? (a) If you are a recipient of any of the following types of funds, this part applies to you: (1) Federal-aid highway funds authorized under Titles I (other than Part B) and V of the lntermodal Surface Transportation Efficiency Act of 1991 (ISTEA}, Pub. L. 102-240, 105 Stat. 1914, or Titles I, Ill, and V of the Transportation Equity Act for the 21st Century (TEA-21 }, Pub. L. 105-178, 112 Stat. 107. (2) Federal transit funds authorized by Titles I, Ill, V and VI of ISTEA, Pub. L. 102-240 or by Federal transit laws in Title 49, U.S. Code, or Titles I, Ill, and Vofthe TEA-21, Pub. L. 105-178. (3) Airport funds authorized by 49 U S.C. 47101, et seq. (b) [Reserved] (c) If you are letting a contract, and that contract is to be performed entirely outside the United States, its territories and possessions, Puerto Rico, Guam, or the Northern Marianas Islands, this part does not apply to the contract. (d) If you are letting a contract in which DOT financial assistance does not participate, this part does not apply to the contract. § 26.5 What do the terms used in this part mean? Affiliation has the same meaning the term has in the Small Business Administration (SBA) regulations, 13 CFR part 121. (1) Except as otherwise provided in 13 CFR Part 121, concerns are affiliates of each other when, either directly or indirectly: (i) One concern controls or has the power to control the other; or (ii) A third party or parties controls or has the power to control both; or (iii) An identity of interest between or among parties exists such that affiliation may be found. (2) In determining whether affiliation exists, it is necessary to consider all appropriate factors, including common ownership, common management, and contractual relationships. Affiliates must be considered together in determining whether a concern meets small business size criteria and the statutory cap on the participation of firms in the DBE program. Alaska Native means a citizen of the United States who is a person of one-fourth degree or more Alaskan Indian (including Tsimshian Indians not enrolled in the Metlaktla Indian Community}, Eskimo, or Aleut blood, or a combination of those bloodlines. The term includes, in the absence of proof of a minimum blood quantum, any citizen whom a Native village or Native group regards as an Alaska Native if their father or mother is regarded as an Alaska Native. Page 3 of 50 168 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Alaska Native Corporation (ANC) means any Regional Corporation, Village Corporation, Urban Corporation, or Group Corporation organized under the laws of the State of Alaska in accordance with the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.). Compliance means that a recipient has correctly implemented the requirements of this part. Contract means a legally binding relationship obligating a seller to furnish supplies or services (including, but not limited to, construction and professional services) and the buyer to pay for them. For purposes of this part, a lease is considered to be a contract. Contractor means one who participates, through a contract or subcontract (at any tier), in a DOT-assisted highway, transit, or airport program. Department or DOT means the U.S. Department of Transportation, including the Office of the Secretary, the Federal Highway Administration (FHWA), the Federal Transit Administration (FTA), and the Federal Aviation Administration (FAA). Disadvantaged business enterprise or DBE means a for-profit small business concern- (1) That is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by one or more such individuals; and (2) Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. DOT-assisted contract means any contract between a recipient and a contractor (at any tier) funded in whole or in part with DOT financial assistance, including letters of credit or loan guarantees, except a contract solely for the purchase of land. DOT/SBA Memorandum of Understanding or MOU. refers to the agreement signed on November 23, 1999, between the Department of Transportation (DOT) and the Small Business Administration (SBA) streamlining certification procedures for participation in SBA's 8(a) Business Development (8(a) BD) and Small Disadvantaged Business (SOB) programs, and DOT's Disadvantaged Business Enterprise (DBE) program for small and disadvantaged businesses. Good faith efforts means efforts to achieve a DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill the program requirement. Home state means the state in which a DBE firm or applicant for DBE certification maintains its principal place of business. Immediate family member means father, mother, husband, wife, son, daughter, brother, sister, grandmother, grandfather, grandson, granddaughter, mother-in-law, or father-in-law. Indian tribe means any Indian tribe, band, nation, or other organized group or community of Indians, including any ANC, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, or is recognized as such by the State in which the tribe, band, nation, group, or community resides. See definition of "tribally-owned concern" in this section. Joint venture means an association of a DBE firm and one or more other firms to carry out a single, for-profit business enterprise, for which the parties combine their property, capital, efforts, skills and knowledge, and in which the DBE is responsible for a distinct, clearly defined portion of the work of the contract and whose share in the capital contribution, control, management, risks, and profits of the joint venture are commensurate with its ownership interest. Native Hawaiian means any individual whose ancestors were natives, prior to 1778, of the area which now comprises the State of Hawaii. Native Hawaiian Organization means any community service organization serving Native Hawaiians in the State of Hawaii which is a not-for-profit organization chartered by the State of Hawaii, is controlled by Native Hawaiians, and whose business activities will principally benefit such Native Hawaiians. Noncompliance means that a recipient has not correctly implemented the requirements of this part. Operating Administration or OA means any of the following parts of DOT: the Federal Aviation Administration (FAA), Federal Highway Administration (FHWA), and Federal Transit Administration (FTA). The "Administrator" of an operating administration includes his or her designees. Page 4 of 50 169 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Personal net worth means the net value of the assets of an individual remaining after total liabilities are deducted. An individual's personal net worth does not include: The individual's ownership interest in an applicant or participating DBE firm; or the individual's equity in his or her primary place of residence. An individual's personal net worth includes only his or her own share of assets held jointly or as community property with the individual's spouse. Primary industry classification means the North American Industrial Classification System (NAICS) designation which best describes the primary business of a firm. The NAICS is described in the North American Industry Classification Manual-United States, 1997which is available from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA, 22161; by calling 1 (800) 553-6847; or via the Internet at: http://www. ntis. gov/productlnaics. htm. Primary recipient means a recipient which receives DOT financial assistance and passes some or all of it on to another recipient. Principal place of business means the business location where the individuals who manage the firm's day-to-day operations spend most working hours and where top management's business records are kept. If the offices from which management is directed and where business records are kept are in different locations, the recipient will determine the principal place of business for DBE program purposes. Program means any undertaking on a recipient's part to use DOT financial assistance, authorized by the laws to which this part applies. Race-conscious measure or program is one that is focused specifically on assisting only DBEs, including women- owned DBEs. Race-neutral measure or program is one that is, or can be, used to assist all small businesses. For the purposes of this part, race-neutral includes gender-neutrality. Recipient is any entity, public or private, to which DOT financial assistance is extended, whether directly or through another recipient, through the programs of the FAA, FHWA, or FTA, or who has applied for such assistance. Secretary means the Secretary of Transportation or his/her designee. Set-aside means a contracting practice restricting eligibility for the competitive award of a contract solely to DBE firms. Small Business Administration or SBA means the United States Small Business Administration. SBA certified firm refers to firms that have a current, valid certification from or recognized by the SBA under the 8(a) BD or SOB programs. Small business concern means, with respect to firms seeking to participate as DBEs in DOT-assisted contracts, a small business concern as defined pursuant to section 3 of the Small Business Act and Small Business Administration regulations implementing it (13 CFR part 121) that also does not exceed the cap on average annual gross receipts specified in §26.65(b). Socially and economically disadvantaged individual means any individual who is a citizen (or lawfully admitted permanent resident) of the United States and who is- (1) Any individual who a recipient finds to be a socially and economically disadvantaged individual on a case- by-case basis. (2) Any individual in the following groups, members of which are rebuttably presumed to be socially and economically disadvantaged: (i) "Black Americans," which includes persons having origins in any of the Black racial groups of Africa; (ii) "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; (iii) "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; (iv) "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati, Juvalu, Nauru, Federated States of Micronesia, or Hong Kong; (v) "Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka; Page 5 of 50 170 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (vi) Women; (vii) Any additional groups whose members are designated as socially and economically disadvantaged by the SBA, at such time as the SBA designation becomes effective. Triballv-owned concern means any concern at least 51 percent owned by an Indian tribe as defined in this section. You refers to a recipient, unless a statement in the text of this part or the context requires otherwise (i.e., 'You must do XYZ' means that recipients must do XYZ). [64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 68 FR 35553, June 16, 2003; 76 FR 5096, Jan. 28, 2011) § 26.7 What discriminatory actions are forbidden? (a) You must never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by this part on the basis of race, color, sex, or national origin. (b) In administering your DBE program, you must not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, sex, or national origin. § 26.9 How does the Department issue guidance and interpretations under this part? (a) Only guidance and interpretations (including interpretations set forth in certification appeal decisions) consistent with this part 26 and issued after March 4, 1999 express the official positions and views of the Department of Transportation or any of its operating administrations. (b) The Secretary of Transportation, Office of the Secretary of Transportation, FHWA, FTA, and FAA may issue written interpretations of or written guidance concerning this part. Written interpretations and guidance are valid, and express the official positions and views of the Department of Transportation or any of its operating administrations, only if they are issued over the signature of the Secretary of Transportation or if they contain the following statement: The General Counsel of the Department of Transportation has reviewed this document and approved it as consistent with the language and intent of 49 CFR Part 26. [72 FR 15617, Apr. 2, 2007) § 26.11 What records do recipients keep and report? (a) You must transmit the Uniform Report of DBE Awards or Commitments and Payments, found in Appendix B to this part, at the intervals stated on the form. (b) You must continue to provide data about your DBE program to the Department as directed by DOT operating administrations. (c) You must create and maintain a bidders list. (1) The purpose of this list is to provide you as accurate data as possible about the universe of DBE and non- DBE contractors and subcontractors who seek to work on your Federally-assisted contracts for use in helping you set your overall goals. (2) You must obtain the following information about DBE and non-DBE contractors and subcontractors who seek to work on your Federally-assisted contracts: (i) Firm name; (ii) Firm address; (iii) Firm's status as a DBE or non-DBE; (iv) Age of the firm; and (v) The annual gross receipts of the firm. You may obtain this information by asking each firm to indicate into what gross receipts bracket they fit (e.g., less than $500,000; $500,000-$1 million; $1-2 million; Page 6 of 50 171 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs $2-5 million; etc.) rather than requesting an exact figure from the firm. (3) You may acquire the information for your bidders list in a variety of ways. For example, you can collect the data from all bidders, before or after the bid due date. You can conduct a survey that will result in statistically sound estimate of the universe of DBE and non-DBE contractors and subcontractors who seek to work on your Federally-assisted contracts. You may combine different data collection approaches (e.g., collect name and address information from all bidders, while conducting a survey with respect to age and gross receipts information). [64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 76 FR 5096, Jan. 28, 2011] § 26.13 What assurances must recipients and contractors make? (a) Each financial assistance agreement you sign with a DOT operating administration (or a primary recipient) must include the following assurance: The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE program or the requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient's DBE program, as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq. ). (b) 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. § 26.15 How can recipients apply for exemptions or waivers? (a) You can apply for an exemption from any provision of this part. To apply, you must request the exemption in writing from the Office of the Secretary of Transportation, FHWA, FTA, or FAA. The Secretary will grant the request only if it documents special or exceptional circumstances, not likely to be generally applicable, and not contemplated in connection with the rulemaking that established this part, that make your compliance with a specific provision of this part impractical. You must agree to take any steps that the Department specifies to comply with the intent of the provision from which an exemption is granted. The Secretary will issue a written response to all exemption requests. (b) You can apply for a waiver of any provision of Subpart B or C of this part including, but not limited to, any provisions regarding administrative requirements, overall goals, contract goals or good faith efforts. Program waivers are for the purpose of authorizing you to operate a DBE program that achieves the objectives of this part by means that may differ from one or more of the requirements of Subpart B or C of this part. To receive a program waiver, you must follow these procedures: (1) You must apply through the concerned operating administration. The application must include a specific program proposal and address how you will meet the criteria of paragraph (b)(2) of this section. Before submitting your application, you must have had public participation in developing your proposal, including consultation with the DBE community and at least one public hearing. Your application must include a summary of the public participation process and the information gathered through it. (2) Your application must show that- (i) There is a reasonable basis to conclude that you could achieve a level of DBE participation consistent with the objectives of this part using different or innovative means other than those that are provided in subpart B or C of this part; (ii) Conditions in your jurisdiction are appropriate for implementing the proposal; Page 7 of 50 172 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (iii) Your proposal would prevent discrimination against any individual or group in access to contracting opportunities or other benefits of the program; and (iv) Your proposal is consistent with applicable law and program requirements of the concerned operating administration's financial assistance program. (3) The Secretary has the authority to approve your application. If the Secretary grants your application, you may administer your DBE program as provided in your proposal, subject to the following conditions: (i) DBE eligibility is determined as provided in subparts D and E of this part, and DBE participation is counted as provided in §26.49; (ii) Your level of DBE participation continues to be consistent with the objectives of this part; (iii) There is a reasonable limitation on the duration of your modified program; and (iv) Any other conditions the Secretary makes on the grant of the waiver. (4) The Secretary may end a program waiver at any time and require you to comply with this part's provisions. The Secretary may also extend the waiver, if he or she determines that all requirements of paragraphs (b)(2) and (3) of this section continue to be met. Any such extension shall be for no longer than period originally set for the duration of the program. Subpart B-Administrative Requirements for DBE Programs for Federally-Assisted Contracting § 26.21 Who must have a DBE program? (a) If you are in one of these categories and let DOT-assisted contracts, you must have a DBE program meeting the requirements of this part: (1) All FHWA recipients receiving funds authorized by a statute to which this part applies; (2) FTA recipients receiving planning, capital and/or operating assistance who will award prime contracts (excluding transit vehicle purchases) exceeding $250,000 in FTA funds in a Federal fiscal year; (3) FAA recipients receiving grants for airport planning or development who will award prime contracts exceeding $250,000 in FAA funds in a Federal fiscal year. (b) ( 1) You must submit a DBE program conforming to this part by August 31, 1999 to the concerned operating administration (OA). Once the OA has approved your program, the approval counts for all of your DOT-assisted programs (except that goals are reviewed by the particular operating administration that provides funding for your DOT-assisted contracts). (2) You do not have to submit regular updates of your DBE programs, as long as you remain in compliance. However, you must submit significant changes in the program for approval. (c) You are not eligible to receive DOT financial assistance unless DOT has approved your DBE program and you are in compliance with it and this part. You must continue to carry out your program until all funds from DOT financial assistance have been expended. [64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000] § 26.23 What is the requirement for a policy statement? You must issue a signed and dated policy statement that expresses your commitment to your DBE program, states its objectives, and outlines responsibilities for its implementation. You must circulate the statement throughout your organization and to the DBE and non-DBE business communities that perform work on your DOT-assisted contracts. § 26.25 What is the requirement for a liaison officer? You must have a DBE liaison officer, who shall have direct, independent access to your Chief Executive Officer concerning DBE program matters. The liaison officer shall be responsible for implementing all aspects of your DBE program. You must also have adequate staff to administer the program in compliance with this part. Page 8 of 50 173 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.27 What efforts must recipients make concerning DBE financial institutions? You must thoroughly investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in your community and make reasonable efforts to use these institutions. You must also encourage prime contractors to use such institutions. § 26.29 What prompt payment mechanisms must recipients have? (a) You must establish, as part of your DBE program, a contract clause to require prime contractors to pay subcontractors for satisfactory performance of their contracts no later than 30 days from receipt of each payment you make to the prime contractor. (b) You must ensure prompt and full payment of retainage from the prime contractor to the subcontractor within 30 days after the subcontractor's work is satisfactorily completed. You must use one of the following methods to comply with this requirement: (1) You may decline to hold retainage from prime contractors and prohibit prime contractors from holding retainage from subcontractors. (2) You may decline to hold retainage from prime contractors and require a contract clause obligating prime contractors to make prompt and full payment of any retainage kept by prime contractor to the subcontractor within 30 days after the subcontractor's work is satisfactorily completed. (3) You may hold retainage from prime contractors and provide for prompt and regular incremental acceptances of portions of the prime contract, pay retain age to prime contractors based on these acceptances, and require a contract clause obligating the prime contractor to pay all retainage owed to the subcontractor for satisfactory completion of the accepted work within 30 days after your payment to the prime contractor. (c) For purposes of this section, a subcontractor's work is satisfactorily completed when all the tasks called for in the subcontract have been accomplished and documented as required by the recipient. When a recipient has made an incremental acceptance of a portion of a prime contract, the work of a subcontractor covered by that acceptance is deemed to be satisfactorily completed. (d) Your DBE program must provide appropriate means to enforce the requirements of this section. These means may include appropriate penalties for failure to comply, the terms and conditions of which you set. Your program may also provide that any delay or postponement of payment among the parties may take place only for good cause, with your prior written approval. (e) You may also establish, as part of your DBE program, any of the following additional mechanisms to ensure prompt payment: (1) A contract clause that requires prime contractors to include in their subcontracts language providing that prime contractors and subcontractors will use appropriate alternative dispute resolution mechanisms to resolve payment disputes. You may specify the nature of such mechanisms. (2) A contract clause providing that the prime contractor will not be reimbursed for work performed by subcontractors unless and until the prime contractor ensures that the subcontractors are promptly paid for the work they have performed. (3) Other mechanisms, consistent with this part and applicable state and local law, to ensure that DBEs and other contractors are fully and promptly paid. [68 FR 35553, June 16, 2003) § 26.31 What information must you include in your DBE directory? (a) In the directory required under §26.81 (g) of this Part, you must list all firms eligible to participate as DBEs in your program. In the listing for each firm, you must include its address, phone number, and the types of work the firm has been certified to perform as a DBE. (b) You must list each type of work for which a firm is eligible to be certified by using the most specific NAICS code available to describe each type of work. You must make any changes to your current directory entries necessary to meet the requirement of this paragraph (a) by August 26, 2011. [76 FR 5096, Jan. 28, 2011] Page 9 of 50 174 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.33 What steps must a recipient take to address overconcentration of DBEs in certain types of work? (a) If you determine that DBE firms are so over concentrated in a certain type of work as to unduly burden the opportunity of non-DBE firms to participate in this type of work, you must devise appropriate measures to address this overconcentration. (b) These measures may include the use of incentives, technical assistance, business development programs, mentor-protege programs, and other appropriate measures designed to assist DBEs in performing work outside of the specific field in which you have detenmined that non-DBEs are unduly burdened. You may also consider varying your use of contract goals, to the extent consistent with §26.51, to unsure that non-DBEs are not unfairly prevented from competing for subcontracts. (c) You must obtain the approval of the concerned DOT operating administration for your determination of overconcentration and the measures you devise to address it. Once approved, the measures become part of your DBE program. § 26.35 What role do business development and mentor-protege programs have in the DBE program? (a) You may or, if an operating administration directs you to, you must establish a DBE business development program (BDP) to assist firms in gaining the ability to compete successfully in the marketplace outside the DBE program. You may require a DBE firm, as a condition of receiving assistance through the BOP, to agree to tenminate its participation in the DBE program after a certain time has passed or certain objectives have been reached. See Appendix C of this part for guidance on administering BDP programs. (b) As part of a BDP or separately, you may establish a "mentor-protege" program, in which another DBE or non- DBE firm is the principal source of business development assistance to a DBE firm. (1) Only firms you have certified as DBEs before they are proposed for participation in a mentor-protege program are eligible to participate in the mentor-protege program. (2) During the course of the mentor-protege relationship, you must: (i) Not award DBE credit to a non-DBE mentor firm for using its own protege firm for more than one half of its goal on any contract let by the recipient; and (ii) Not award DBE credit to a non-DBE mentor firm for using its own protege firm for more than every other contract performed by the protege firm. {3) For purposes of making determinations of business size under this part, you must not treat protege firms as affiliates of mentor finms, when both firms are participating under an approved mentor-protege program. See Appendix D of this part for guidance concerning the operation of mentor-protege programs. (c) Your BOPs and mentor-protege programs must be approved by the concerned operating administration before you implement them. Once approved, they become part of your DBE program. § 26.37 What are a recipient's responsibilities for monitoring the performance of other program participants? (a) You must implement appropriate mechanisms to ensure compliance with the part's requirements by all program participants (e.g., applying legal and contract remedies available under Federal, state and local law). You must set forth these mechanisms in your DBE program. (b) Your DBE program must also include a monitoring and enforcement mechanism to ensure that work committed to DBEs at contract award or subsequently (e.g., as the result of modification to the contract) is actually performed by the DBEs to which the work was committed. This mechanism must include a written certification that you have reviewed contracting records and monitored work sites in your state for this purpose. The monitoring to which this paragraph refers may be conducted in conjunction with monitoring of contract performance for other purposes (e.g., close-out reviews for a contract). (c) This mechanism must provide for a running tally of actual DBE attainments (e.g., payments actually made to DBE firms), including a means of comparing these attainments to commitments. In your reports of DBE participation to the Department, you must display both commitments and attainments. [64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003; 76 FR 5097, Jan. 28, 2011] Page 10 of 50 175 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.39 Fostering small business participation. (a) Your DBE program must include an element to structure contracting requirements to facilitate competition by small business concerns, taking all reasonable steps to eliminate obstacles to their participation, including unnecessary and unjustified bundling of contract requirements that may preclude small business participation in procurements as prime contractors or subcontractors. (b) This element must be submitted to the appropriate DOT operating administration for approval as a part of your DBE program by February 28, 2012. As part of this program element you may include, but are not limited to, the following strategies: (1) Establishing a race-neutral small business set-aside for prime contracts under a stated amount (e.g., $1 million). (2) In multi-year design-build contracts or other large contracts (e.g., for "megaprojects") requiring bidders on the prime contract to specify elements of the contract or specific subcontracts that are of a size that small businesses, including DBEs, can reasonably perform. (3) On prime contracts not having DBE contract goals, requiring the prime contractor to provide subcontracting opportunities of a size that small businesses, including DBEs, can reasonably perform, rather than self- performing all the work involved. (4) Identifying alternative acquisition strategies and structuring procurements to facilitate the ability of consortia or joint ventures consisting of small businesses, including DBEs, to compete for and perform prime contracts. (5) To meet the portion of your overall goal you project to meet through race-neutral measures, ensuring that a reasonable number of prime contracts are of a size that small businesses, including DBEs, can reasonably perform. (c) You must actively implement your program elements to foster small business participation. Doing so is a requirement of good faith implementation of your DBE program. [76 FR 5097, Jan. 28, 2011) Subpart C-Goals, Good Faith Efforts, and Counting § 26.41 What is the role of the statutory 10 percent goal in this program? (a) The statutes authorizing this program provide that, except to the extent the Secretary determines otherwise, not less than 10 percent of the authorized funds are to be expended with DBEs. (b) This 10 percent goal is an aspirational goal at the national level, which the Department uses as a tool in evaluating and monitoring DBEs' opportunities to participate in DOT-assisted contracts. (c) The national10 percent goal does not authorize or require recipients to set overall or contract goals at the 10 percent level, or any other particular level, or to take any special administrative steps if their goals are above or below 10 percent. § 26.43 Can recipients use set-asides or quotas as part of this program? (a) You are not permitted to use quotas for DBEs on DOT-assisted contracts subject to this part. (b) You may not set-aside contracts for DBEs on DOT-assisted contracts subject to this part, except that, in limited and extreme circumstances, you may use set-asides when no other method could be reasonably expected to redress egregious instances of discrimination. § 26.45 How do recipients set overall goals? (a) (1) Except as provided in paragraph (a)(2) of this section, you must set an overall goal for DBE participation in your DOT-assisted contracts. (2) If you are a FTA or FAA recipient who reasonably anticipates awarding (excluding transit vehicle purchases) $250,000 or less in FTA or FAA funds in prime contracts in a Federal fiscal year, you are not required to develop overall goals for FTA or FAA respectively for that fiscal year. However, if you have an existing DBE program, it must remain in effect and you must seek to fulfill the objectives outlined in §26.1. Page 11 of 50 176 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (b) Your overall goal must be based on demonstrable evidence of the availability of ready, willing and able DBEs relative to all businesses ready, willing and able to participate on your DOT-assisted contracts (hereafter, the "relative availability of DBEs"). The goal must reflect your determination of the level of DBE participation you would expect absent the effects of discrimination. You cannot simply rely on either the 10 percent national goal, your previous overall goal or past DBE participation rates in your program without reference to the relative availability of DBEs in your market. (c) Step 1. You must begin your goal setting process by determining a base figure for the relative availability of DBEs. The following are examples of approaches that you may take toward determining a base figure. These examples are provided as a starting point for your goal setting process. Any percentage figure derived from one of these examples should be considered a basis from which you begin when examining all evidence available in your jurisdiction. These examples are not intended as an exhaustive list. Other methods or combinations of methods to determine a base figure may be used, subject to approval by the concerned operating administration. (1) Use DBE Directories and Census Bureau Data. Determine the number of ready, willing and able DBEs in your market from your DBE directory. Using the Census Bureau's County Business Pattern (CBP) data base, determine the number of all ready, willing and able businesses available in your market that perform work in the same NAICS codes. (Information about the CBP data base may be obtained from the Census Bureau at their web site, www.census.gov/epcd/cbp/view/cbpview.html.) Divide the number of DBEs by the number of all businesses to derive a base figure for the relative availability of DBEs in your market. (2) Use a bidders list. Determine the number of DBEs that have bid or quoted on your DOT-assisted prime contracts or subcontracts in the previous year. Determine the number of all businesses that have bid or quoted on prime or subcontracts in the same time period. Divide the number of DBE bidders and quoters by the number for all businesses to derive a base figure for the relative availability of DBEs in your market. (3) Use data from a disparity study. Use a percentage figure derived from data in a valid, applicable disparity study. (4) Use the goal of another DOT recipient. If another DOT recipient in the same, or substantially similar, market has set an overall goal in compliance with this rule, you may use that goal as a base figure for your goal. (5) Alternative methods. You may use other methods to determine a base figure for your overall goal. Any methodology you choose must be based on demonstrable evidence of local market conditions and be designed to ultimately attain a goal that is rationally related to the relative availability of DBEs in your market. (d) Step 2. Once you have calculated a base figure, you must examine all of the evidence available in your jurisdiction to determine what adjustment, if any, is needed to the base figure in order to arrive at your overall goal. (1) There are many types of evidence that must be considered when adjusting the base figure. These include: (i) The current capacity of DBEs to perform work in your DOT-assisted contracting program, as measured by the volume of work DBEs have performed in recent years; (ii) Evidence from disparity studies conducted anywhere within your jurisdiction, to the extent it is not already accounted for in your base figure; and (iii) If your base figure is the goal of another recipient, you must adjust it for differences in your local market and your contracting program. (2) If available, you must consider evidence from related fields that affect the opportunities for DBEs to form, grow and compete. These include, but are not limited to: (i) Statistical disparities in the ability of DBEs to get the financing, bonding and insurance required to participate in your program; (ii) Data on employment, self-employment, education, training and union apprenticeship programs, to the extent you can relate it to the opportunities for DBEs to perform in your program. (3) If you attempt to make an adjustment to your base figure to account for the continuing effects of past discrimination (often called the "but for" factor) or the effects of an ongoing DBE program, the adjustment must be based on demonstrable evidence that is logically and directly related to the effect for which the adjustment is sought. (e) Once you have determined a percentage figure in accordance with paragraphs (c) and (d) of this section, you should express your overall goal as follows: Page 12 of 50 177 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (1) If you are an FHWA recipient, as a percentage of all Federal-aid highway funds you will expend in FHWA- assisted contracts in the forthcoming three fiscal years. (2) If you are an FTA or FAA recipient, as a percentage of all FT or FAA funds (exclusive of FTA funds to be used for the purchase of transit vehicles) that you will expend in FTA or FAA-assisted contracts in the three forthcoming fiscal years. (3) In appropriate cases, the FHWA, FTA or FAA Administrator may permit or require you to express your overall goal as a percentage of funds for a particular grant or project or group of grants and/or projects. Like other overall goals, a project goal may be adjusted to reflect changed circumstances, with the concurrence of the appropriate operating administration. (i) A project goal is an overall goal, and must meet all the substantive and procedural requirements of this section pertaining to overall goals. (ii) A project goal covers the entire length of the project to which it applies. (iii) The project goal should include a projection of the DBE participation anticipated to be obtained during each fiscal year covered by the project goal. (iv) The funds for the project to which the project goal pertains are separated from the base from which your regular overall goal, applicable to contracts not part of the project covered by a project goal, is calculated. (f) (1) (i) If you set your overall goal on a fiscal year basis, you must submit it to the applicable DOT operating administration by August 1 at three-year intervals, based on a schedule established by the FHWA, FTA, or FAA, as applicable, and posted on that agency's Web site. (ii) You may adjust your three-year overall goal during the three-year period to which it applies, in order to reflect changed circumstances. You must submit such an adjustment to the concerned operating administration for review and approval. (iii) The operating administration may direct you to undertake a review of your goal if necessary to ensure that the goal continues to fit your circumstances appropriately. (iv) While you are required to submit an overall goal to FHWA, FTA, or FAA only every three years, the overall goal and the provisions of Sec. 26.47(c) apply to each year during that three-year period. (v) You may make, for informational purposes, projections of your expected DBE achievements during each of the three years covered by your overall goal. However, it is the overall goal itself, and not these informational projections, to which the provisions of section 26.47(c) of this part apply. (2) If you are a recipient and set your overall goal on a project or grant basis as provided in paragraph (e)(3) of this section, you must submit the goal for review at a time determined by the FHWA, FTA or FAA Administrator, as applicable. (3) You must include with your overall goal submission a description of the methodology you used to establish the goal, including your base figure and the evidence with which it was calculated, and the adjustments you made to the base figure and the evidence you relied on for the adjustments. You should also include a summary listing of the relevant available evidence in your jurisdiction and, where applicable, an explanation of why you did not use that evidence to adjust your base figure. You must also include your projection of the portions of the overall goal you expect to meet through race-neutral and race-conscious measures, respectively (see 26.51 (c)) (4) You are not required to obtain prior operating administration concurrence with your overall goal. However, if the operating administration's review suggests that your overall goal has not been correctly calculated, or that your method for calculating goals is inadequate, the operating administration may, after consulting with you, adjust your overall goal or require that you do so. The adjusted overall goal is binding on you. (5) If you need additional time to collect data or take other steps to develop an approach to setting overall goals, you may request the approval of the concerned operating administration for an interim goal and/or goal- setting mechanism. Such a mechanism must: (i) Reflect the relative availability of DBEs in your local market to the maximum extent feasible given the data available to you; and (ii) Avoid imposing undue burdens on non-DBEs. (6) Timely submission and operating administration approval of your overall goal is a condition of eligibility for DOT financial assistance. Page 13 of 50 178 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (7) If you fail to establish and implement goals as provided in this section, you are not in compliance with this part. If you establish and implement goals in a way different from that provided in this part, you are not in compliance with this part. If you fail to comply with this requirement, you are not eligible to receive DOT financial assistance. (g) In establishing an overall goal, you must provide for public participation. This public participation must include: (1) Consultation with minority, women's and general contractor groups, community organizations, and other officials or organizations which could be expected to have information concerning the availability of disadvantaged and non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and your efforts to establish a level playing field for the participation of DBEs. (2) A published notice announcing your proposed overall goal, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at your principal office for 30 days following the date of the notice, and informing the public that you and the Department will accept comments on the goals for 45 days from the date of the notice. The notice must include addresses to which comments may be sent, and you must publish it in general circulation media and available minority-focused media and trade association publications. (h) Your overall goals must provide for participation by all certified DBEs and must not be subdivided into group- specific goals. [64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000; 68 FR 35553, June 16, 2003; 75 FR 5536, Feb. 3, 2010; 76 FR 5097, Jan. 28, 2011] § 26.47 Can recipients be penalized for failing to meet overall goals? (a) You cannot be penalized, or treated by the Department as being in noncompliance with this rule, because your DBE participation falls short of your overall goal, unless you have failed to administer your program in good faith. (b) If you do not have an approved DBE program or overall goal, or if you fail to implement your program in good faith, you are in noncompliance with this part. (c) If the awards and commitments shown on your Uniform Report of Awards or Commitments and Payments at the end of any fiscal year are less than the overall goal applicable to that fiscal year, you must do the following in order to be regarded by the Department as implementing your DBE program in good faith: (1) Analyze in detail the reasons for the difference between the overall goal and your awards and commitments in that fiscal year; (2) Establish specific steps and milestones to correct the problems you have identified in your analysis and to enable you to meet fully your goal for the new fiscal year; (3) (i) If you are a state highway agency; one of the 50 largest transit authorities as determined by the FTA; or an Operational Evolution Partnership Plan airport or other airport designated by the FAA, you must submit, within 90 days of the end of the fiscal year, the analysis and corrective actions developed under paragraphs (c)(1) and (2) of this section to the appropriate operating administration for approval. If the operating administration approves the report, you will be regarded as complying with the requirements of this section for the remainder of the fiscal year. (ii) As a transit authority or airport not meeting the criteria of paragraph (c)(3)(i) of this section, you must retain analysis and corrective actions in your records for three years and make it available to FTA or FAA on request for their review. (4) FHWA, FTA, or FAA may impose conditions on the recipient as part of its approval of the recipient's analysis and corrective actions including, but not limited to, modifications to your overall goal methodology, changes in your race-conscious/race-neutral split, or the introduction of additional race-neutral or race-conscious measures. (5) You may be regarded as being in noncompliance with this Part, and therefore subject to the remedies in §26.1 03 or §26.1 05 of this part and other applicable regulations, for failing to implement your DBE program in good faith if any of the following things occur: (i) You do not submit your analysis and corrective actions to FHWA, FTA, or FAA in a timely manner as required under paragraph (c)(3) of this section; (ii) FHWA, FTA, or FAA disapproves your analysis or corrective actions; or Page 14 of 50 179 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (iii) You do not fully implement the corrective actions to which you have committed or conditions that FHWA, FTA, or FAA has imposed following review of your analysis and corrective actions. (d) If, as recipient, your Uniform Report of DBE Awards or Commitments and Payments or other information coming to the attention of FTA, FHWA, or FAA, demonstrates that current trends make it unlikely that you will achieve DBE awards and commitments that would be necessary to allow you to meet your overall goal at the end of the fiscal year, FHWA, FTA, or FAA, as applicable, may require you to make further good faith efforts, such as by modifying your race-conscious/race-neutral split or introducing additional race-neutral or race-conscious measures for the remainder of the fiscal year. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011) § 26.49 How are overall goals established for transit vehicle manufacturers? (a) If you are an FTA recipient, you must require in your DBE program that each transit vehicle manufacturer, as a condition of being authorized to bid or propose on FTA-assisted transit vehicle procurements, certify that it has complied with the requirements of this section. You do not include FTA assistance used in transit vehicle procurements in the base amount from which your overall goal is calculated. (b) If you are a transit vehicle manufacturer, you must establish and submit for FTA's approval an annual overall percentage goal. In setting your overall goal, you should be guided, to the extent applicable, by the principles underlying §26.45. The base from which you calculate this goal is the amount of FTA financial assistance included in transit vehicle contracts you will perform during the fiscal year in question. You must exclude from this base funds attributable to work performed outside the United States and its territories, possessions, and commonwealths. The requirements and procedures of this part with respect to submission and approval of overall goals apply to you as they do to recipients. (c) As a transit vehicle manufacturer, you may make the certification required by this section if you have submitted the goal this section requires and FTA has approved it or not disapproved it. (d) As a recipient, you may, with FTA approval, establish project-specific goals for DBE participation in the procurement of transit vehicles in lieu of complying through the procedures of this section. (e) If you are an FHWA or FAA recipient, you may, with FHWA or FAA approval, use the procedures of this section with respect to procurements of vehicles or specialized equipment. If you choose to do so, then the manufacturers of this equipment must meet the same requirements (including goal approval by FHWA or FAA) as transit vehicle manufacturers must meet in FTA-assisted procurements. § 26.51 What means do recipients use to meet overall goals? (a) You must meet the maximum feasible portion of your overall goal by using race-neutral means of facilitating DBE participation. Race-neutral DBE participation includes any time a DBE wins a prime contract through customary competitive procurement procedures, is awarded a subcontract on a prime contract that does not carry a DBE goal, or even if there is a DBE goal, wins a subcontract from a prime contractor that did not consider its DBE status in making the award (e.g., a prime contractor that uses a strict low bid system to award subcontracts). (b) Race-neutral means include, but are not limited to, the following: (1) Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate participation by DBEs and other small businesses and by making contracts more accessible to small businesses, by means such as those provided under §26.39 of this part. (2) Providing assistance in overcoming limitations such as inability to obtain bonding or financing (e.g., by such means as simplifying the bonding process, reducing bonding requirements, eliminating the impact of surety costs from bids, and providing services to help DBEs, and other small businesses, obtain bonding and financing); (3) Providing technical assistance and other services; (4) Carrying out information and communications programs on contracting procedures and specific contract opportunities (e.g., ensuring the inclusion of DBEs, and other small businesses, on recipient mailing lists for bidders; ensuring the dissemination to bidders on prime contracts of lists of potential subcontractors; provision of information in languages other than English, where appropriate); (5) Implementing a supportive services program to develop and improve immediate and long-term business management, record keeping, and financial and accounting capability for DBEs and other small businesses; Page 15 of 50 180 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (6) Providing services to help DBEs, and other small businesses, improve long-term development, increase opportunities to participate in a variety of kinds of work, handle increasingly significant projects, and achieve eventual self-sufficiency; (7) Establishing a program to assist new, start-up firms, particularly in fields in which DBE participation has historically been low; (8) Ensuring distribution of your DBE directory, through print and electronic means, to the widest feasible universe of potential prime contractors; and (9) Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and conduct business through electronic media. (c) Each time you submit your overall goal for review by the concerned operating administration, you must also submit your projection of the portion of the goal that you expect to meet through race-neutral means and your basis for that projection. This projection is subject to approval by the concerned operating administration, in conjunction with its review of your overall goal. (d) You must establish contract goals to meet any portion of your overall goal you do not project being able to meet using race-neutral means. (e) The following provisions apply to the use of contract goals: (1) You may use contract goals only on those DOT-assisted contracts that have subcontracting possibilities. (2) You are not required to set a contract goal on every DOT-assisted contract. You are not required to set each contract goal at the same percentage level as the overall goal. The goal for a specific contract may be higher or lower than that percentage level of the overall goal, depending on such factors as the type of work involved, the location of the work, and the availability of DBEs for the work of the particular contract. However, over the period covered by your overall goal, you must set contract goals so that they will cumulatively result in meeting any portion of your overall goal you do not project being able to meet through the use of race-neutral means. (3) Operating administration approval of each contract goal is not necessarily required. However, operating administrations may review and approve or disapprove any contract goal you establish. (4) Your contract goals must provide for participation by all certified DBEs and must not be subdivided into group-specific goals. (f) To ensure that your DBE program continues to be narrowly tailored to overcome the effects of discrimination, you must adjust your use of contract goals as follows: (1) If your approved projection under paragraph (c) of this section estimates that you can meet your entire overall goal for a given year through race-neutral means, you must implement your program without setting contract goals during that year, unless it becomes necessary in order meet your overall goal. Example to paragraph (f}(1): Your overall goal for Year 1 is 12 percent. You estimate that you can obtain 12 percent or more DBE participation through the use of race-neutral measures, without any use of contract goals. In this case, you do not set any contract goals for the contracts that will be performed in Year 1. However, if part way through Year 1, your DBE awards or commitments are not at a level that would permit you to achieve your overall goal for Year 1, you could begin setting race-conscious DBE contract goals during the remainder of the year as part of your obligation to implement your program in good faith. Example to paragraph (f)(1): Your overall goal for Year I is 12 percent. You estimate that you can obtain 12 percent or more DBE participation through the use of race-neutral measures, without any use of contract goals. In this case, you do not set any contract goals for the contracts that will be performed in Year I. (2) If, during the course of any year in which you are using contract goals, you determine that you will exceed your overall goal, you must reduce or eliminate the use of contract goals to the extent necessary to ensure that the use of contract goals does not result in exceeding the overall goal. If you determine that you will fall short of your overall goal, then you must make appropriate modifications in your use of race-neutral and/or race-conscious measures to allow you to meet the overall goal. Example to paragraph (f)(2): In Year II, your overall goal is 12 percent. You have estimated that you can obtain 5 percent DBE participation through use of race-neutral measures. You therefore plan to obtain the remaining 7 percent participation through use of DBE goals. By September, you have already obtained 11 percent DBE participation for the year. For contracts let during the remainder of the year, you use contract goals only to the extent necessary to obtain an additional one percent DBE participation. However, if you determine in September that your participation for the year is likely to be only 8 percent total, then you would Page 16 of 50 181 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs increase your use of race-neutral and/or race-conscious means during the remainder of the year in order to achieve your overall goal. (3) If the DBE participation you have obtained by race-neutral means alone meets or exceeds your overall goals for two consecutive years, you are not required to make a projection of the amount of your goal you can meet using such means in the next year. You do not set contract goals on any contracts in the next year. You continue using only race-neutral means to meet your overall goals unless and until you do not meet your overall goal for a year. Example to paragraph (f)(3): Your overall goal for Years I and Year II is 10 percent. The DBE participation you obtain through race-neutral measures alone is 10 percent or more in each year. (For this purpose, it does not matter whether you obtained additional DBE participation through using contract goals in these years.) In Year Ill and following years, you do not need to make a projection under paragraph (c) of this section of the portion of your overall goal you expect to meet using race-neutral means. You simply use race-neutral means to achieve your overall goals. However, if in Year VI your DBE participation falls short of your overall goal, then you must make a paragraph (c) projection for Year VII and, if necessary, resume use of contract goa Is in that year. (4) If you obtain DBE participation that exceeds your overall goal in two consecutive years through the use of contract goals (i.e., not through the use of race-neutral means alone), you must reduce your use of contract goals proportionately in the following year. Example to paragraph (f)(4): In Years I and II, your overall goal is 12 percent, and you obtain 14 and 16 percent DBE participation, respectively. You have exceeded your goals over the two-year period by an average of 25 percent. In Year Ill, your overall goal is again 12 percent, and your paragraph (c) projection estimates that you will obtain 4 percent DBE participation through race-neutral means and 8 percent through contract goals. You then reduce the contract goal projection by 25 percent (i.e., from 8 to 6 percent) and set contract goals accordingly during the year. If in Year Ill you obtain 11 percent participation, you do not use this contract goal adjustment mechanism for Year IV, because there have not been two consecutive years of exceeding overall goals. (g) In any year in which you project meeting part of your goal through race-neutral means and the remainder through contract goals, you must maintain data separately on DBE achievements in those contracts with and without contract goals, respectively. You must report this data to the concerned operating administration as provided in §26.11. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011) § 26.53 What are the good faith efforts procedures recipients follow in situations where there are contract goals? (a) When you have established a DBE contract goal, you must award the contract only to a bidder/offeror who makes good faith efforts to meet it. You must determine that a bidder/offeror has made good faith efforts if the bidder/offeror does either of the following things: (1) Documents that it has obtained enough DBE participation to meet the goal; or (2) Documents that it made adequate good faith efforts to meet the goal, even though it did not succeed in obtaining enough DBE participation to do so. If the bidder/offeror does document adequate good faith efforts, you must not deny award of the contract on the basis that the bidder/offeror failed to meet the goal. See Appendix A of this part for guidance in determining the adequacy of a bidder/offeror's good faith efforts. (b) In your solicitations for DOT-assisted contracts for which a contract goal has been established, you must require the following: (1) Award of the contract will be conditioned on meeting the requirements of this section; (2) All bidders/offerors will be required to submit the following information to the recipient, at the time provided in paragraph (b)(3) of this section: (i) The names and addresses of DBE firms that will participate in the contract; (ii) A description of the work that each DBE will perform; (iii) The dollar amount of the participation of each DBE firm participating; 182 Page 17 of 50 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (iv) Written documentation of the bidder/offeror's commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; (v) Written confirmation from the DBE that it is participating in the contract as provided in the prime contractor's commitment; and (vi) If the contract goal is not met, evidence of good faith efforts (see Appendix A of this part); and (3) At your discretion, the bidder/offeror must present the information required by paragraph (b)(2) of this section- (i) Under sealed bid procedures, as a matter of responsiveness, or with initial proposals, under contract negotiation procedures; or (ii) At any time before you commit yourself to the performance of the contract by the bidder/offeror, as a matter of responsibility. (c) You must make sure all information is complete and accurate and adequately documents the bidder/offeror's good faith efforts before committing yourself to the performance of the contract by the bidder/offeror. (d) If you determine that the apparent successful bidder/offeror has failed to meet the requirements of paragraph (a) of this section, you must, before awarding the contract, provide the bidder/offeror an opportunity for administrative reconsideration. (1) As part of this reconsideration, the bidder/offeror must have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. (2) Your decision on reconsideration must be made by an official who did not take part in the original determination that the bidder/offeror failed to meet the goal or make adequate good faith efforts to do so. (3) The bidder/offeror must have the opportunity to meet in person with your reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so. (4) You must send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. (5) The result of the reconsideration process is not administratively appealable to the Department of Transportation. (e) In a "design-build" or "turnkey" contracting situation, in which the recipient lets a master contract to a contractor, who in turn lets subsequent subcontracts for the work of the project, a recipient may establish a goal for the project. The master contractor then establishes contract goals, as appropriate, for the subcontracts it lets. Recipients must maintain oversight of the master contractor's activities to ensure that they are conducted consistent with the requirements of this part. (f) (1) You must require that a prime contractor not terminate a DBE subcontractor listed in response to paragraph (b)(2) of this section (or an approved substitute DBE firm) without your prior written consent. This includes, but is not limited to, instances in which a prime contractor seeks to perform work originally designated for a DBE subcontractor with its own forces or those of an affiliate, a non-DBE firm, or with another DBE firm. (2) You may provide such written consent only if you agree, for reasons stated in your concurrence document, that the prime contractor has good cause to terminate the DBE firm. (3) For purposes of this paragraph, good cause includes the following circumstances: (i) The listed DBE subcontractor fails or refuses to execute a written contract; (ii) The listed DBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with normal industry standards. Provided, however, that good cause does not exist if the failure or refusal of the DBE subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the prime contractor; (iii) The listed DBE subcontractor fails or refuses to meet the prime contractor's reasonable, nondiscriminatory bond requirements. (iv) The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness; (v) The listed DBE subcontractor is ineligible to work on public works projects because of suspension and debarment proceedings pursuant 2 CFR Parts 180, 215 and 1,200 or applicable state law; (vii) You have determined that the listed DBE subcontractor is not a responsible contractor; Page 18 of 50 183 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (vi) The listed DBE subcontractor voluntarily withdraws from the project and provides to you written notice of its withdrawal; (vii) The listed DBE is ineligible to receive DBE credit for the type of work required; (viii) A DBE owner dies or becomes disabled with the result that the listed DBE contractor is unable to complete its work on the contract; (ix) Other documented good cause that you determine compels the termination of the DBE subcontractor. Provided, that good cause does not exist if the prime contractor seeks to terminate a DBE it relied upon to obtain the contract so that the prime contractor can self-perform the work for which the DBE contractor was engaged or so that the prime contractor can substitute another DBE or non-DBE contractor after contract award. (4) Before transmitting to you its request to terminate and/or substitute a DBE subcontractor, the prime contractor must give notice in writing to the DBE subcontractor, with a copy to you, of its intent to request to terminate and/or substitute, and the reason for the request. (5) The prime contractor must give the DBE five days to respond to the prime contractor's notice and advise you and the contractor of the reasons, if any, why it objects to the proposed termination of its subcontract and why you should not approve the prime contractor's action. If required in a particular case as a matter of public necessity (e.g., safety), you may provide a response period shorter than five days. (6) In addition to post-award terminations, the provisions of this section apply to pre-award deletions of or substitutions for DBE firms put forward by offerors in negotiated procurements. (g) When a DBE subcontractor is terminated, or fails to complete its work on the contract for any reason, you must require the prime contractor to make good faith efforts to find another DBE subcontractor to substitute for the original DBE. These good faith efforts shall be directed at finding another DBE to perform at least the same amount of work under the contract as the DBE that was terminated, to the extent needed to meet the contract goal you established for the procurement. (h) You must include in each prime contract a provision for appropriate administrative remedies that you will invoke if the prime contractor fails to comply with the requirements of this section. (i) You must apply the requirements of this section to DBE bidders/offerors for prime contracts. In determining whether a DBE bidder/offeror for a prime contract has met a contract goal, you count the work the DBE has committed to performing with its own forces as well as the work that it has committed to be performed by DBE subcontractors and DBE suppliers. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011] § 26.55 How is DBE participation counted toward goals? (a) When a DBE participates in a contract, you count only the value of the work actually performed by the DBE toward DBE goals. (1) Count the entire amount of that portion of a construction contract (or other contract not covered by paragraph (a)(2) of this section) that is performed by the DBE's own forces. Include the cost of supplies and materials obtained by the DBE for the work of the contract, including supplies purchased or equipment leased by the DBE (except supplies and equipment the DBE subcontractor purchases or leases from the prime contractor or its affiliate). (2) Count the entire amount of fees or commissions charged by a DBE firm for providing a bona fide service, such as professional, technical, consultant, or managerial services, or for providing bonds or insurance specifically required for the performance of a DOT-assisted contract, toward DBE goals, provided you determine the fee to be reasonable and not excessive as compared with fees customarily allowed for similar services. (3) When a DBE subcontracts part of the work of its contract to another firm, the value of the subcontracted work may be counted toward DBE goals only if the DBE's subcontractor is itself a DBE. Work that a DBE subcontracts to a non-DBE firm does not count toward DBE goals. (b) When a DBE performs as a participant in a joint venture, count a portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the DBE performs with its own forces toward DBE goals. Page 19 of 50 184 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (c) Count expenditures to a DBE contractor toward DBE goals only if the DBE is performing a commercially useful function on that contract. (1) A DBE performs a commercially useful function when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, detenmining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a commercially useful function, you must evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing and the DBE credit claimed for its performance of the work, and other relevant factors. (2) A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, you must examine similar transactions, particularly those in which DBEs do not participate. (3) If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, you must presume that it is not performing a commercially useful function. (4) When a DBE is presumed not to be perfonming a commercially useful function as provided in paragraph (c)(3) of this section, the DBE may present evidence to rebut this presumption. You may determine that the firm is performing a commercially useful function given the type of work involved and normal industry practices. (5) Your decisions on commercially useful function matters are subject to review by the concerned operating administration, but are not administratively appealable to DOT. (d) Use the following factors in determining whether a DBE trucking company is performing a commercially useful function: (1) The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting DBE goals. (2) The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the contract. (3) The DBE receives credit for the total value of the transportation services it provides on the contract using trucks it owns, insures, and operates using drivers it employs. (4) The DBE may lease trucks from another DBE finm, including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the contract. (5) The DBE may also lease trucks from a non-DBE firm, including from an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE lessees not to exceed the value of transportation services provided by DBE-owned trucks on the contract. Additional participation by non-DBE lessees receives credit only for the fee or commission it receives as a result of the lease arrangement. If a recipient chooses this approach, it must obtain written consent from the appropriate Department Operating Administration. Example to this paragraph (d)(5): DBE Firm X uses two of its own trucks on a contract. It leases two trucks from DBE Firm Y and six trucks from non-DBE Firm Z. DBE credit would be awarded for the total value of transportation services provided by Finm X and Firm Y, and may also be awarded for the total value of transportation services provided by four of the six trucks provided by Firm Z. In all, full credit would be allowed for the participation of eight trucks. With respect to the other two trucks provided by Firm Z, DBE credit could be awarded only for the fees or commissions pertaining to those trucks Firm X receives as a result of the lease with Firm Z. (6) For purposes of this paragraph (d), a lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so 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 DB E. (e) Count expenditures with DBEs for materials or supplies toward DBE goals as provided in the following: Page 20 of 50 185 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (1) (i) If the materials or supplies are obtained from a DBE manufacturer, count 100 percent of the cost of the materials or supplies toward DBE goals. (ii) For purposes of this paragraph (e)(1 ), a manufacturer is a finm that operates or maintains a factory or establishment that produces, on the premises, the materials, supplies, articles, or equipment required under the contract and of the general character described by the specifications. (2) (i) If the materials or supplies are purchased from a DBE regular dealer, count 60 percent of the cost of the materials or supplies toward DBE goals. (ii) For purposes of this section, a 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 specifications and required under the contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. (A) To be a regular dealer, the finm 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. (B) A person may be a regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone, or asphalt without owning, operating, or maintaining a place of business as provided in this paragraph (e)(2)(ii) if the person both owns and operates distribution equipment for the products. Any supplementing of regular dealers' own distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis. (C) Packagers, brokers, manufacturers' representatives, or other persons who arrange or expedite transactions are not regular dealers within the meaning of this paragraph (e)(2). (3) With respect to materials or supplies purchased from a DBE which is neither a manufacturer nor a regular dealer, count the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on a job site, toward DBE goals, provided you determine the fees to be reasonable and not excessive as compared with fees customarily allowed for similar services. Do not count any portion of the cost of the materials and supplies themselves toward DBE goals, however. (f) If a firm is not currently certified as a DBE in accordance with the standards of subpart D of this part at the time of the execution of the contract, do not count the firm's participation toward any DBE goals, except as provided for in §26.87(i)). (g) Do not count the dollar value of work performed under a contract with a firm after it has ceased to be certified toward your overall goal. (h) Do not count the participation of a DBE subcontractor toward a contractor's final compliance with its DBE obligations on a contract until the amount being counted has actually been paid to the DBE. [64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003] Subpart D-Certification Standards § 26.61 How are burdens of proof allocated in the certification process? (a) In detenmining whether to certify a firm as eligible to participate as a DBE, you must apply the standards of this subpart. (b) The firm seeking certification has the burden of demonstrating to you, by a preponderance of the evidence, that it meets the requirements of this subpart concerning group membership or individual disadvantage, business size, ownership, and control. (c) You must rebuttably presume that members of the designated groups identified in §26.67(a) are socially and economically disadvantaged. This means they do not have the burden of proving to you that they are socially and economically disadvantaged. In order to obtain the benefit of the rebuttable presumption, individuals must submit a signed, notarized statement that they are a member of one of the groups in §26.67(a). Applicants do have the obligation to provide you information concerning their economic disadvantage (see §26.67). (d) Individuals who are not presumed to be socially and economically disadvantaged, and individuals concerning whom the presumption of disadvantage has been rebutted, have the burden of proving to you, by a Page 21 of 50 186 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs preponderance of the evidence, that they are socially and economically disadvantaged. (See Appendix E of this part.) (e) You must make determinations concerning whether individuals and firms have met their burden of demonstrating group membership, ownership, control, and social and economic disadvantage (where disadvantage must be demonstrated on an individual basis) by considering all the facts in the record, viewed as a whole. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35554, June 16, 2003) § 26.63 What rules govern group membership determinations? (a) (1) If, after reviewing the signed notarized statement of membership in a presumptively disadvantaged group (see §26.61 (c)), you have a well founded reason to question the individual's claim of membership in that group, you must require the individual to present additional evidence that he or she is a member of the group. (2) You must provide the individual a written explanation of your reasons for questioning his or her group membership and a written request for additional evidence as outlined in paragraph (b) of this section. (3) In implementing this section, you must take special care to ensure that you do not impose a disproportionate burden on members of any particular designated group. Imposing a disproportionate burden on members of a particular group could violate §26.7(b) and/or Title VI of the Civil Rights Act of 1964 and 49 CFR part 21. (b) In making such a determination, you must consider whether the person has held himself out to be a member of the group over a long period of time prior to application for certification and whether the person is regarded as a member of the group by the relevant community. You may require the applicant to produce appropriate documentation of group membership. ( 1) If you determine that an individual claiming to be a member of a group presumed to be disadvantaged is not a member of a designated disadvantaged group, the individual must demonstrate social and economic disadvantage on an individual basis. (2) Your decisions concerning membership in a designated group are subject to the certification appeals procedure of §26.89. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35554, June 16, 2003] § 26.65 What rules govern business size determinations? (a) To be an eligible DBE, a firm (including its affiliates) must be an existing small business, as defined by Small Business Administration (SBA) standards. As a recipient, you must apply current SBA business size standard(s) found in 13 CFR part 121 appropriate to the type(s) of work the firm seeks to perform in DOT-assisted contracts. (b) Even if it meets the requirements of paragraph (a) of this section, a firm is not an eligible DBE in any Federal fiscal year if the firm (including its affiliates) has had average annual gross receipts, as defined by SBA regulations (see 13 CFR 121.402), over the firm's previous three fiscal years, in excess of $22.41 million. (c) The Department adjusts the number in paragraph (b) of this section annually using the Department of Commerce price deflators for purchases by State and local governments as the basis for this adjustment. [74 FR 15224, Apr. 3, 2009] § 26.67 What rules determine social and economic disadvantage? (a) Presumption of disadvantage. (1) You must rebuttably presume that citizens of the United States (or lawfully admitted permanent residents) who are women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or other minorities found to be disadvantaged by the SBA, are socially and economically disadvantaged individuals. You must require applicants to submit a signed, notarized certification that each presumptively disadvantaged owner is, in fact, socially and economically disadvantaged. (2) (i) You must require each individual owner of a firm applying to participate as a DBE, whose ownership and control are relied upon for DBE certification to certify that he or she has a personal net worth that does not exceed $1.32 million. Page 22 of 50 187 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (ii) You must require each individual who makes this certification to support it with a signed, notarized statement of personal net worth, with appropriate supporting documentation. This statement and documentation must not be unduly lengthy, burdensome, or intrusive. (iii) In determining an individual's net worth, you must observe the following requirements: (A) Exclude an individual's ownership interest in the applicant firm; (B) Exclude the individual's equity in his or her primary residence (except any portion of such equity that is attributable to excessive withdrawals from the applicant firm). (C) Do not use a contingent liability to reduce an individual's net worth. (D) With respect to assets held in vested pension plans, Individual Retirement Accounts, 401(k} accounts, or other retirement savings or investment programs in which the assets cannot be distributed to the individual at the present time without significant adverse tax or interest consequences, include only the present value of such assets, less the tax and interest penalties that would accrue if the asset were distributed at the present time. (iv) Notwithstanding any provision of Federal or state law, you must not release an individual's personal net worth statement nor any documents pertaining to it to any third party without the written consent of the submitter. Provided, that you must transmit this information to DOT in any certification appeal proceeding under section 26.89 of this part or to any other state to which the individual's firm has applied for certification under §26.85 of this part. (b) Rebuttal of presumption of disadvantage. ( 1) If the statement of personal net worth that an individual submits under paragraph (a)(2) of this section shows that the individual's personal net worth exceeds $1.32 million, the individual's presumption of economic disadvantage is rebutted. You are not required to have a proceeding under paragraph (b)(2) of this section in order to rebut the presumption of economic disadvantage in this case. (2) If you have a reasonable basis to believe that an individual who is a member of one of the designated groups is not, in fact, socially and/or economically disadvantaged you may, at any time, start a proceeding to determine whether the presumption should be regarded as rebutted with respect to that individual. Your proceeding must follow the procedures of §26.87. (3) In such a proceeding, you have the burden of demonstrating, by a preponderance of the evidence, that the individual is not socially and economically disadvantaged. You may require the individual to produce information relevant to the determination of his or her disadvantage. (4) When an individual's presumption of social and/or economic disadvantage has been rebutted, his or her ownership and control of the firm in question cannot be used for purposes of DBE eligibility under this subpart unless and until he or she makes an individual showing of social and/or economic disadvantage. If the basis for rebutting the presumption is a determination that the individual's personal net worth exceeds $1.32 million, the individual is no longer eligible for participation in the program and cannot regain eligibility by making an individual showing of disadvantage. (c) [Reserved) (d) Individual determinations of social and economic disadvantage. Firms owned and controlled by individuals who are not presumed to be socially and economically disadvantaged (including individuals whose presumed disadvantage has been rebutted) may apply for DBE certification. You must make a case-by-case determination of whether each individual whose ownership and control are relied upon for DBE certification is socially and economically disadvantaged. In such a proceeding, the applicant firm has the burden of demonstrating to you, by a preponderance of the evidence, that the individuals who own and control it are socially and economically disadvantaged. An individual whose personal net worth exceeds $1.32 million shall not be deemed to be economically disadvantaged. In making these determinations, use the guidance found in Appendix E of this part. You must require that applicants provide sufficient information to permit determinations under the guidance of Appendix E of this part. [64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 68 FR 35554, June 16, 2003; 76 FR 5099, Jan. 28, 2011) § 26.69 What rules govern determinations of ownership? (a) In determining whether the socially and economically disadvantaged participants in a firm own the firm, you must consider all the facts in the record, viewed as a whole. Page 23 of 50 188 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (b) To be an eligible DBE, a firm must be at least 51 percent owned by socially and economically disadvantaged individuals. (1) In the case of a corporation, such individuals must own at least 51 percent of the each class of voting stock outstanding and 51 percent of the aggregate of all stock outstanding. (2) In the case of a partnership, 51 percent of each class of partnership interest must be owned by socially and economically disadvantaged individuals. Such ownership must be reflected in the firm's partnership agreement (3) In the case of a limited liability company, at least 51 percent of each class of member interest must be owned by socially and economically disadvantaged individuals. (c) The finm's ownership by socially and economically disadvantaged individuals must be real, substantial, and continuing, going beyond pro forma ownership of the firm as reflected in ownership documents. The disadvantaged owners must enjoy the customary incidents of ownership, and share in the risks and profits commensurate with their ownership interests, as demonstrated by the substance, not merely the form, of arrangements. (d) All securities that constitute ownership of a firm shall be held directly by disadvantaged persons. Except as provided in this paragraph (d), no securities or assets held in trust, or by any guardian for a minor, are considered as held by disadvantaged persons in determining the ownership of a firm. However, securities or assets held in trust are regarded as held by a disadvantaged individual for purposes of determining ownership of the firm, if- (1) The beneficial owner of securities or assets held in trust is a disadvantaged individual, and the trustee is the same or another such individual; or (2) The beneficial owner of a trust is a disadvantaged individual who, rather than the trustee, exercises effective control over the management, policy-making, and daily operational activities of the firm. Assets held in a revocable living trust may be counted only in the situation where the same disadvantaged individual is the sole grantor, beneficiary, and trustee. (e) The contributions of capital or expertise by the socially and economically disadvantaged owners to acquire their ownership interests must be real and substantial. Examples of insufficient contributions include a promise to contribute capital, an unsecured note payable to the firm or an owner who is not a disadvantaged individual, or mere participation in a firm's activities as an employee. Debt instruments from financial institutions or other organizations that lend funds in the nonmal course of their business do not render a firm ineligible, even if the debtor's ownership interest is security for the loan. (f) The following requirements apply to situations in which expertise is relied upon as part of a disadvantaged owner's contribution to acquire ownership: (1) The owner's expertise must be- (i) In a specialized field; (ii) Of outstanding quality; (iii) In areas critical to the firm's operations; (iv) Indispensable to the firm's potential success; (v) Specific to the type of work the firm performs; and (vi) Documented in the records of the firm. These records must clearly show the contribution of expertise and its value to the firm. (2) The individual whose expertise is relied upon must have a significant financial investment in the firm. (g) You must always deem as held by a socially and economically disadvantaged individual, for purposes of determining ownership, all interests in a business or other assets obtained by the individual- (1) As the result of a final property settlement or court order in a divorce or legal separation, provided that no term or condition of the agreement or divorce decree is inconsistent with this section; or (2) Through inheritance, or otherwise because of the death of the former owner. (h) (1) You must presume as not being held by a socially and economically disadvantaged individual, for purposes of determining ownership, all interests in a business or other assets obtained by the individual as the result of a gift, or transfer without adequate consideration, from any non-disadvantaged individual or non-DBE firm who is- Page 24 of 50 189 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (i) Involved in the same firm for which the individual is seeking certification, or an affiliate of that firm; (ii) Involved in the same or a similar line of business; or (iii) Engaged in an ongoing business relationship with the firm, or an affiliate of the firm, for which the individual is seeking certification. (2) To overcome this presumption and permit the interests or assets to be counted, the disadvantaged individual must demonstrate to you, by clear and convincing evidence, that- (i) The gift or transfer to the disadvantaged individual was made for reasons other than obtaining certification as a DBE; and (ii) The disadvantaged individual actually controls the management, policy, and operations of the firm, notwithstanding the continuing participation of a non-disadvantaged individual who provided the gift or transfer. (i) You must apply the following rules in situations in which marital assets form a basis for ownership of a firm: (1) When marital assets (other than the assets of the business in question), held jointly or as community property by both spouses, are used to acquire the ownership interest asserted by one spouse, you must deem the ownership interest in the firm to have been acquired by that spouse with his or her own individual resources, provided that the other spouse irrevocably renounces and transfers all rights in the ownership interest in the manner sanctioned by the laws of the state in which either spouse or the firm is domiciled. You do not count a greater portion of joint or community property assets toward ownership than state law would recognize as belonging to the socially and economically disadvantaged owner of the applicant firm. (2) A copy of the document legally transferring and renouncing the other spouse's rights in the jointly owned or community assets used to acquire an ownership interest in the firm must be included as part of the firm's application for DBE certification. U) You may consider the following factors in determining the ownership of a firm. However, you must not regard a contribution of capital as failing to be real and substantial, or find a firm ineligible, solely because- (1) A socially and economically disadvantaged individual acquired his or her ownership interest as the result of a gift, or transfer without adequate consideration, other than the types set forth in paragraph (h) of this section; (2) There is a provision for the co-signature of a spouse who is not a socially and economically disadvantaged individual on financing agreements, contracts for the purchase or sale of real or personal property, bank signature cards, or other documents; or (3) Ownership of the firm in question or its assets is transferred for adequate consideration from a spouse who is not a socially and economically disadvantaged individual to a spouse who is such an individual. In this case, you must give particularly close and careful scrutiny to the ownership and control of a firm to ensure that it is owned and controlled, in substance as well as in form, by a socially and economically disadvantaged individual. § 26.71 What rules govern determinations concerning control? (a) In determining whether socially and economically disadvantaged owners control a firm, you must consider all the facts in the record, viewed as a whole. (b) Only an independent business may be certified as a DBE. An independent business is one the viability of which does not depend on its relationship with another firm or firms. (1) In determining whether a potential DBE is an independent business, you must scrutinize relationships with non-DBE firms, in such areas as personnel, facilities, equipment, financial and/or bonding support, and other resources. (2) You must consider whether present or recent employer/employee relationships between the disadvantaged owner(s) of the potential DBE and non-DBE firms or persons associated with non-DBE firms compromise the independence of the potential DBE firm. (3) You must examine the firm's relationships with prime contractors to determine whether a pattern of exclusive or primary dealings with a prime contractor compromises the independence of the potential DBE firm. (4) In considering factors related to the independence of a potential DBE firm, you must consider the consistency of relationships between the potential DBE and non-DBE firms with normal industry practice. Page 25 of 50 190 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (c) A DBE firm must not be subject to any formal or informal restrictions which limit the customary discretion of the socially and economically disadvantaged owners. There can be no restrictions through corporate charter provisions, by-law provisions, contracts or any other formal or informal devices (e.g., cumulative voting rights, voting powers attached to different classes of stock, employment contracts, requirements for concurrence by non-disadvantaged partners, conditions precedent or subsequent, executory agreements, voting trusts, restrictions on or assignments of voting rights) that prevent the socially and economically disadvantaged owners, without the cooperation or vote of any non-disadvantaged individual, from making any business decision of the firm. This paragraph does not preclude a spousal co-signature on documents as provided for in §26.690)(2). (d) The socially and economically disadvantaged owners must possess the power to direct or cause the direction of the management and policies of the firm and to make day-to-day as well as long-term decisions on matters of management, policy and operations. (1) A disadvantaged owner must hold the highest officer position in the company (e.g., chief executive officer or president). (2) In a corporation, disadvantaged owners must control the board of directors. (3) In a partnership, one or more disadvantaged owners must serve as general partners, with control over all partnership decisions. (e) Individuals who are not socially and economically disadvantaged may be involved in a DBE firm as owners, managers, employees, stockholders, officers, and/or directors. Such individuals must not, however, possess or exercise the power to control the firm, or be disproportionately responsible for the operation of the firm. (f) The socially and economically disadvantaged owners of the firm may delegate various areas of the management, policymaking, or daily operations of the firm to other participants in the firm, regardless of whether these participants are socially and economically disadvantaged individuals. Such delegations of authority must be revocable, and the socially and economically disadvantaged owners must retain the power to hire and fire any person to whom such authority is delegated. The managerial role of the socially and economically disadvantaged owners in the firm's overall affairs must be such that the recipient can reasonably conclude that the socially and economically disadvantaged owners actually exercise control over the firm's operations, management, and policy. (g) The socially and economically disadvantaged owners must have an overall understanding of, and managerial and technical competence and experience directly related to, the type of business in which the firm is engaged and the firm's operations. The socially and economically disadvantaged owners are not required to have experience or expertise in every critical area of the firm's operations, or to have greater experience or expertise in a given field than managers or key employees. The socially and economically disadvantaged owners must have the ability to intelligently and critically evaluate information presented by other participants in the firm's activities and to use this information to make independent decisions concerning the firm's daily operations, management, and policymaking. Generally, expertise limited to office management, administration, or bookkeeping functions unrelated to the principal business activities of the firm is insufficient to demonstrate control. (h) If state or local law requires the persons to have a particular license or other credential in order to own and/or control a certain type of firm, then the socially and economically disadvantaged persons who own and control a potential DBE firm of that type must possess the required license or credential. If state or local law does not require such a person to have such a license or credential to own and/or control a firm, you must not deny certification solely on the ground that the person lacks the license or credential. However, you may take into account the absence of the license or credential as one factor in determining whether the socially and economically disadvantaged owners actually control the firm. (i) (1) You may consider differences in remuneration between the socially and economically disadvantaged owners and other participants in the firm in determining whether to certify a firm as a DB E. Such consideration shall be in the context of the duties of the persons involved, normal industry practices, the firm's policy and practice concerning reinvestment of income, and any other explanations for the differences proffered by the firm. You may determine that a firm is controlled by its socially and economically disadvantaged owner although that owner's remuneration is lower than that of some other participants in the firm. (2) In a case where a non-disadvantaged individual formerly controlled the firm, and a socially and economically disadvantaged individual now controls it, you may consider a difference between the remuneration of the former and current controller of the firm as a factor in determining who controls the firm, particularly when the non-disadvantaged individual remains involved with the firm and continues to receive greater compensation than the disadvantaged individual. Page 26 of 50 191 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs 0) In order to be viewed as controlling a firm, a socially and economically disadvantaged owner cannot engage in outside employment or other business interests that conflict with the management of the firm or prevent the individual from devoting sufficient time and attention to the affairs of the firm to control its activities. For example, absentee ownership of a business and part-time work in a full-time firm are not viewed as constituting controL However, an individual could be viewed as controlling a part-time business that operates only on evenings and/or weekends, if the individual controls it all the time it is operating. (k) ( 1) A socially and economically disadvantaged individual may control a firm even though one or more of the individual's immediate family members (who themselves are not socially and economically disadvantaged individuals) participate in the firm as a manager, employee, owner, or in another capacity. Except as otherwise provided in this paragraph, you must make a judgment about the control the socially and economically disadvantaged owner exercises vis-a-vis other persons involved in the business as you do in other situations, without regard to whether or not the other persons are immediate family members. (2) If you cannot determine that the socially and economically disadvantaged owners-as distinct from the family as a whole-control the firm, then the socially and economically disadvantaged owners have failed to carry their burden of proof concerning control, even though they may participate significantly in the firm's activities. (I) Where a firm was formerly owned and/or controlled by a non-disadvantaged individual (whether or not an immediate family member), ownership and/or control were transferred to a socially and economically disadvantaged individual, and the non-disadvantaged individual remains involved with the firm in any capacity, the disadvantaged individual now owning the firm must demonstrate to you, by clear and convincing evidence, that: (1) The transfer of ownership and/or control to the disadvantaged individual was made for reasons other than obtaining certification as a DBE; and (2) The disadvantaged individual actually controls the management, policy, and operations of the firm, notwithstanding the continuing participation of a non-disadvantaged individual who formerly owned and/or controlled the ftrm. (m) In determining whether a firm is controlled by its socially and economically disadvantaged owners, you may consider whether the firm owns equipment necessary to perform its work. However, you must not determine that a firm is not controlled by socially and economically disadvantaged individuals solely because the firm leases, rather than owns, such equipment, where leasing equipment is a normal industry practice and the lease does not involve a relationship with a prime contractor or other party that compromises the independence of the firm. (n) You must grant certification to a firm only for specific types of work in which the socially and economically disadvantaged owners have the ability to control the firm. To become certified in an additional type of work, the firm need demonstrate to you only that its socially and economically disadvantaged owners are able to control the firm with respect to that type of work. You must not require that the firm be recertified or submit a new application for certification, but you must verify the disadvantaged owner's control of the firm in the additional type of work. ( 1) The types of work a firm can perform (whether on initial certification or when a new type of work is added) must be described in terms of the most specific available NAICS code for that type of work. If you choose, you may also, in addition to applying the appropriate NAICS code, apply a descriptor from a classification scheme of equivalent detail and specificity. A correct NAICS code is one that describes, as specifically as possible, the principal goods or services which the firm would provide to DOT recipients. Multiple NAICS codes may be assigned where appropriate. Program participants must rely on, and not depart from, the plain meaning of NAICS code descriptions in determining the scope of a firm's certification. If your Directory does not list types of work for any firm in a manner consistent with this paragraph (a)(1 ), you must update the Directory entry for that firm to meet the requirements of this paragraph (a)(1) by August 28, 2011. (2) Firms and recipients must check carefully to make sure that the NAICS codes cited in a certification are kept up-to-date and accurately reflect work which the UCP has determined the firm's owners can controL The firm bears the burden of providing detailed company information the certifying agency needs to make an appropriate NAICS code designation. (3) If a firm believes that there is not a NAICS code that fully or clearly describes the type(s) of work in which it is seeking to be certified as a DBE, the firm may request that the certifying agency, in its certification documentation, supplement the assigned NAICS code(s) with a clear, specific, and detailed narrative description of the type of work in which the firm is certified. A vague, general, or confusing description is not sufficient for this purpose, and recipients should not rely on such a description in determining whether a firm's participation can be counted toward DBE goals. Page 27 of 50 192 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (4) A certifier is not precluded from changing a certification classification or description if there is a factual basis in the record. However, certifiers must not make after-the-fact statements about the scope of a certification, not supported by evidence in the record of the certification action. (o) A business operating under a franchise or license agreement may be certified if it meets the standards in this subpart and the franchiser or licenser is not affiliated with the franchisee or licensee. In determining whether affiliation exists, you should generally not consider the restraints relating to standardized quality, advertising, accounting format, and other provisions imposed on the franchisee or licensee by the franchise agreement or license, provided that the franchisee or licensee has the right to profit from its efforts and bears the risk of loss commensurate with ownership. Alternatively, even though a franchisee or licensee may not be controlled by virtue of such provisions in the franchise agreement or license, affiliation could arise through other means, such as common management or excessive restrictions on the sale or transfer of the franchise interest or license. (p) In order for a partnership to be controlled by socially and economically disadvantaged individuals, any non- disadvantaged partners must not have the power, without the specific written concurrence of the socially and economically disadvantaged partner(s), to contractually bind the partnership or subject the partnership to contract or tort liability. (q) The socially and economically disadvantaged individuals controlling a firm may use an employee leasing company. The use of such a company does not preclude the socially and economically disadvantaged individuals from controlling their firm if they continue to maintain an employer-employee relationship with the leased employees. This includes being responsible for hiring, firing, training, assigning, and otherwise controlling the on-the-job activities of the employees, as well as ultimate responsibility for wage and tax obligations related to the employees. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5099, Jan. 28, 2011) § 26.73 What are other rules affecting certification? (a) (1) Consideration of whether a firm performs a commercially useful function or is a regular dealer pertains solely to counting toward DBE goals the participation of firms that have already been certified as DBEs. Except as provided in paragraph (a)(2) of this section, you must not consider commercially useful function issues in any way in making decisions about whether to certify a firm as a DBE. (2) You may consider, in making certification decisions, whether a firm has exhibited a pattern of conduct indicating its involvement in attempts to evade or subvert the intent or requirements of the DBE program. (b) (1) You must evaluate the eligibility of a firm on the basis of present circumstances. You must not refuse to certify a firm based solely on historical information indicating a lack of ownership or control of the firm by socially and economically disadvantaged individuals at some time in the past, if the firm currently meets the ownership and control standards of this part. (2) You must not refuse to certify a firm solely on the basis that it is a newly formed firm, has not completed projects or contracts at the time of its application, has not yet realized profits from its activities, or has not demonstrated a potential for success. If the firm meets disadvantaged, size, ownership, and control requirements of this Part, the firm is eligible for certification. (c) DBE firms and firms seeking DBE certification shall cooperate fully with your requests (and DOT requests) for information relevant to the certification process. Failure or refusal to provide such information is a ground for a denial or removal of certification. (d) Only firms organized for profit may be eligible DBEs. Not-for-profit organizations, even though controlled by socially and economically disadvantaged individuals, are not eligible to be certified as DBEs. (e) An eligible DBE firm must be owned by individuals who are socially and economically disadvantaged. Except as provided in this paragraph, a firm that is not owned by such individuals, but instead is owned by another firm- even a DBE firm-cannot be an eligible DBE. (1) If socially and economically disadvantaged individuals own and control a firm through a parent or holding company, established for tax, capitalization or other purposes consistent with industry practice, and the parent or holding company in turn owns and controls an operating subsidiary, you may certify the subsidiary if it otherwise meets all requirements of this subpart. In this situation, the individual owners and controllers of the parent or holding company are deemed to control the subsidiary through the parent or holding company. Page 28 of 50 193 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (2) You may certify such a subsidiary only if there is cumulatively 51 percent ownership of the subsidiary by socially and economically disadvantaged individuals. The following examples illustrate how this cumulative ownership provision works: Example 1: Socially and economically disadvantaged individuals own 100 percent of a holding company, which has a wholly-owned subsidiary. The subsidiary may be certified, if it meets all other requirements. Example 2: Disadvantaged individuals own 100 percent of the holding company, which owns 51 percent of a subsidiary. The subsidiary may be certified, if all other requirements are met. Example 3: Disadvantaged individuals own 80 percent of the holding company, which in turn owns 70 percent of a subsidiary. In this case, the cumulative ownership of the subsidiary by disadvantaged individuals is 56 percent (80 percent of the 70 percent). This is more than 51 percent, so you may certify the subsidiary, if all other requirements are met. Example 4: Same as Example 2 or 3, but someone other than the socially and economically disadvantaged owners of the parent or holding company controls the subsidiary. Even though the subsidiary is owned by disadvantaged individuals, through the holding or parent company, you cannot certify it because it fails to meet control requirements. Example 5: Disadvantaged individuals own 60 percent of the holding company, which in turn owns 51 percent of a subsidiary. In this case, the cumulative ownership of the subsidiary by disadvantaged individuals is about 31 percent. This is less than 51 percent, so you cannot certify the subsidiary. Example 6: The holding company, in addition to the subsidiary seeking certification, owns several other companies. The combined gross receipts of the holding companies and its subsidiaries are greater than the size standard for the subsidiary seeking certification and/or the gross receipts cap of §26.65(b). Under the rules concerning affiliation, the subsidiary fails to meet the size standard and cannot be certified. (f) Recognition of a business as a separate entity for tax or corporate purposes is not necessarily sufficient to demonstrate that a firm is an independent business, owned and controlled by socially and economically disadvantaged individuals. (g) You must not require a DBE firm to be prequalified as a condition for certification unless the recipient requires all firms that participate in its contracts and subcontracts to be prequalified. (h) A firm that is owned by an Indian tribe or Native Hawaiian organization, rather than by Indians or Native Hawaiians as individuals, may be eligible for certification. Such a firm must meet the size standards of §26.35. Such a firm must be controlled by socially and economically disadvantaged individuals, as provided in §26. 71. (i) The following special rules apply to the certification of firms related to Alaska Native Corporations (ANCs). (1) Notwithstanding any other provisions of this subpart, a direct or indirect subsidiary corporation, joint venture, or partnership entity of an ANC is eligible for certification as a DBE if it meets all of the following requirements: (i) The Settlement Common Stock of the underlying ANC and other stock of the ANC held by holders of the Settlement Common Stock and by Natives and descendents of Natives represents a majority of both the total equity of the ANC and the total voting power of the corporation for purposes of electing directors; (ii) The shares of stock or other units of common ownership interest in the subsidiary, joint venture, or partnership entity held by the ANC and by holders of its Settlement Common Stock represent a majority of both the total equity of the entity and the total voting power of the entity for the purpose of electing directors, the general partner, or principal officers; and (iii) The subsidiary, joint venture, or partnership entity has been certified by the Small Business Administration under the 8(a} or small disadvantaged business program. (2) As a recipient to whom an ANC-related entity applies for certification, you do not use the DOT uniform application form (see Appendix F of this part). You must obtain from the firm documentation sufficient to demonstrate that entity meets the requirements of paragraph (i)(1) of this section. You must also obtain sufficient information about the firm to allow you to administer your program (e.g., information that would appear in your DBE Directory). Page 29 of 50 194 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (3) If an ANC-related firm does not meet all the conditions of paragraph (i)(1) of this section, then it must meet the requirements of paragraph (h) of this section in order to be certified, on the same basis as firms owned by Indian Tribes or Native Hawaiian Organizations. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003; 76 FR 5099, Jan. 28, 2011] Subpart E-Certification Procedures § 26.81 What are the requirements for Unified Certification Programs? (a) You and all other DOT recipients in your state must participate in a Unified Certification Program (UCP). (1) Within three years of March 4, 1999, you and the other recipients in your state must sign an agreement establishing the UCP for that state and submit the agreement to the Secretary for approval. The Secretary may, on the basis of extenuating circumstances shown by the recipients in the state, extend this deadline for no more than one additional year. (2) The agreement must provide for the establishment of a UCP meeting all the requirements of this section. The agreement must specify that the UCP will follow all certification procedures and standards of this part, on the same basis as recipients; that the UCP shall cooperate fully with oversight, review, and monitoring activities of DOT and its operating administrations; and that the UCP shall implement DOT directives and guidance concerning certification matters. The agreement shall also commit recipients to ensuring that the UCP has sufficient resources and expertise to carry out the requirements of this part. The agreement shall include an implementation schedule ensuring that the UCP is fully operational no later than 18 months following the approval of the agreement by the Secretary. (3) Subject to approval by the Secretary, the UCP in each state may take any form acceptable to the recipients in that state. (4) The Secretary shall review the UCP and approve it, disapprove it, or remand it to the recipients in the state for revisions. A complete agreement which is not disapproved or remanded within 180 days of its receipt is deemed to be accepted. (5) If you and the other recipients in your state fail to meet the deadlines set forth in this paragraph (a), you shall have the opportunity to make an explanation to the Secretary why a deadline could not be met and why meeting the deadline was beyond your control. If you fail to make such an explanation, or the explanation does not justify the failure to meet the deadline, the Secretary shall direct you to complete the required action by a date certain. If you and the other recipients fail to carry out this direction in a timely manner, you are collectively in noncompliance with this part. (b) The UCP shall make all certification decisions on behalf of all DOT recipients in the state with respect to participation in the DOT DBE Program. (1) Certification decisions by the UCP shall be binding on all DOT recipients within the state. (2) The UCP shall provide "one-stop shopping" to applicants for certification, such that an applicant is required to apply only once for a DBE certification that will be honored by all recipients in the state. (3) All obligations of recipients with respect to certification and nondiscrimination must be carried out by UCPs, and recipients may use only UCPs that comply with the certification and nondiscrimination requirements of this part. (c) All certifications by UCPs shall be pre-certifications; i.e., certifications that have been made final before the due date for bids or offers on a contract on which a firm seeks to participate as a DBE. (d) A UCP is not required to process an application for certification from a firm having its principal place of business outside the state if the firm is not certified by the UCP in the state in which it maintains its principal place of business. The "home state" UCP shall share its information and documents concerning the firm with other UCPs that are considering the firm's application. (e) Subject to DOT approval as provided in this section, the recipients in two or more states may form a regional UCP. UCPs may also enter into written reciprocity agreements with other UCPs. Such an agreement shall outline the specific responsibilities of each participant. A UCP may accept the certification of any other UCP or DOT recipient. Page 30 of 50 195 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (f) Pending the establishment of UCPs meeting the requirements of this section, you may enter into agreements with other recipients, on a regional or inter-jurisdictional basis, to perform certification functions required by this part. You may also grant reciprocity to other recipient's certification decisions. (g) Each UCP shall maintain a unified DBE directory containing, for all firms certified by the UCP (including those from other states certified under the provisions of this part), the information required by §26.31. The UCP shall make the directory available to the public electronically, on the internet, as well as in print The UCP shall update the electronic version of the directory by including additions, deletions, and other changes as soon as they are made and shall revise the print version of the Directory at least once a year. (h) Except as otherwise specified in this section, all provisions of this subpart and subpart D of this part pertaining to recipients also apply to UCPs. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5100, Jan. 28, 2011) § 26.83 What procedures do recipients follow in making certification decisions? (a) You must ensure that only firms certified as eligible DBEs under this section participate as DBEs in your program. (b) You must determine the eligibility of firms as DBEs consistent with the standards of subpart D of this part. When a UCP is formed, the UCP must meet all the requirements of subpart D of this part and this subpart that recipients are required to meet (c) You must take all the following steps in determining whether a DBE firm meets the standards of subpart D of this part: (1) Perform an on-site visit to the offices of the firm. You must interview the principal officers of the firm and review their resumes and/or work histories. You must also perform an on-site visit to job sites if there are such sites on which the firm is working at the time of the eligibility investigation in your jurisdiction or local area. You may rely upon the site visit report of any other recipient with respect to a firm applying for certification; (2) If the firm is a corporation, analyze the ownership of stock in the firm; (3) Analyze the bonding and financial capacity of the firm; (4) Determine the work history of the firm, including contracts it has received and work it has completed; (5) Obtain a statement from the firm of the type of work it prefers to perform as part of the DBE program and its preferred locations for performing the work, if any; (6) Obtain or compile a list of the equipment owned by or available to the firm and the licenses the firm and its key personnel possess to perform the work it seeks to do as part of the DBE program; (7) Require potential DBEs to complete and submit an appropriate application form, unless the potential DBE is an SBA certified firm applying pursuant to the DOT/SBA MOU. (i) You must use the application form provided in Appendix F to this part without change or revision. However, you may provide in your DBE program, with the approval of the concerned operating administration, for supplementing the form by requesting additional information not inconsistent with this part. (ii) You must make sure that the applicant attests to the accuracy and truthfulness of the information on the application form. This shall be done either in the form of an affidavit sworn to by the applicant before a person who is authorized by state law to administer oaths or in the form of an unsworn declaration executed under penalty of perjury of the laws of the United States. (iii) You must review all information on the form prior to making a decision about the eligibility of the firm. (d) When another recipient, in connection with its consideration of the eligibility of a firm, makes a written request for certification information you have obtained about that firm (e.g., including application materials or the report of a site visit, if you have made one to the firm), you must promptly make the information available to the other recipient (e) [Reserved) (f) Subject to the approval of the concerned operating administration as part of your DBE program, you may impose a reasonable application fee for certification. Fee waivers shall be made in appropriate cases. Page 31 of 50 196 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (g) You must safeguard from disclosure to unauthorized persons information gathered as part of the certification process that may reasonably be regarded as proprietary or other confidential business information, consistent with applicable Federal, state, and local law. (h) Once you have certified a DBE, it shall remain certified until and unless you have removed its certification, in whole or in part, through the procedures of section 26.87. You may not require DBEs to reapply for certification or require "recertification" of currently certified firms. However, you may conduct a certification review of a certified DBE firm, including a new on-site review, three years from the date of the firm's most recent certification, or sooner if appropriate in light of changed circumstances (e.g., of the kind requiring notice under paragraph (i) of this section), a complaint, or other information concerning the firm's eligibility. If you have grounds to question the firm's eligibility, you may conduct an on-site review on an unannounced basis, at the firm's offices and jobsites. (i) If you are a DBE, you must inform the recipient or UCP in writing of any change in circumstances affecting your ability to meet size, disadvantaged status, ownership, or control requirements of this part or any material change in the information provided in your application form. (1) Changes in management responsibility among members of a limited liability company are covered by this requirement. (2) You must attach supporting documentation describing in detail the nature of such changes. (3) The notice must take the form of an affidavit sworn to by the applicant before a person who is authorized by state law to administer oaths or of an unsworn declaration executed under penalty of perjury of the laws of the United States. You must provide the written notification within 30 days of the occurrence of the change. If you fail to make timely notification of such a change, you will be deemed to have failed to cooperate under §26.109(c). 0) If you are a DBE, you must provide to the recipient, every year on the anniversary of the date of your certification, an affidavit sworn to by the firm's owners before a person who is authorized by state law to administer oaths or an unsworn declaration executed under penalty of perjury of the laws of the United States. This affidavit must affirm that there have been no changes in the firm's circumstances affecting its ability to meet size, disadvantaged status, ownership, or control requirements of this part or any material changes in the information provided in its application form, except for changes about which you have notified the recipient under paragraph (i) of this section. The affidavit shall specifically affirm that your firm continues to meet SBA business size criteria and the overall gross receipts cap of this part, documenting this affirmation with supporting documentation of your firm's size and gross receipts. If you fail to provide this affidavit in a timely manner, you will be deemed to have failed to cooperate under §26.109(c). (k) If you are a recipient, you must make decisions on applications for certification within 90 days of receiving from the applicant firm all information required under this part. You may extend this time period once, for no more than an additional 60 days, upon written notice to the firm, explaining fully and specifically the reasons for the extension. You may establish a different time frame in your DBE program, upon a showing that this time frame is not feasible, and subject to the approval of the concerned operating administration. Your failure to make a decision by the applicable deadline under this paragraph is deemed a constructive denial of the application, on the basis of which the firm may appeal to DOT under §26.89. (I) As a recipient or UCP, you must advise each applicant within 30 days from your receipt of the application whether the application is complete and suitable for evaluation and, if not, what additional information or action is required. (m) Except as otherwise provided in this paragraph, if an applicant for DBE certification withdraws its application before you have issued a decision on the application, the applicant can resubmit the application at any time. As a recipient or UCP, you may not apply the waiting period provided under §26.86(c) of this part before allowing the applicant to resubmit its application. However, you may place the reapplication at the "end of the line," behind other applications that have been made since the firm's previous application was withdrawn. You may also apply the waiting period provided under §26.86(c) of this part to a firm that has established a pattern of frequently withdrawing applications before you make a decision. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003; 76 FR 5100, Jan. 28, 2011) § 26.85 Interstate certification. (a) This section applies with respect to any firm that is currently certified in its home state. Page 32 of 50 197 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (b) When a firm currently certified in its home state ("State A") applies to another State ("State B") for DBE certification, State B may, at its discretion, accept State A's certification and certify the firm, without further procedures. (1) To obtain certification in this manner, the firm must provide to State B a copy of its certification notice from State A. (2) Before certifying the firm, State B must confirm that the firm has a current valid certification from State A. State B can do so by reviewing State A's electronic directory or obtaining written confirmation from State A. (c) In any situation in which State B chooses not to accept State A's certification of a firm as provided in paragraph (b) of this section, as the applicant firm you must provide the information in paragraphs (c)(1) through (4) of this section to State B. (1) You must provide to State B a complete copy of the application form, all supporting documents, and any other information you have submitted to State A or any other state related to your firm's certification. This includes affidavits of no change (see §26.830)) and any notices of changes (see §26.83(i)) that you have submitted to State A, as well as any correspondence you have had with State A's UCP or any other recipient concerning your application or status as a DBE firm. (2) You must also provide to State B any notices or correspondence from states other than State A relating to your status as an applicant or certified DBE in those states. For example, if you have been denied certification or decertified in State C, or subject to a decertification action there, you must inform State B of this fact and provide all documentation concerning this action to State B. (3) If you have filed a certification appeal with DOT (see §26.89), you must inform State B of the fact and provide your letter of appeal and DOT's response to State B. (4) You must submit an affidavit sworn to by the firm's owners before a person who is authorized by State law to administer oaths or an unsworn declaration executed under penalty of perjury of the laws of the United States. (i) This affidavit must affirm that you have submitted all the information required by 49 CFR 26.85(c) and the information is complete and, in the case of the information required by §26.85(c)(1 ), is an identical copy of the information submitted to State A. (ii) If the on-site report from State A supporting your certification in State A is more than three years old, as of the date of your application to State B, State B may require that your affidavit also affirm that the facts in the on-site report remain true and correct. (d) As State B, when you receive from an applicant firm all the information required by paragraph (c) of this section, you must take the following actions: (1) Within seven days contact State A and request a copy of the site visit review report for the firm (see §26.83(c)(1 )), any updates to the site visit review, and any evaluation of the firm based on the site visit. As State A, you must transmit this information to State B within seven days of receiving the request. A pattern by State B of not making such requests in a timely manner or by "State A" or any other State of not complying with such requests in a timely manner is noncompliance with this Part. (2) Determine whether there is good cause to believe that State A's certification of the firm is erroneous or should not apply in your State. Reasons for making such a determination may include the following: (i) Evidence that State A's certification was obtained by fraud; (ii) New information, not available to State A at the time of its certification, showing that the firm does not meet all eligibility criteria; (iii) State A's certification was factually erroneous or was inconsistent with the requirements of this part; (iv) The State law of State B requires a result different from that of the State law of State A. (v) The information provided by the applicant firm did not meet the requirements of paragraph (c) of this section. (3) If, as State B, unless you have determined that there is good cause to believe that State A's certification is erroneous or should not apply in your State, you must, no later than 60 days from the date on which you received from the applicant firm all the information required by paragraph (c) of this section, send to the applicant firm a notice that it is certified and place the firm on your directory of certified firms. Page 33 of 50 198 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (4) If, as State B, you have determined that there is good cause to believe that State A's certification is erroneous or should not apply in your State, you must, no later than 60 days from the date on which you received from the applicant firm all the information required by paragraph (c) of this section, send to the applicant firm a notice stating the reasons for your determination. (i) This notice must state with particularity the specific reasons why State B believes that the firm does not meet the requirements of this Part for DBE eligibility and must offer the firm an opportunity to respond to State B with respect to these reasons. (ii) The firm may elect to respond in writing, to request an in-person meeting with State B's decision maker to discuss State B's objections to the firm's eligibility, or both. If the firm requests a meeting, as State B you must schedule the meeting to take place within 30 days of receiving the firm's request. (iii) The firm bears the burden of demonstrating, by a preponderance of evidence, that it meets the requirements of this Part with respect to the particularized issues raised by State B's notice. The firm is not otherwise responsible for further demonstrating its eligibility to State B. (iv) The decision maker for State B must be an individual who is thoroughly familiar with the provisions of this Part concerning certification. (v) State B must issue a written decision within 30 days of the receipt of the written response from the firm or the meeting with the decision maker, whichever is later. (vi) The firm's application for certification is stayed pending the outcome of this process. (vii) A decision under this paragraph (d)(4) may be appealed to the Departmental Office of Civil Rights under s§26.89 of this part. (e) As State B, if you have not received from State A a copy of the site visit review report by a date 14 days after you have made a timely request for it, you may hold action required by paragraphs (d)(2) through (4) of this section in abeyance pending receipt of the site visit review report. In this event, you must, no later than 30 days from the date on which you received from an applicant firm all the information required by paragraph (c) of this section, notify the firm in writing of the delay in the process and the reason for it. (f) ( 1) As a UCP, when you deny a firm's application, reject the application of a firm certified in State A or any other State in which the firm is certified, through the procedures of paragraph (d)(4) of this section, or decertify a firm, in whole or in part, you must make an entry in the Department of Transportation Office of Civil Rights' (DOCR's) Ineligibility Determination Online Database. You must enter the following information: (i) The name of the firm; (ii) The name(s) of the firm's owner(s); (iii) The type and date of the action; (iv) The reason for the action. (2) As a UCP, you must check the DOCR Web site at least once every month to determine whether any firm that is applying to you for certification or that you have already certified is on the list. (3) For any such firm that is on the list, you must promptly request a copy of the listed decision from the UCP that made it. As the UCP receiving such a request, you must provide a copy of the decision to the requesting UCP within 7 days of receiving the request. As the UCP receiving the decision, you must then consider the information in the decision in determining what, if any, action to take with respect to the certified DBE firm or applicant. (g) You must implement the requirements of this section beginning January 1, 2012. [76 FR 5100, Jan. 28, 2011) § 26.86 What rules govern recipients' denials of initial requests for certification? (a) When you deny a request by a firm, which is not currently certified with you, to be certified as a DBE, you must provide the firm a written explanation of the reasons for the denial, specifically referencing the evidence in the record that supports each reason for the denial. All documents and other information on which the denial is based must be made available to the applicant, on request. (b) When you deny DBE certification to a firm certified by the SBA, you must notify the SBA in writing. The notification must include the reason for denial. Page 34 of 50 199 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (c) When a firm is denied certification, you must establish a time period of no more than twelve months that must elapse before the firm may reapply to the recipient for certification. You may provide, in your DBE program, subject to approval by the concerned operating administration, a shorter waiting period for reapplication. The time period for reapplication begins to run on the date the explanation required by paragraph (a) of this section is received by the firm. (d) When you make an administratively final denial of certification concerning a firm, the firm may appeal the denial to the Department under §26.89. [64 FR 5126, Feb. 2, 1999. Redesignated and amended at 68 FR 35555, June 16, 2003) § 26.87 What procedures does a recipient use to remove a DBE's eligibility? (a) Ineligibility complaints. (1) Any person may file with you a written complaint alleging that a currently-certified firm is ineligible and specifying the alleged reasons why the firm is ineligible. You are not required to accept a general allegation that a firm is ineligible or an anonymous complaint. The complaint may include any information or arguments supporting the complainant's assertion that the firm is ineligible and should not continue to be certified. Confidentiality of complainants' identities must be protected as provided in §26.1 09(b). (2) You must review your records concerning the firm, any material provided by the firm and the complainant, and other available information. You may request additional information from the firm or conduct any other investigation that you deem necessary. (3) If you determine, based on this review, that there is reasonable cause to believe that the firm is ineligible, you must provide written notice to the firm that you propose to find the firm ineligible, setting forth the reasons for the proposed determination. If you determine that such reasonable cause does not exist, you must notify the complainant and the firm in writing of this determination and the reasons for it. All statements of reasons for findings on the issue of reasonable cause must specifically reference the evidence in the record on which each reason is based. (b) Recipient-initiated proceedings. If, based on notification by the firm of a change in its circumstances or other information that comes to your attention, you determine that there is reasonable cause to believe that a currently certified firm is ineligible, you must provide written notice to the firm that you propose to find the firm ineligible, setting forth the reasons for the proposed determination. The statement of reasons for the finding of reasonable cause must specifically reference the evidence in the record on which each reason is based. (c) DOT directive to initiate proceeding. ( 1) If the concerned operating administration determines that information in your certification records, or other information available to the concerned operating administration, provides reasonable cause to believe that a firm you certified does not meet the eligibility criteria of this part, the concerned operating administration may direct you to initiate a proceeding to remove the firm's certification. (2) The concerned operating administration must provide you and the firm a notice setting forth the reasons for the directive, including any relevant documentation or other information. (3) You must immediately commence and prosecute a proceeding to remove eligibility as provided by paragraph (b) of this section. (d) Hearing. When you notify a firm that there is reasonable cause to remove its eligibility, as provided in paragraph (a}, (b), or (c) of this section, you must give the firm an opportunity for an informal hearing, at which the firm may respond to the reasons for the proposal to remove its eligibility in person and provide information and arguments concerning why it should remain certified. (1) In such a proceeding, you bear the burden of proving, by a preponderance of the evidence, that the firm does not meet the certification standards of this part. (2) You must maintain a complete record of the hearing, by any means acceptable under state law for the retention of a verbatim record of an administrative hearing. If there is an appeal to DOT under §26.89, you must provide a transcript of the hearing to DOT and, on request, to the firm. You must retain the original record of the hearing. You may charge the firm only for the cost of copying the record. (3) The firm may elect to present information and arguments in writing, without going to a hearing. In such a situation, you bear the same burden of proving, by a preponderance of the evidence, that the firm does not meet the certification standards, as you would during a hearing. (e) Separation offunctions. You must ensure that the decision in a proceeding to remove a firm's eligibility is made by an office and personnel that did not take part in actions leading to or seeking to implement the proposal to Page 35 of 50 200 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs remove the firm's eligibility and are not subject, with respect to the matter, to direction from the office or personnel who did take part in these actions. (1) Your method of implementing this requirement must be made part of your DBE program. (2) The decision maker must be an individual who is knowledgeable about the certification requirements of your DBE program and this part. (3) Before a UCP is operational in its state, a small airport or small transit authority (i.e., an airport or transit authority serving an area with less than 250,000 population) is required to meet this requirement only to the extent feasible. (f) Grounds for decision. You must not base a decision to remove eligibility on a reinterpretation or changed opinion of information available to the recipient at the time of its certification of the firm. You may base such a decision only on one or more of the following: (1) Changes in the firm's circumstances since the certification of the firm by the recipient that render the firm unable to meet the eligibility standards of this part; (2) Information or evidence not available to you at the time the firm was certified; (3) Information that was concealed or misrepresented by the firm in previous certification actions by a recipient; (4) A change in the certification standards or requirements of the Department since you certified the firm; or (5) A documented finding that your determination to certify the firm was factually erroneous. (g) Notice of decision. Following your decision, you must provide the firm written notice of the decision and the reasons for it, including specific references to the evidence in the record that supports each reason for the decision. The notice must inform the firm of the consequences of your decision and of the availability of an appeal to the Department of Transportation under §26.89. You must send copies of the notice to the complainant in an ineligibility complaint or the concerned operating administration that had directed you to initiate the proceeding. (h) [Reserved] (i) Status affirm during proceeding. (1) A firm remains an eligible DBE during the pendency of your proceeding to remove its eligibility. (2) The firm does not become ineligible until the issuance of the notice provided for in paragraph (g) of this section. U) Effects of removal of eligibility. When you remove a firm's eligibility, you must take the following action: (1) When a prime contractor has made a commitment to using the ineligible firm, or you have made a commitment to using a DBE prime contractor, but a subcontract or contract has not been executed before you issue the decertification notice provided for in paragraph (g) of this section, the ineligible firm does not count toward the contract goal or overall goal. You must direct the prime contractor to meet the contract goal with an eligible DBE firm or demonstrate to you that it has made a good faith effort to do so. (2) If a prime contractor has executed a subcontract with the firm before you have notified the firm of its ineligibility, the prime contractor may continue to use the firm on the contract and may continue to receive credit toward its DBE goal for the firm's work. In this case, or in a case where you have let a prime contract to the DBE that was later ruled ineligible, the portion of the ineligible firm's performance of the contract remaining after you issued the notice of its ineligibility shall not count toward your overall goal, but may count toward the contract goal. (3) Exception: If the DBE's ineligibility is caused solely by its having exceeded the size standard during the performance of the contract, you may continue to count its participation on that contract toward overall and contract goals. (k) Availability of appeal. When you make an administratively final removal of a firm's eligibility under this section, the firm may appeal the removal to the Department under §26.89. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003; 76 FR 5101, Jan. 28, 2011] Page 36 of 50 201 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.89 What is the process for certification appeals to the Department of Transportation? (a) (1) If you are a firm that is denied certification or whose eligibility is removed by a recipient, including SBA- certified firms applying pursuant to the DOT/SBA MOU, you may make an administrative appeal to the Department. (2) If you are a complainant in an ineligibility complaint to a recipient (including the concerned operating administration in the circumstances provided in §26.87(c)), you may appeal to the Department if the recipient does not find reasonable cause to propose removing the firm's eligibility or, following a removal of eligibility proceeding, determines that the firm is eligible. (3) Send appeals to the following address: Department of Transportation, Office of Civil Rights, 1200 New Jersey Avenue, SE., Washington, DC 20590. (b) Pending the Department's decision in the matter, the recipient's decision remains in effect. The Department does not stay the effect of the recipient's decision while it is considering an appeal (c) If you want to file an appeal, you must send a letter to the Department within 90 days of the date of the recipient's final decision, including information and arguments concerning why the recipient's decision should be reversed. The Department may accept an appeal filed later than 90 days after the date of the decision if the Department determines that there was good cause for the late filing of the appeal (1) If you are an appellant who is a firm which has been denied certification, whose certification has been removed, whose owner is determined not to be a member of a designated disadvantaged group, or concerning whose owner the presumption of disadvantage has been rebutted, your letter must state the name and address of any other recipient which currently certifies the firm, which has rejected an application for certification from the firm or removed the firm's eligibility within one year prior to the date of the appeal, or before which an application for certification or a removal of eligibility is pending. Failure to provide this information may be deemed a failure to cooperate under §26.109(c). (2) If you are an appellant other than one described in paragraph (c)(1) of this section, the Department will request, and the firm whose certification has been questioned shall promptly provide, the information called for in paragraph (c)(1) of this section. Failure to provide this information may be deemed a failure to cooperate under §26.1 09(c). (d) When it receives an appeal, the Department requests a copy of the recipient's complete administrative record in the matter. If you are the recipient, you must provide the administrative record, including a hearing transcript, within 20 days of the Department's request. The Department may extend this time period on the basis of a recipient's showing of good cause. To facilitate the Department's review of a recipient's decision, you must ensure that such administrative records are well organized, indexed, and paginated. Records that do not comport with these requirements are not acceptable and will be returned to you to be corrected immediately. If an appeal is brought concerning one recipient's certification decision concerning a firm, and that recipient relied on the decision and/or administrative record of another recipient, this requirement applies to both recipients involved. (e) The Department makes its decision based solely on the entire administrative record. The Department does not make a de novo review of the matter and does not conduct a hearing. The Department may supplement the administrative record by adding relevant information made available by the DOT Office of Inspector General; Federal, state, or local law enforcement authorities; officials of a DOT operating administration or other appropriate DOT office; a recipient; or a firm or other private party. (f) As a recipient, when you provide supplementary information to the Department, you shall also make this information available to the firm and any third-party complainant involved, consistent with Federal or applicable state laws concerning freedom of information and privacy. The Department makes available, on request by the firm and any third-party complainant involved, any supplementary information it receives from any source. (1) The Department affirms your decision unless it determines, based on the entire administrative record, that your decision is unsupported by substantial evidence or inconsistent with the substantive or procedural provisions of this part concerning certification. (2) If the Department determines, after reviewing the entire administrative record, that your decision was unsupported by substantial evidence or inconsistent with the substantive or procedural provisions of this part concerning certification, the Department reverses your decision and directs you to certify the firm or remove its eligibility, as appropriate. You must take the action directed by the Department's decision immediately upon receiving written notice of it. (3) The Department is not required to reverse your decision if the Department determines that a procedural error did not result in fundamental unfairness to the appellant or substantially prejudice the opportunity of the appellant to present its case. Page 37 of 50 202 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (4) If it appears that the record is incomplete or unclear with respect to matters likely to have a significant impact on the outcome of the case, the Department may remand the record to you with instructions seeking clarification or augmentation of the record before making a finding. The Department may also remand a case to you for further proceedings consistent with Department instructions concerning the proper application of the provisions of this part. (5) The Department does not uphold your decision based on grounds not specified in your decision. (6) The Department's decision is based on the status and circumstances of the firm as of the date of the decision being appealed. (7) The Department provides written notice of its decision to you, the firm, and the complainant in an ineligibility complaint. A copy of the notice is also sent to any other recipient whose administrative record or decision has been involved in the proceeding (see paragraph (d) of this section). The Department will also notify the SBA in writing when DOT takes an action on an appeal that results in or confirms a loss of eligibility to any SBA-certified firm. The notice includes the reasons for the Department's decision, including specific references to the evidence in the record that supports each reason for the decision. (8) The Department's policy is to make its decision within 180 days of receiving the complete administrative record. If the Department does not make its decision within this period, the Department provides written notice to concerned parties, including a statement of the reason for the delay and a date by which the appeal decision will be made. (g) All decisions under this section are administratively final, and are not subject to petitions for reconsideration. [64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 FR 35556, June 16, 2003; 73 FR 33329, June 12, 2008) § 26.91 What actions do recipients take following DOT certification appeal decisions? (a) If you are the recipient from whose action an appeal under §26.89 is taken, the decision is binding. It is not binding on other recipients. (b) If you are a recipient to which a DOT determination under §26.89 is applicable, you must take the following action: (1) If the Department determines that you erroneously certified a firm, you must remove the firm's eligibility on receipt of the determination, without further proceedings on your part. Effective on the date of your receipt of the Department's determination, the consequences of a removal of eligibility set forth in §26.87(i) take effect. (2) If the Department determines that you erroneously failed to find reasonable cause to remove the firm's eligibility, you must expeditiously commence a proceeding to determine whether the firm's eligibility should be removed, as provided in §26.87. (3) If the Department determines that you erroneously declined to certify or removed the eligibility of the firm, you must certify the firm, effective on the date of your receipt of the written notice of Department's determination. (4) If the Department determines that you erroneously determined that the presumption of social and economic disadvantage either should or should not be deemed rebutted, you must take appropriate corrective action as determined by the Department. (5) If the Department affirms your determination, no further action is necessary. (c) Where DOT has upheld your denial of certification to or removal of eligibility from a firm, or directed the removal of a firm's eligibility, other recipients with whom the firm is certified may commence a proceeding to remove the firm's eligibility under §26.87. Such recipients must not remove the firm's eligibility absent such a proceeding. Where DOT has reversed your denial of certification to or removal of eligibility from a firm, other recipients must take the DOT action into account in any certification action involving the firm. However, other recipients are not required to certify the firm based on the DOT decision. Page 38 of 50 203 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Subpart F-Compliance and Enforcement § 26.101 What compliance procedures apply to recipients? (a) If you fail to comply with any requirement of this part, you may be subject to formal enforcement action under §26.1 03 or §26.1 05 or appropriate program sanctions by the concerned operating administration, such as the suspension or termination of Federal funds, or refusal to approve projects, grants or contracts until deficiencies are remedied. Program sanctions may include, in the case of the FHWA program, actions provided for under 23 CFR 1.36; in the case of the FAA program, actions consistent with 49 U.S.C. 47106(d), 47111(d), and 47122; and in the case of the FTA program, any actions permitted under 49 U.S.C. chapter 53 or applicable FTA program requirements. (b) As provided in statute, you will not be subject to compliance actions or sanctions for failing to carry out any requirement of this part because you have been prevented from complying because a Federal court has issued a final order in which the court found that the requirement is unconstitutional. § 26.103 What enforcement actions apply in FHWA and FTA programs? The provisions of this section apply to enforcement actions under FHWA and FTA programs: (a) Noncompliance complaints. Any person who believes that a recipient has failed to comply with its obligations under this part may file a written complaint with the concerned operating administration's Office of Civil Rights. If you want to file a complaint, you must do so no later than 180 days after the date of the alleged violation or the date on which you learned of a continuing course of conduct in violation of this part. In response to your written request, the Office of Civil Rights may extend the time for filing in the interest of justice, specifying in writing the reason for so doing. The Office of Civil Rights may protect the confidentiality of your identity as provided in §26.1 09(b). Complaints under this part are limited to allegations of violation of the provisions of this part. (b) Compliance reviews. The concerned operating administration may review the recipient's compliance with this part at any time, including reviews of paperwork and on-site reviews, as appropriate. The Office of Civil Rights may direct the operating administration to initiate a compliance review based on complaints received. (c) Reasonable cause notice. If it appears, from the investigation of a complaint or the results of a compliance review, that you, as a recipient, are in noncompliance with this part, the appropriate DOT office promptly sends you, return receipt requested, a written notice advising you that there is reasonable cause to find you in noncompliance. The notice states the reasons for this finding and directs you to reply within 30 days concerning whether you wish to begin conciliation. (d) Conciliation. (1) If you request conciliation, the appropriate DOT office shall pursue conciliation for at least 30, but not more than 120, days from the date of your request. The appropriate DOT office may extend the conciliation period for up to 30 days for good cause, consistent with applicable statutes. (2) If you and the appropriate DOT office sign a conciliation agreement, then the matter is regarded as closed and you are regarded as being in compliance. The conciliation agreement sets forth the measures you have taken or will take to ensure compliance. While a conciliation agreement is in effect, you remain eligible for FHWA or FTA financial assistance. (3) The concerned operating administration shall monitor your implementation of the conciliation agreement and ensure that its terms are complied with. If you fail to carry out the terms of a conciliation agreement, you are in noncompliance. (4) If you do not request conciliation, or a conciliation agreement is not signed within the time provided in paragraph (d)(1) of this section, then enforcement proceedings begin. (e) Enforcement actions. (1) Enforcement actions are taken as provided in this subpart. (2) Applicable findings in enforcement proceedings are binding on all DOT offices. § 26.105 What enforcement actions apply in FAA programs? (a) Compliance with all requirements of this part by airport sponsors and other recipients of FAA financial assistance is enforced through the procedures ofTitle 49 of the United States Code, including 49 U.S.C. 471 06(d), 47111 (d), and 47122, and regulations implementing them. (b) The provisions of §26.103(b) and this section apply to enforcement actions in FAA programs. (c) Any person who knows of a violation of this part by a recipient of FAA funds may file a complaint under 14 CFR part 16 with the Federal Aviation Administration Office of Chief Counsel. Page 39 of 50 204 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs § 26.107 What enforcement actions apply to firms participating in the DBE program? (a) If you are a firm that does not meet the eligibility criteria of subpart D of this part and that attempts to participate in a DOT-assisted program as a DBE on the basis of false, fraudulent, or deceitful statements or representations or under circumstances indicating a serious lack of business integrity or honesty, the Department may initiate suspension or debarment proceedings against you under 2 CFR parts 180 and 1200. (b) If you are a firm that, in order to meet DBE contract goals or other DBE program requirements, uses or attempts to use, on the basis of false, fraudulent or deceitful statements or representations or under circumstances indicating a serious lack of business integrity or honesty, another firm that does not meet the eligibility criteria of subpart D of this part, the Department may initiate suspension or debarment proceedings against you under 2 CFR parts 180 and 1200. (c) In a suspension or debarment proceeding brought under paragraph (a) or (b) of this section, the concerned operating administration may consider the fact that a purported DBE has been certified by a recipient. Such certification does not preclude the Department from determining that the purported DBE, or another firm that has used or attempted to use it to meet DBE goals, should be suspended or debarred. (d) The Department may take enforcement action under 49 CFR Part 31, Program Fraud and Civil Remedies, against any participant in the DBE program whose conduct is subject to such action under 49 CFR part 31. (e) The Department may refer to the Department of Justice, for prosecution under 18 U.S.C. 1001 or other applicable provisions of law, any person who makes a false or fraudulent statement in connection with participation of a DBE in any DOT-assisted program or otherwise violates applicable Federal statutes. [64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5101, Jan. 28, 2011] § 26.109 What are the rules governing information, confidentiality, cooperation, and intimidation or retaliation? (a) Availability of records. (1) In responding to requests for information concerning any aspect of the DBE program, the Department complies with provisions of the Federal Freedom of Information and Privacy Acts (5 U.S.C. 552 and 552a). The Department may make available to the public any information concerning the DBE program release of which is not prohibited by Federal law. (2) Notwithstanding any provision of Federal or state law, you must not release any information that may reasonably be construed as confidential business information to any third party without the written consent of the firm that submitted the information. This includes applications for DBE certification and supporting information. However, you must transmit this information to DOT in any certification appeal proceeding under §26.89 of this part or to any other state to which the individual's firm has applied for certification under §26.85 of this part. (b) Confidentiality of information on complainants. Notwithstanding the provisions of paragraph (a) of this section, the identity of complainants shall be kept confidential, at their election. If such confidentiality will hinder the investigation, proceeding or hearing, or result in a denial of appropriate administrative due process to other parties, the complainant must be advised for the purpose of waiving the privilege. Complainants are advised that, in some circumstances, failure to waive the privilege may result in the closure of the investigation or dismissal of the proceeding or hearing. FAA follows the procedures of 14 CFR part 16 with respect to confidentiality of information in complaints. (c) Cooperation. All participants in the Department's DBE program (including, but not limited to, recipients, DBE firms and applicants for DBE certification, complainants and appellants, and contractors using DBE firms to meet contract goals) are required to cooperate fully and promptly with DOT and recipient compliance reviews, certification reviews, investigations, and other requests for information. Failure to do so shall be a ground for appropriate action against the party involved (e.g., with respect to recipients, a finding of noncompliance; with respect to DBE firms, denial of certification or removal of eligibility and/or suspension and debarment; with respect to a complainant or appellant, dismissal of the complaint or appeal; with respect to a contractor which uses DBE firms to meet goals, findings of non-responsibility for future contracts and/or suspension and debarment). (d) Intimidation and retaliation. If you are a recipient, contractor, or any other participant in the program, you must not intimidate, threaten, coerce, or discriminate against any individual or firm for the purpose of interfering with any right or privilege secured by this part or because the individual or firm has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. If you violate this prohibition, you are in noncompliance with this part. Page 40 of 50 205 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003; 76 FR 5101, Jan. 28, 2011] Appendix A to Part 26-Guidance Concerning Good Faith Efforts I. When, as a recipient, you establish a contract goal on a DOT-assisted contract, a bidder must, in order to be responsible and/or responsive, make good faith efforts to meet the goal. The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting commitments for participation by DBE firms sufficient for this purpose. Second, even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This means that the bidder must show that it took all necessary and reasonable steps to achieve a DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful. II. In any situation in which you have established a contract goal, part 26 requires you to use the good faith efforts mechanism of this part. As a recipient, it is up to you to make a fair and reasonable judgment whether a bidder that did not meet the goal made adequate good faith efforts. It is important for you to consider the quality, quantity, and intensity of the different kinds of efforts that the bidder has made. The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements. We emphasize, however, that your determination concerning the sufficiency of the firm's good faith efforts is a judgment call: meeting quantitative formulas is not required. Ill. The Department also strongly cautions you against requiring that a bidder meet a contract goal (i.e., obtain a specified amount of DBE participation) in order to be awarded a contract, even though the bidder makes an adequate good faith efforts showing. This rule specifically prohibits you from ignoring bona fide good faith efforts. IV. The following is a list of types of actions which you should consider as part of the bidder's good faith efforts to obtain DBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases. A. Soliciting through all reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified DBEs who have the capability to perform the work of the contract. The bidder must solicit this interest within sufficient time to allow the DBEs to respond to the solicitation. The bidder must determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations. B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces. C. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation. D. (1) Negotiating in good faith with interested DBEs. It is the bidder's responsibility to make a portion of the work available to DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for DBEs to perform the work. (2) A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable. E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the contractor's efforts to meet the project goal. Page 41 of 50 206 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor. G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. H. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs. V. In determining whether a bidder has made good faith efforts, you may take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise the question of whether, with additional reasonable efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but meets or exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts. Page 42 of 50 207 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Appendix B to Part 26-Uniform Report of DBE Awards or Commitments and Payments Form [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003] Page 43 of 50 208 N 0 <0 Black ! (dollars) Hispanic ! Native American I American DBEs/Race Conscious I Conscious (dollars) {number) tnumber) Subcont. I Asian-I Non· Asian Pacific Minority American American Women 1 e. Si;inatur& of Avlt.cri;:o<J Neutral [dollars) (number) H I Other (La., I TOTALS (for not of any this I other group reporting I listed here) I period only) T olal DBE Participation (Dollars) Percentage of tota! dollars to DBEs Year-End TOTALS Percentage of To~al DBE Parlici>>Riion 11\SI'RUCTIO!'\S FOR C01VIPLETING THE U· .... IFORM REPORT OJ<' UllE AWARDS OR COMMITMENTS AND PAYMENTS !ndic;Hc the DOT Operating Administration (Ot\) that prnvides vour 1-\:cieral financial assi!:;tar:cc. If assistance come~ ft\}ffi n1orc ilmn one: OA. csc separate reporting forms for cadr OA. If you are un FTA recipient. inJi..:atc your Vcndol Nurnbcr in the spac~ provided. ') If you <We an FAA r~cipient, rndicate the relevant AlP Numbers covered by this report lf more than six, attach a separate sheet. t. Spcct fy the Federal fiscal year ( u:., October ! Septembe-r 30) in v.hich the covered reporting period falls 4_ St<liC the date of submission of this report. 5. Check the <tppropriatc b•)X that indicntes the reporting periud that the data provided in this report covers. If this report is due June L dat' sh<.>u!d cover October I ---March 3 L If this report is due December 1, data should cover April l --September 30. If this report is due to the f'At\, data should cover the entire year. \), Name of the recipient 7. State your annual DBE goal(s) established for the Federal fiscal year of this report to be submitted to and approved by the relevant OA. Your Ovemll Goa! is to be reported as well as the breakdown for specitic Race Conscious and Race Neutral Goals (both of which include gemler-consdous/neutral gonls}. The Race Conscious Goal portion should be based on progrums that focus on and provide benefits only for DBEs. The use of contract goals is a primnry example of " !bee Conscious measure. The Race Neutral Goal portion should include programs that, while benefiting DBEs. arc not solely focused on DBE firms. For example, u small business (>tttr\:'ach progranL technicJ:I assistance~ and prompt p~yn1ent chtu$CS can a~sist a \Vid;; variety of businesses in ltddition tt) helping DBE t!rms, 8-'l_ The amoww; in items R(A}-9(1) should include aU types of prime contracts awarded and all types of subcontracts <twarded nr commincd. including: professional or consultant "''rvitcs, construction. purch;:tse of rnarerials or supplies ... lease or purchase -of cquipmcm and any uther types of $erviees. AH dt>l!ar amounts urc to rd1e~! only the Federal share of such contr.lcts, and should be rounded to the nearest dollar. 8(/\). Provide the !Nai do!!n amount for all prime contracts assisted witll fXJT funds that were award,~d during this reporting period. g(B). Pn)\·ide the tmal number of all prime contracts asotstt-,J with DOT funds that were awarded during this reporting period. S!C). From the tt>tal dollar amount awarded in item 8(A}, pr•JVide the do!htr amount awarded to certificJ DBEs during this r~por:ing period. 8(0). From the tntal number of prime contrncts awarded in item 8(B), specify the number awarded to certified DBEs during this reporting period g(E). from the total dollars award<Xl in 8(C), l'rovidl! the !lcll;u: ampunt award~d w DBFs though the use of R~ce Con~ciou~ method~. See the definitinn of Race Conscious Goal in itern 7 and the explanation of project types in item 8 to include in your calculation. 8(1'), from the total number of prime contracts awarded in S(D}, specify the ~ aw~rded to DBEs through Race Conscious methoJs. ~(G). From the total dollar amount awarded in item ~(C), provide the dollar amount awarded to certift,~d Dl3Es through the 1JS'-" of Race Nemral methods. Se-e the definition of Race Neutrnl Goa! in item 7 and the explanation of project types in item 8 to include. 8(H). From the total number of prime contracts awnrded in 8(D), >pccify the number awarded to DBEs through Race Neutral methods. R(l). Of all prime contracts awarded this reponing period. calculate the percentage going to DBEs. Divide the dollar amount in item ~(C) by the dollar amount itt item 8(A) to derive this pen:cntage. Round percentage to the nearest tenth. 9(A)-9{1). Items 9(A)-9(l) ;;re dL'rivcd in the same way as items 1\(A)- S(l}. except that these calculations should be based on subcontracts rather than prime contracts, Unlike prime contracts, \vhich may only be awarded, subcontracts may be either awarded or committed. IO(A)-ll(l). for all DilEs awarded prime contracts and awarded or committed subcontracts as indicated in 8(C)-(D) and 9(C)-(D), break the data down further by total dollar amount as well as the number <>f a!! contracts going to each ethnic !,>rOUp as well as to non· minority women. The "Other'' category includes those DBEs who are not members of the presumptively disadv<lntaged groups already listed, but wht> are detcnnined eligible for the DBE program on an individual basis (e.g. a Caucasian male with a disability). The TOTALS value in lO(H) should equal the sum of ll(C) plus 9(C), and similarly, the TOTALS value in ll{H) should equal the sum of 8(D} plus 9(D). Column l should only be filled out if this report is due on December I, as indicated in item 5. The values tor this column arc derived by adding the values reported in CDlumn H in your first report with the values reported in this second ri:port 12(A). Provide the total number of prime contracts completed during this r¢porting period that hnd Race Consciow; goals. R~ce Con~ciou> ,,mmtcts are thos~ with conuacr J:;tt<lb or another Race Conscious measure. l2{B). Provide the total dollar value of prime co!ltracts completed this reporting perit)(l that had Rncc (\msdvm goals. l2(C}. Pnwide the total dollar amount of DBE participation t>n all Race Conscious prime contracts completed this reporting periud that was necessary· to meet the contr1cr goals on them This applies only to Race c ... 1nscious prime contracts. 12(D), Provide the actual total DBE participation in dollars on the race conscious prime contracts compldcd thi~ reporting period. l2{E). Of all the prime cnntracis cnmpl~wd this reporting period, calculate the percentage of DBE participation. Divide the actual total dollar amount in l2(D) by the total dollar value provided in l2(B) to derive this percentage. Round to the neaJest tenth. l3(A)-13(E). llems 13(AH3(E) are derived m thi: same mann~r as items !2(A)-!2(E). except tht-sc figme~ sho1lld be based on Race Neutral prime contacts (i.e. those with no race conscious measures). l4(A)-14(E). Calcula!<:: the totals for coch cohunn by ndding the race conscious and neutral figures provided in ea.:h row above. !5. Nnmc of the Authorized Representative preparing_ this form. 16. Signnturc of the Authorized Represemmivc. 17. Phone number of the Authorized Rt:prcsen!ative. 18. Fax number of th~ Aullwrizcd Representative. •-•submit yonr compl<t~d '"P"rt to yonr Regional or Divhion Oflke. 210 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Appendix C to Part 26-DBE Business Development Program Guidelines The purpose of this program element is to further the development of DBEs, including but not limited to assisting them to move into non-traditional areas of work and/or compete in the marketplace outside the DBE program, via the provision of training and assistance from the recipient. (A) Each firm that participates in a recipient's business development program (BOP) program is subject to a program term determined by the recipient. The term should consist of two stages; a developmental stage and a transitional stage. (B) In order for a firm to remain eligible for program participation, it must continue to meet all eligibility criteria contained in part 26. (C) By no later than 6 months of program entry, the participant should develop and submit to the recipient a comprehensive business plan setting forth the participant's business targets, objectives and goals. The participant will not be eligible for program benefits until such business plan is submitted and approved by the recipient. The approved business plan will constitute the participant's short and long term goals and the strategy for developmental growth to the point of economic viability in non-traditional areas of work and/or work outside the DBE program. (D) The business plan should contain at least the following: (1) An analysis of market potential, competitive environment and other business analyses estimating the program participant's prospects for profitable operation during the term of program participation and after graduation from the program. (2) An analysis of the firm's strengths and weaknesses, with particular attention paid to the means of correcting any financial, managerial, technical, or labor conditions which could impede the participant from receiving contracts other than those in traditional areas of DBE participation. (3) Specific targets, objectives, and goals for the business development of the participant during the next two years, utilizing the results of the analysis conducted pursuant to paragraphs (C) and (D)( 1) of this appendix; (4) Estimates of contract awards from the DBE program and from other sources which are needed to meet the objectives and goals for the years covered by the business plan; and (5) Such other information as the recipient may require. (E) Each participant should annually review its currently approved business plan with the recipient and modify the plan as may be appropriate to account for any changes in the firm's structure and redefined needs. The currently approved plan should be considered the applicable plan for all program purposes until the recipient approves in writing a modified plan. The recipient should establish an anniversary date for review of the participant's business plan and contract forecasts. (F) Each participant should annually forecast in writing its need for contract awards for the next program year and the succeeding program year during the review of its business plan conducted under paragraph (E) of this appendix. Such forecast should be included in the participant's business plan. The forecast should include: (1) The aggregate dollar value of contracts to be sought under the DBE program, reflecting compliance with the business plan; (2) The aggregate dollar value of contracts to be sought in areas other than traditional areas of DBE participation; (3) The types of contract opportunities being sought, based on the firm's primary line of business; and (4) Such other information as may be requested by the recipient to aid in providing effective business development assistance to the participant. (G) Program participation is divided into two stages; (1) a developmental stage and (2) a transitional stage. The developmental stage is designed to assist participants to overcome their social and economic disadvantage by providing such assistance as may be necessary and appropriate to enable them to access relevant markets and strengthen their financial and managerial skills. The transitional stage of program participation follows the developmental stage and is designed to assist participants to overcome, insofar as practical, their social and economic disadvantage and to prepare the participant for leaving the program. (H) The length of service in the program term should not be a pre-set time frame for either the developmental or transitional stages but should be figured on the number of years considered necessary in normal progression of achieving the firm's established goals and objectives. The setting of such time could be factored on such items Page 46 of 50 211 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs as, but not limited to, the number of contracts, aggregate amount of the contract received, years in business, growth potential, etc. (I) Beginning in the first year of the transitional stage of program participation, each participant should annually submit for inclusion in its business plan a transition management plan outlining specific steps to promote profitable business operations in areas other than traditional areas of DBE participation after graduation from the program. The transition management plan should be submitted to the recipient at the same time other modifications are submitted pursuant to the annual review under paragraph (E) of this section. The plan should set forth the same information as required under paragraph (F) of steps the participant will take to continue its business development after the expiration of its program term. (J) When a participant is recognized as successfully completing the program by substantially achieving the targets, objectives and goals set forth in its program term, and has demonstrated the ability to compete in the marketplace, its further participation within the program may be determined by the recipient. (K) In determining whether a concern has substantially achieved the goals and objectives of its business plan, the following factors, among others, should be considered by the recipient: ( 1) Profitability; (2) Sales, including improved ratio of non-traditional contracts to traditional-type contracts; (3) Net worth, financial ratios, working capital, capitalization, access to credit and capital; (4) Ability to obtain bonding; (5) A positive comparison of the DBE's business and financial profile with profiles of non-DBE businesses in the same area or similar business category; and (6) Good management capacity and capability. (L) Upon determination by the recipient that the participant should be graduated from the developmental program, the recipient should notify the participant in writing of its intent to graduate the firm in a letter of notification. The letter of notification should set forth findings, based on the facts, for every material issue relating to the basis of the program graduation with specific reasons for each finding. The letter of notification should also provide the participant 45 days from the date of service of the letter to submit in writing information that would explain why the proposed basis of graduation is not warranted. (M) Participation of a DBE firm in the program may be discontinued by the recipient prior to expiration of the firm's program term for good cause due to the failure of the firm to engage in business practices that will promote its competitiveness within a reasonable period of time as evidenced by, among other indicators, a pattern of inadequate performance or unjustified delinquent performance. Also, the recipient can discontinue the participation of a firm that does not actively pursue and bid on contracts, and a firm that, without justification, regularly fails to respond to solicitations in the type of work it is qualified for and in the geographical areas where it has indicated availability under its approved business plan. The recipient should take such action if over a 2- year period a DBE firm exhibits such a pattern. Appendix D to Part 26-Mentor-Protege Program Guidelines (A) The purpose of this program element is to further the development of DBEs, including but not limited to assisting them to move into non-traditional areas of work and/or compete in the marketplace outside the DBE program, via the provision of training and assistance from other firms. To operate a mentor-protege program, a recipient must obtain the approval of the concerned operating administration. (B) (1) Any mentor-protege relationship shall be based on a written development plan, approved by the recipient, which clearly sets forth the objectives of the parties and their respective roles, the duration of the arrangement and the services and resources to be provided by the mentor to the protege. The formal mentor-protege agreement may set a fee schedule to cover the direct and indirect cost for such services rendered by the mentor for specific training and assistance to the protege through the life of the agreement. Services provided by the mentor may be reimbursable under the FTA, FHWA, and FAA programs. (2) To be eligible for reimbursement, the mentor's services provided and associated costs must be directly attributable and properly allowable to specific individual contracts. The recipient may establish a line item for the mentor to quote the portion of the fee schedule expected to be provided during the life of the contract. The amount claimed shall be verified by the recipient and paid on an incremental basis representing the time the protege is working on the contract. The total individual contract figures accumulated over the life of the agreement shall not exceed the amount stipulated in the original mentor/protege agreement. Page 47 of 50 212 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (C) DBEs involved in a mentor-protege agreement must be independent business entities which meet the requirements for certification as defined in subpart D of this part. A protege firm must be certified before it begins participation in a mentor-protege arrangement. If the recipient chooses to recognize mentor/protege agreements, it should establish formal general program guidelines. These guidelines must be submitted to the operating administration for approval prior to the recipient executing an individual contractor/ subcontractor mentor-protege agreement. Appendix E to Part 26-lndividual Determinations of Social and Economic Disadvantage The following guidance is adapted, with minor modifications, from SBA regulations concerning social and economic disadvantage determinations (see 13 CFR 124.103(c) and 124.104). Social Disadvantage I. Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias within American society because of their identities as members of groups and without regard to their individual qualities. Social disadvantage must stem from circumstances beyond their control. Evidence of individual social disadvantage must include the following elements: (A) At least one objective distinguishing feature that has contributed to social disadvantage, such as race, ethnic origin, gender, disability, long-term residence in an environment isolated from the mainstream of American society, or other similar causes not common to individuals who are not socially disadvantaged; (B) Personal experiences of substantial and chronic social disadvantage in American society, not in other countries; and (C) Negative impact on entry into or advancement in the business world because of the disadvantage. Recipients will consider any relevant evidence in assessing this element. In every case, however, recipients will consider education, employment and business history, where applicable, to see if the totality of circumstances shows disadvantage in entering into or advancing in the business world. (1) Education. Recipients will consider such factors as denial of equal access to institutions of higher education and vocational training, exclusion from social and professional association with students or teachers, denial of educational honors rightfully earned, and social patterns or pressures which discouraged the individual from pursuing a professional or business education. (2) Employment. Recipients will consider such factors as unequal treatment in hiring, promotions and other aspects of professional advancement, pay and fringe benefits, and other terms and conditions of employment; retaliatory or discriminatory behavior by an employer or labor union; and social patterns or pressures which have channeled the individual into non-professional or non-business fields. (3) Business history. The recipient will consider such factors as unequal access to credit or capital, acquisition of credit or capital under commercially unfavorable circumstances, unequal treatment in opportunities for government contracts or other work, unequal treatment by potential customers and business associates, and exclusion from business or professional organizations. II. With respect to paragraph I.(A) of this appendix, the Department notes that people with disabilities have disproportionately low incomes and high rates of unemployment. Many physical and attitudinal barriers remain to their full participation in education, employment, and business opportunities available to the general public. The Americans with Disabilities Act (ADA) was passed in recognition of the discrimination faced by people with disabilities. It is plausible that many individuals with disabilities-especially persons with severe disabilities (e.g., significant mobility, vision, or hearing impairments)-may be socially and economically disadvantaged. Ill. Under the laws concerning social and economic disadvantage, people with disabilities are not a group presumed to be disadvantaged. Nevertheless, recipients should look carefully at individual showings of disadvantage by individuals with disabilities, making a case-by-case judgment about whether such an individual meets the criteria of this appendix. As public entities subject to Title II of the ADA, recipients must also ensure their DBE programs are accessible to individuals with disabilities. For example, physical barriers or the lack of application and information materials in accessible formats cannot be permitted to thwart the access of potential applicants to the certification process or other services made available to DBEs and applicants. Economic Disadvantage (A) General. Economically disadvantaged individuals are socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially disadvantaged. (B) Submission of narrative and financial information. Page 48 of 50 213 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs (1) Each individual claiming economic disadvantage must describe the conditions which are the basis for the claim in a narrative statement, and must submit personal financial information. (2) [Reserved] (C) Factors to be considered. In considering diminished capital and credit opportunities, recipients will examine factors relating to the personal financial condition of any individual claiming disadvantaged status, including personal income for the past two years (including bonuses and the value of company stock given in lieu of cash), personal net worth, and the fair market value of all assets, whether encumbered or not. Recipients will also consider the financial condition of the applicant compared to the financial profiles of small businesses in the same primary industry classification, or, if not available, in similar lines of business, which are not owned and controlled by socially and economically disadvantaged individuals in evaluating the individual's access to credit and capital. The financial profiles that recipients will compare include total assets, net sales, pre-tax profit, sales/working capital ratio, and net worth. (D) Transfers within two years. (1) Except as set forth in paragraph (0)(2) of this appendix, recipients will attribute to an individual claiming disadvantaged status any assets which that individual has transferred to an immediate family member, or to a trust, a beneficiary of which is an immediate family member, for less than fair market value, within two years prior to a concern's application for participation in the DBE program, unless the individual claiming disadvantaged status can demonstrate that the transfer is to or on behalf of an immediate family member for that individual's education, medical expenses, or some other form of essential support. (2) Recipients will not attribute to an individual claiming disadvantaged status any assets transferred by that individual to an immediate family member that are consistent with the customary recognition of special occasions, such as birthdays, graduations, anniversaries, and retirements. (3) In determining an individual's access to capital and credit, recipients may consider any assets that the individual transferred within such two-year period described by paragraph (0)(1) of this appendix that are not considered in evaluating the individual's assets and net worth (e.g., transfers to charities). [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35559, June 16, 2003] Page 49 of 50 214 TITLE 49 CFR PART 26-Participation by Disadvantaged Business Enterprises in DOT Financial Assistance Programs Appendix F to Part 26-Uniform Certification Application Form See Exhibit D: CUCP DBE Certification Application or www.californiaucp.org. [68 FR 35559, June 16, 2003) Page 50 of 50 215 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program Exhibit B DBE Program Organizational Chart 216 Exhibit B Riverside County Transportation Commission (RCTC) Disadvantaged Business Enterprise (DBE) Program Organizational Chart For DBE Purposes: DBE Liaison Officer Reports Directly to Executive Director DBE liaison Officer Contact Information: Mr. Matthew Wallace Riverside County Transportation Commission (RCTC) 4080 Lemon Street, 3rd Floor Riverside, CA 92501 (951) 787-7908 (951) 787-7906 fax E-Mail: mwallace@rctc.org 217 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program Exhibit C RCTC Goal Setting Methodology 218 RIVERSIDE COUNTY TRANSPORTATION COMMISSION (RCTC) Overall DBE Project Goal Methodology Submitted in fulfillment of: Title 49 Code of Federal Regulations Part 26 219 RCTC Overall DBE Goal Methodology Page 2 of 9 OVERALL DBE GOAL METHODOLOGY Currently RCTC is only receiving FTA funding for one (1) project. Since this is the only project, it is the basis for determining the Overall DBE goal. I. INTRODUCTION The San Jacinto Branch Line Commuter Rail (Perris Valley Line) Project is a 24 mile extension of the Metrolink 91 Line, which currently provides service between Riverside and downtown Los Angeles. The San Jacinto Branch Line, purchased by the Riverside County Transportation Commission (RCTC) in 1993, which runs parallel to 1-215, will provide a commuter rail alternative to one of the most heavily traveled and congested freeways in the region. Upon start up, the Perris Valley Line Project will have four new stations. It will operate through three cities (Riverside, Moreno Valley, and Perris), bringing commuter rail services to major employment centers. The project will also provide communities such as Hemet, San Jacinto, Murrieta, Lake Elsinore, Menifee, Wildomar and Temecula closer access to the Southern California commuter rail network. The total project cost is currently estimated at $247,000,000. To meet this target, funding has been identified from the following sources: Federal Transit Administration (FTA) Section 5307 and Section 5309 Small Starts Funds; Federal Congestion Mitigation and Air Quality Improvement (CMAQ) and Surface Transportation Funds; State Transportation Improvement Program (STIP); State Transit Assistance (STA) and bond funds; and local Measure A sales tax and property revenues. RCTC herein sets forth its proposed Overall DBE Goal and corresponding methodology in accordance with 49 CFR Part 26 requirements. RCTC does not have demonstrable evidence on-hand of discrimination in its transportation contracting program. Therefore, RCTC adopted a wholly race-neutral Overall DBE Goal. In accordance with the federally prescribed goal setting requirements, a race conscious component is not included for this goal. The proposed Overall DBE Goal is separate and apart from RCTC's FHWA- assisted contracts administered in conformance with the Caltrans Local Agency DBE sub-recipient Agreement. The Proposed Overall DBE Goal is 3.8% of the total anticipated federal funding. The goal is representative of the relative availability of DBEs based on evidence of ready, willing and able DBEs with offices located within RCTC's defined market area (Riverside County, San Bernardino County and Orange County), to all comparable businesses which are known to be available to compete for the contracting opportunities. Additionally, the methodology also took into consideration RCTC's past DBE goal attainments/commitments to the extent applicable, Bidders List, the Southern California Transportation Consortium Disparity Study, other similar Agencies' DBE goals, and attainments within RCTC's jurisdiction and other relevant evidence. Sections II and Ill delineate the methodology undertaken to establish the proposed Overall DBE Goal for this wholly race-neutral program. 220 RCTC Overall DBE Goal Methodology Page 3 of 9 II. FTA-ASSISTED CONTRACTING PROGRAM Chart 1 identifies the Project's anticipated federal dollar share 1 considered in preparing this proposed Overall DBE Project Goal. CHART 1 Total Estimated Project Cost Table 1 provides a summary of the categories of work with estimated cost breakdown for each utilizing comparable North American Industry Classification System (NAICS) codes for purposes of weighting the categories of work based on the engineer's estimates. TABLE 1 237130 and Communication Line and Related Structures 3.98% 237310 15.23% 237990 r Heavy and Civil Engineering Construction 52.99% 238110 ured Concrete Foundation and Structure Contractors 5.23% 238120 ral Steel and Precast Concrete Contractors 1.07% 11n the event the percentage of the federal funding changes from the projected amount of 34.18 for this project, the goal will be subject to further modification. 221 RCTC Overall DBE Goal Methodology Page 4 of 9 238140 Ill. PROPOSED OVERALL DBE GOAL -METHODOLOGY Step 1: Determination of a Base Figure (26.45/ 1.98% 10.83% 0.09% 5.58% To establish the Base Figure, RCTC followed one of the five prescribed federal methodologies to determine relative availability of DBEs to all comparable firms available to bid or propose. This was accomplished by accessing the California Unified Certification Program (CUCP) DBE Directory of Certified Firms and the 2009 U.S. Census Bureau County Business Patterns (CBP) Database by corresponding counties within RCTC's market area (defined as Riverside County, San Bernardino County, and Orange County) for each of the identified subcontracting possibilities compiled by North American Industry Classification System (NAICS) Codes. RCTC's defined market area represents where projects will be performed and where the substantial majority of RCTC's funding dollars are intended to be expended. Additionally, the established market area has historically been utilized in other RCTCs goal-setting analysis. 3 RCTC 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: ¢ For the denominator: CUCP Directory of Certified DBE Firms* 2009 U.S. Census Bureau CBP Database of Firms* *located in RCTC's market area To determine the relative availability of DBEs, RCTC divided the numerator representing the number of ready, willing and able DBE firms by NAICS that are located within RCTC's defined market area, by the denominator representing all firms (DBEs and Non-DBEs) available within the defined market area by each work category. RCTC further refined its analysis by weighting each individual work category (from Table 1 above) relative to the engineer's estimate and corresponding federal dollar share of the major work category codes. 2 26.45 represents Title 49 CFR Part 26 regulatory goal setting methodology reference. 3 RCTC has utilized the same market area for the RCTC DBE Overall Annual goal submittal to Caltrans for FY 2009/10. 222 RCTC Overall DBE Goal Methodology Page 5 of 9 The proposed Overall DBE Goal Base Figure resulting from this weighted calculation is as follows: ( Number of Ready, Willing, and Able DBEs X Weight of J Number of All Available Firms NAICS% (Including DBEs and Non-DBEs) X 100= PROPOSED OVERALL DBE GOAL BASE FIGURE Proposed Overall DBE Goal Base Figure weighted by type of work to be performed (NAICS Categories) based on their estimated funding: TABLE2-..,.---,-~- 222 6 0.0302 0.08% and Communication Line and Structures Construction 98 0 0.0398 0.00% 179 20 0.1523 1.70% 99 8 0.5299 4.28% 467 17 0.0523 0.19% ral Steel and Precast Concrete 105 10 0.0107 0.10% 341 2 0.0198 0.01% 99 3 0.1083 0.33% 1658 32 0.0009 0.00% 0.25% 6.95% 3.8% STEP 2: Adjusting the Base Figure Upon establishing the Base Figure, RCTC reviewed and assessed other known evidence potentially impacting the relative availability of DBEs within RCTC's market area, in accordance with prescribed narrow tailoring provisions set forth under 49 CFR, Part 26.45 Step II DBE Goal Adjustment guidelines. Evidence considered in making an adjustment to the Base Figure included RCTC's Past DBE Goal Attainments/Commitments as applicable, RCTC's Bidders List, Caltrans Disparity Study, Other Agencies' DBE Goals and Attainments within Riverside County 223 RCTC Overall DBE Goal Methodology Page 6 of 9 Transportation Commission's jurisdiction and Other Relevant Evidence. A summary of these considerations follows: A. Past RCTC DBE Goal Attainments/Commitments As RCTC does not have comparable projects of similar size and scope to the Project, no adjustment to the Base Figure resulted from this consideration. B. Riverside County Transportation Commission's Bidders List The Bidders List serves as important demonstrable evidence of DBEs availability and capacity to perform, however, RCTC's available Bidders List(s) is limited to On- Call Maintenance Repair Services, and is not representative of all Bidders/Firms available and capable of performing work under the defined work categories. Therefore, no adjustment to the Base Figure was made in consideration of this factor. C. Evidence from Disparity Studies RCTC's market area is different than the market area considered in the State of California Department of Transportation (Caltrans) Disparity Study. Therefore, the results of the disparity study are not applicable to this project. In lieu of this and the fact that RCTC lacks sufficient evidence of discrimination in our transportation contracting program, RCTC is adopting a race neutral program. D. Other Agencies DBE Goals RCTC surveyed other DOT-recipients and other projects within RCTC's market area to assess their DBE goals toward making an adjustment to the Step I Base Figure. Agencies included in the survey were the Orange County Transportation Authority and San Bernardino Associated Governments. The calculated average contract- specific DBE goal amounted to 8.54%, which was found to be in alignment with RCTC's Base Figure of 6.95%. Therefore, no further adjustment to the Base Figure was recommended to be taken. 224 RCTC Overall DBE Goal Methodology Page 7 of 9 E. Other Evidence RCTC has not received any anecdotal evidence nor is aware of any other factors or adverse considerations that would have a material effect on DBEs availability within RCTC's market place, or on DBEs ability to participate (meeting bonding, insurance and financial requirements) in RCTC projects at this time. However, the public facilitation process may result in the identification of evidence that may have a material effect on the proposed DBE goal's Base Figure which would require an adjustment. Prior to finalizing this goal-setting process and establishing the Overall DBE Goal this factor will once again be considered if new evidence is identified. RCTC will continue to explore and consider all available evidence that materially would affect the opportunities for DBEs to form, grow, and compete in developing this and future Overall DBE goals, as applicable. RACE-NEUTRAURACE-CONSCIOUS PROJECTIONS RCTC's market area is different than the market area considered in the State of California Department of Transportation (Caltrans) Disparity Study. Therefore, RCTC is adopting a race neutral program. RCTC projects to meet the overall DBE goal through race neutral means. IV. GOAL APPLICATION The projected federal dollar share is $135,080,033. In accordance with Section 26.45(e), the Proposed Overall DBE Goal is expressed as a percent of FTA funds anticipated to be expended, as follows: Total Estimated Project Value $246,827,000 --------------~------------------------~ Estimated Federal Dollar Value $135,008,033 (54.72%) --------------~------------------------~ Step 1 Base Figure Based on Federal Share 6.95% X 54.72% = 3.8% --------------~------------------------- The information RCTC reviewed in Step 2 does not merit an adjustment, therefore we propose an overall DBE project goal of 3.8%. The proposed Overall DBE Goal is a Race Neutral goal for RCTC. RCTC will implement race neutral measures to achieve this goal, as generally described in the following section. V. RACE-NEUTRAL IMPLEMENTATION MEASURES In accordance with Title 49 CFR Part 26.51, RCTC understands its obligation to meet the maximum feasible portion of the Proposed Overall DBE Goal by utilizing race- neutral means of facilitating DBE participation. RCTC plans to require full implementation of the following race-neutral measures in conjunction with others necessary to meet DOT's DBE program objectives and RCTC's Overall DBE goal, including but not limited to: 225 RCTC Overall DBE Goal Methodology Page 8 of 9 ~ RCTC has considered the full complement of race-neutral measures identified in 49 CFR part 26. RCTC plans to implement the following race-neutral activities aimed at increasing DBE and other small business participation. ~ RCTC will structure and present solicitations and schedules in ways that facilitate DBE and other small business participation with prospective prime contractors. RCTC will also facilitate Small Business conferences, which includes a networking component to promote teaming opportunities between prospective prime contractors and the DBE and Small Business contracting community. ~ RCTC will provide assistance to Small Business including DBEs in overcoming limitations such as inability to obtain bonding or financing RCTC will additionally refer the DBE and Small Business contracting community to the SBA Bonding Assistance Program. ~ RCTC will carry out a communications effort to inform DBEs and other Small Businesses of opportunities that may be available. ~ As a supportive service to help develop and improve immediate and long-term business management, record keeping, and financial and accounting capability for DBEs and other small businesses, RCTC will actively promote Small Business conferences, programs and supportive services currently offered by peer agencies which have mature DBE and Small Business Programs and are seeking increased DBE and Small Business participation in their programs. ~ RCTC will advise contractors to the online directory of certified DBEs, found at the California Unified Certification Program website: www.CaliforniaUCP.com VI. PUBLIC PARTICIPATION AND FACILITATION In accordance with Public Participation Regulatory Requirements of 49 CFR Part 26, minority, women, local business chambers, and community organizations within RCTC's market area will be consulted and provided an opportunity to review this goal analysis. RCTC will prepare an Outreach Consultation Letter advising the aforementioned business community of the DBE goal analysis and its availability for review and conduct a public meeting to solicit public comment and input. RCTC will also issue a Public Notice of the proposed Overall DBE Goal in the Press Enterprise, a general circulation media and the following small business and minority focused media and trade publications: Precinct Reporter Group, The Hispanic News, Minority Business Entrepreneur Magazine, The BVN, Pacific Asian Current, Minority Bidders Bulletin, The Thomas Bid Register, McGraw Hill Construction, On Line Service: www.ContractorsEstimate.com, and/or www.goodfaitheffort.com. Such Notice will inform the public that the goal and its rationale is available for inspection at RCTC's offices (from 8:00a.m. to 4:30p.m., Pacific Standard Time, Monday through Friday), for 30 days following the date of the Public Notice and that RCTC will accept comments on the goal analysis for 45 days from the date of the Public Notice. The Notice will also include, as required, the FTA's point of contact information, as follows: 226 RCTC Overall DBE Goal Methodology Page 9 of 9 FTA Point of Contact Information for the DBE Program Mr. Derrin Jourdan, Civil Rights Officer FTA Region 9 201 Mission Street San Francisco, CA 94105-1926 ( 415) 7 44-2729 Derrin.Jourdan@dot.gov The notice shall additionally include the address to which comments may be sent and phone number for questions. VII. Prompt Payment Mechanisms RCTC will include the following clause in contracts, which includes flow down provisions: PROMPT PAYMENT Consultant/Contractor agrees to pay each subcontractor under this contract for satisfactory performance of its contract no later than 10 days from the receipt of each payment the prime contractor receives from RCTC. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval from RCTC. This clause applies to all (DBE and non-DBE) subcontractors and subconsultants. PROMPT PAYMENT OF FUNDS WITHHELD TO SUBCONTRACTORS RCTC shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by RCTC, 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 a subcontractor within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by RCTC. Federal law (49CFR26.29) requires that any delay or postponement of payment over 30 days may take place only for good cause and with the agency's prior written approval. Any violation of this provision shall subject the violating prime 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 prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor. 227 Riverside County Transportation Commission Disadvantaged Business Enterprise (OBE) Program Exhibit D CUCP DBE Certification Application 228 CALIFORNIA UNIFIED CERTIFICATION PROGRAM (CUCP) DISADVANTAGED BUSINESS ENTERPRISE (DBE) CERTIFICATION APPLICATION UNIFIED CERTIFICATION PROGRAM To access the statewide CUCP DBE database, please log onto: CALIFORNIAUCP.COM (Rev 6111/2011) 229 CALIFORNIA UNIFIED CERTIFICATION PROGRAM (CUCP) Dear Business Owner: Thank you for your interest in participating in the California Unified Certification Program (CUCP) for Disadvantaged Business Enterprises (DBEs). As mandated by the United States Department of Transportation (U.S. DOT) in the DBE Program, Final Rule 49 Code ofFederal Regulations (CPR), Part 26, all U.S. DOT recipients of federal financial assistance must participate in a statewide UCP by March 2002. The UCP is a "One-Stop Shopping" certification procedure that eliminates the need for DBE firms to obtain certifications from multiple agencies within the State. The CUCP is charged with the responsibility of certifYing fi1ms and compiling and maintaining the Database of certified DBEs for U.S. DOT grantees in California, pursuant to 49 CPR Part 26. The Database is intended to expand the use ofDBE firms by maintaining complete and current information on those businesses and the products and services they can provide to all grantees of California. Please complete the attached application and supplemental questionnaire ifyou wish to be considered for DBE certification and your business meets the following general guidelines: a) The firm must be at least 51% owned by one or more socially and economically disadvantaged individuals. b) The firm must be an independent business, and one or more ofthe socially and economically disadvantaged owners must control its management and daily operations. c) Only existing for-profit "Small Business Concerns," as defined by the Small Business Act and Small Business Administration (SBA) regulations may be certified. DBE applicants are first subject to the applicable small business size standards of the SBA. Second, the average annual gross receipts for the firm (including its affiliates) over the previous three fiscal years must not exceed U.S. DOT's cap of$22.41 million. d) The Personal Net Worth (PNW) of each socially and economically disadvantaged owner must not exceed $1.32 million, excluding the individual's ownership interest in the applicant firm and the equity in his/her primary residence. For firms applying for Airport Concession DBE certification: Please refer to the Airport Concessions Disadvantaged Business Enterprise (ACDBE) Certification Application for applicable average annual gross receipts and personal net worth dollar limitations. (Rev 2/28/20 II) 230 --------------------------------------- Page 2 Socially and economically disadvantaged individual means any individual who is a citizen of the United States (or lawfully admitted permanent resident) and who is a member of the following groups: Black American, Hispanic American, Native American, Asian-Pacific American, Subcontinent Asian American, or Women, or Any individual found to be socially and economically disadvantaged on a case-by-case basis by a certifying agency pursuant to the standards of the U.S. DOT 49 CFR Part 26. In order to avoid unnecessary delays, please complete all portions of the application and supplemental questionnaire, placing "N/A" next to items that are not applicable. Include all copies of documents requested on the application, and have the Affidavit of Certification notarized. Additional documentation may be requested if it is considered necessary to make a certification determination. Incomplete applications/supplemental questionnaires or applications/supplemental questionnaires without all the required documents will not be evaluated until such documents are submitted. We recommend keeping a copy of all submitted documents for your records. REMEMBER: It is no longer necessary to apply at more than one agency. If your firm meets the criteria for certification, it will be entered into the Database ofDBEs for all U.S. DOT grantees in California. Only firms currently certified as eligible DBEs may participate in the DBE programs of U.S. DOT grantees of California. Ifyou wish to be considered for Airport Concession DBE certification only, you will need to complete the Airport Concession DBE Certification Application Package, which can be accessed at www.CaliforniaUCP.com. The CUCP has established two Regional DBE Certification Clusters throughout the State to effectively facilitate statewide DBE certification activities. Please forward your completed certification packet to one of the agencies serving the county where your firm has its principal place ofbusiness. (See enclosed Roster of Certifying Agencies.) For Out-of-State Firms: The CUCP will not process a new application for DBE certification from a firm having its principal place of business in another state unless the firm has already been certified in that state. If your firm is located outside of California and is certified as a DBE in your home state, please forward your completed certification packet, along with a copy of your DBE certificate, to the California Department of Transportation. (See page 2 of the enclosed Roster of Certifying Agencies.) (Rev 2/28/2011) 231 CALIFORNIA UNIFIED CERTIFICATION PROGRAM INSTRUCTIONS FOR COMPLETING THE DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM UNIFORM CERTIFICATION APPLICATION NOTE: If you require additional space for any question in this application, please attach additional sheets or copies as needed, takiu!! care to indicate on each attached sheet/copy the section and number of this application to which it refers. Section 1: CERTIFICATION INFORMATION A. Prior/Other Certifications Check the appropriate box indicating for which program your firm is currently certified. If you are already certified as a DBE, indicate in the appropriate box the name of the certifying agency that has previously certified your firm, and also indicate whether your firm has undergone an onsite visit. If your firm has already undergone an onsite visit/review, indicate the most recent date of that review and the state UCP that conducted the review. B. Prior/Other Applications and Privileges Indicate whether your fim1 or any of the persons listed has ever withdrawn an application for a DBE program or whether any have ever been denied certification, decertified, debarred, suspended, or had bidding privileges denied or restricted by .!!!!Y state or local agency or Federal entity. If your answer is yes, indicate the date of such action, identifY the name of the agency, and explain fully the nature of the action in the space provided. Section 2: GENERAL INFORMATION A. Contact Information (I) State the name and title of the person who will serve as your fim1's primary contact under this application. (2) State the legal name of your firm, as indicated in your firm's Articles oflncorporation or charter. (3) State the primary phone number of your firm. (4) State a secondary phone number, if any. (5) State your firm's fax number, if any. (6) State your firm's or your contact person's email address. (7) State your firm's website address, if any. (8) State the street address of your firm (i.e. the physical location of its offices --not a post office box address). (9) State the mailing address of your firm, if it is different from your firm's street address. B. Business Profile (I) In the box provided, briefly describe the primary business and professional activities in which your firm engages. (2) State the Federal Tax TD number of your firm as provided on your firm's filed tax returns, if you have one. This could also be the Social Security number of the owner of your firm. (3) State the date on which your firm was officially established, as stated in your firm's Articles of Incorporation or charter. (4) State the date on which you and/or each other owner took ownership of the firm. (5) Check the appropriate box that describes the manner in which you and each other owner acquired ownership of your firm. If you checked "Other," explain in the space provided. Instructions 232 (6) Check the appropriate box that indicates whether your fim1 is "for profit." NOTE: lf you checked "No," then you do NOT qualifY for the DBE program and ilierefore do not need to complete the rest of this application. The DBE program requires all participating firms be for-profit enterprises. (7) Check ilie appropriate box that describes the legal form of ownership of your firm, as indicated in your firm's Articles of Incorporation. If you checked "Other," briefly explain in the space provided. (8) Check the appropriate box that indicates whether your firm has ever existed under different ownership, a different type of ownership, or a different name. If you checked "Yes," specifY which and briefly explain the circumstances in the space provided. (9) Indicate in the spaces provided how many employees your firm has, specifYing ilie number of employees who work on a full-time and part- time basis. ( 1 0) Specify the total gross receipts of your firm for each of the past three years, as declared in your finn's filed tax returns. C. Relationships with Other Businesses (I) Check the appropriate box that indicates whether your firm is co-located at any of its business locations, or whether your firm shares a telephone number(s), a post office box, any office space, a yard, warehouse, other facilities, any equipment, or any office staff with any other business, organization, or entity of any kind. If you answered "Yes," then specifY the name of the other firm(s) and briefly explain the nature of the shared facilities or other items in the space provided. (2) Check the appropriate box that indicates whether at present, or at any time in the past: (a) Your firm has been a subsidiary of any other firm; (b) Your firm consisted of a partnership in which one or more of the partners are other firms; (c) Your firm has owned any percentage of any other firm; and (d) Your firm has had any subsidiaries of its own. (3) Check ilie appropriate box that indicates whether any other firm has ever had an ownership interest in your firm. (4) If you answered "Yes" to any of the questions in (2)(a)-(d) or (3), identifY the name, address and type of business for each. D. Immediate Family Member Businesses Check the appropriate box iliat indicates whether any of your immediate family members own or manage Page 1 of3 another company. An "immediate family member" is any person who is your father, mother, husband, wife, son, daughter, brother, sister, grandmother, grandfather, grandson, granddaughter, mother-in-law, or father-in-law. If you answered "Yes," provide the name of each relative, your relationship to them, the name of the company they own or manage, the type of business. and whether they own or manage the company. Section 3: OWNERSHIP Identify all individuals or holding companies with any ownership interest in your firm, providing the information requested below (if your firm has more than one owner, provide completed copies of this section for each additional owner): A. Background Information (I) Give the name of the owner. (2) State his/her title or position within your firm. (3) Give his/her home phone number. ( 4) State his/her home (street) address. ( 5) Check the appropriate box that indicates this owner's gender. ( 6) Check the appropriate box that indicates this owner's ethnicity (check all that apply). If you checked "Other," specifY this owner's ethnic group/identity not otherwise listed. (7) Check the appropriate box to indicate whether this owner is a U.S. citizen. (8) If this owner is not a U.S. citizen, check the appropriate box that indicates whether this owner is a lawfully admitted permanent resident. If this owner is neither a U.S. citizen nor a lawfully admitted permanent resident of the U.S., then this owner is NOT eligible for certification as a DBE owner. This, however, does not necessarily disqualifY your firm altogether from the DBE program if another owner is a U.S. citizen or lawfully admitted permanent resident and meets the program's other qualifYing requirements. B. Ownership Interest (I) State the number of years during which this owner has been an owner of your fim1. (2) Indicate the dollar value of this owner's initial investment to acquire an ownership interest in your firm, broken down by cash, real estate, equipment, and/or other investment. (3) State the percentage of total ownership control of your firm that this owner possesses. ( 4) State the familial relationship of this owner to each other owner of your firm. (5) Indicate the number, percentage of the total, class, date acquired, and method by which this owner acquired his/her shares of stock in your finn. (6) Check the appropriate box that indicates whether this owner performs a management or supervisory function for any other business. If you checked "Yes," state the name of the other business and this owner's title or function held in that business. Instructions 233 (7) Check the appropriate box that indicates whether this owner owns or works for any other firm(s) that has ill!Y relationship with your firm. If you checked "Yes," identifY the name of the other business and this owner's title or function held in that business. Briefly describe the nature of the business relationship in the space provided. C. Disadvantaged Status NOTE: You only need to complete this section for each owner that is applying for DBE qualification (i.e. for each owner who is claiming to be "socially and economically disadvantaged" and whose ownership interest is to be counted toward the control and 51% ownership requirements of the DBE program) (I) Indicate in the space provided the total Personal Net Worth (PNW) of each owner who is applying for DBE qualification. Use the PNW calculator form at the end of this application to compute each owner's PNW. (2) Check the appropriate box that indicates whether any trust has ever been created for the benefit of this disadvantaged owner. If you answered "Yes," briefly explain the nature, history, purpose, and current value of the trust(s). Section 4: CONTROL A. Identify your firm's Officers and Board of Directors: (I) In the space provided, state the name, title, date of appointment, ethnicity, and gender of each officer of your firm. (2) In the space provided, state the name, title, date of appointment, ethnicity, and gender of each individual serving on your firm's Board of Directors. (3) Check the appropriate box that indicates whether any of your firm's officers and/or directors listed above perform a management or supervisory function for any other business. If you answered "Yes," identifY each person by name, his/her title, the name of the other business in which s/he is involved, and his/her function performed in that other business. (4) Check the appropriate box that indicates whether any of your firm's officers and/or directors listed above own or work for any other fim1(s) that has a relationship with your firm. If you answered "Yes," identifY the name of the firm, the officer or director, and the nature of his/her business relationship with that other firm. B. Identify your firm's management personnel (by name, title, ethnicity, and gender) who control your firm in the following areas: (1) Making of financial decisions on your firm's behalf, including the acquisition of lines of credit, surety bonds, supplies, etc.; (2) Estimating and bidding, including calculation of cost estimates, bid preparation and submission; (3) Negotiating and contract execution, including participation in any of your firm's negotiations and executing contracts on your firm's behalf; Page 2 of3 (4) Hiring and/or firing of management personnel, including interviewing and conducting performance evaluations; ( 5) Field/Production operations supervtsiOn, including site supervision, scheduling, project management services, etc.; (6) Office management; (7) Marketing and sales; (8) Purchasing of major equipment; (9) Signing company checks (for any purpose); and (I 0) Conducting any other financial transactions on your firm's behalf not otherwise listed. (II) Check the appropriate box that indicates whether any of the persons listed in (1) through (10) above perform a management or supervisory function for any other business. If you answered "Yes," identifY each person by name, his/her title, the name of the other business in which s/he is involved, and his/her function performed in that other business. (12) Check the appropriate box that indicates whether any of the persons listed in (I) through (I 0) above own or work for any other firm(s) that has a relationship with your firm. If you answered "Yes," identifY the name of the firm, the name of the person, and the nature of his/her business relationship with that other firm. C. Indicate your firm's inventory in the following categories: (1) Equipment State the type, make and model, and current dollar value of each piece of equipment held and/or used by your firm. Indicate whether each piece is either owned or leased by your firm. (2) Vehicles State the type, make and model, and current dollar value of each motor vehicle held and/or used by your firm. Indicate whether each vehicle is either owned or leased by your firm. (3) Office Space State the street address of each office space held and/or used by your firm. Indicate whether your firm owns or leases the office space and the current dollar value of that property or its lease. (4) Storage Space State the street address of each storage space held and/or used by your firm. Indicate whether your firm owns or leases the storage space and the current dollar value of that property or its lease. D. Does your firm rely on any other firm for management functions or employee payroll? Check the appropriate box that indicates whether your firm relies on any other firm for management functions or for employee payroll. If you answered "Yes," briefly explain the nature of that reliance and the extent to which the other firm carries out such functions. E. Financial Information (1) Banking Information (a) State the name of your firm's bank. (b) Give the main phone number of your firm's bank branch. Instructions 234 (c) Give the address of your firm's bank branch. (2) Bonding Information (a) State your firm's Binder Number. (b) State the name of your finn's bond agent and/or broker. (c) Give your agent's/broker's phone number. (d) Give your agent' s/broker' s address. (e) State your firm's bonding limits (in dollars), specifYing both the Aggregate and Project Limits. F. Identify all sources, amounts, and purposes of money loaned to your firm, including the names of persons or firms securing the loan, if other than the listed owner: State the name and address of each source, the original dollar amount and the current balance of each loan, and the purpose for which each loan was made to your firm. G. List all contributions or transfers of assets to/from your firm and to/from any of its owners over the past two years: Indicate in the spaces provided, the type of contribution or asset that was transferred, its current dollar value, the person or firm from whom it was transferred, the person or firm to whom it was transferred, the relationship between the two persons and/or firms, and the date ofthe transfer. H. List current licenses/permits held by any owner or employee of your firm. List the name of each person in your firm who holds a professional license or permit, the type of permit or license, the expiration date of the permit or license, and the license/permit number and issuing State of the license or permit. I. List the three largest contracts completed by your firm in the past three years, if any. List the name of each owner or contractor for each contract, the name and location of the projects under each contract, the type of work performed on each contract, and the dollar value of each contract. J. List the tht·ee largest active jobs on which your firm is currently working. For each active job listed, state the name of the prime contractor and the project number, the location, the type of work performed, the project start date, the anticipated completion date, and the dollar value of the contract. AFFIDAVIT & SIGNATURE Carefully read the attached affidavit in its entirety. Fill in the required information for each blank space, and sign and date the affidavit in the presence of a Notary Public, who must then notarize the form. Page 3 of3 DISADVANTAGED BUSINESS ENTERPRISE PROGRAM 49 C.F.R. PART 26 UNIFORM CERTIFICATION APPLICATION ROADMAP FOR APPLICANTS CD Should I apply? o Is your firm at least 51 %-owned by a socially and economically disadvantaged individual(s) who also controls the firm? o Is the disadvantaged owner a U.S. citizen or lawfully admitted permanent resident of the U.S.? o Does the disadvantaged owner's Personal Net Worth not exceed $1.32 million (excluding the individual's ownership interest in the applicant firm and the equity in his/her primary residence)? o Is your firm a small business that meets the Small Business Administration's (SBA's) size standard and does not exceed $22.41 million in gross annual receipts? o Is your firm organized as a for-profit business? ~ If you answered "Yes" to all of the questions above, you may be eligible to participate in the U.S. DOT DBE program. ~ Be sure to attach all of the required documents listed in the Documents Check List at the end of this form with your completed application. G) Where can I find more information? o U.S. DOT-http://osdbuweb.dot.gov/DBEProgram/index.cfm (this site provides useful links to the rules and regulations governing the DBE program, questions and answers, and other pertinent information) o SBA-http://www.sba.gov/services/contractingopportunities/sizestandardstopics/index.html (provides listing ofNAICS codes and Table of size standards) o 49 CFR Part 26 (the rules and regulations governing the DBE program) Updated 5/11/2011 Under Sec. 26.107 of 49 CFR Part 26, dated February 2, 1999, if at any time, the Department or a recipient has reason to believe that any person or firm has willfully and knowingly provided incorrect information or made false statements, the Department may initiate suspension or debarment proceedings against the person or finn under 49 CFR Part 29, take enforcement action under 49 CFR Part 31, Program Fraud and Civil Remedies, and/or refer the matter to the Department of Justice for criminal prosecution under 18 U .S.C. 100 I, which prohibits false statements in Federal programs. Page 1 of8 Uniform Certification Application 235 Section 1: CERTIFICATION INFORMATION A. Prior/Other Certifications Is your finn currently certified for ODBE Name of certifying agency: any of the following programs? (If Yes. check appropriate box(es)) Has your finn's state UCP conducted an on-site visit? 0 Yes, on I I State: ONo B. Prior/Other Applications and Privileges Has your firm (under any name) or any of its owners, Board of Directors, officers or management personnel, ever withdrawn an application for any of the programs listed above, or ever been denied certification, decertified, or debarred or suspended or otherwise had bidding privileges denied or restricted by any state or local agency, or Federal entity? 0 Yes, on _1_1_ 0 No If Yes, identify State and name of state, local, or Federal agency and explain the nature ofthe action: Section 2: GENERAL INFORMATION A. Contact Information (1) Contact person and Title: I (2) Legal name of finn: (3) Phone#: I ( 4) Other Phone #: I (5) Fax#: (6) E-mail: I (7) Website (ifhave one): (8) Street address of firm (No P.O. Box): City: County/Parish: State: Zip: (9) Mailing address of finn (if different): City: County/Parish: State: Zip: B Business Profile . (I) Describe the primary activities of your finn: (2) Federal Tax ID (if any): (3) This finn was established on I I I ( 4) 1/We have owned this finn since: I I ( 5) Method of acquisition (check all that apply): 0 Started new business 0 Bought existing business 0 Inherited business 0 Secured concession 0 Merger or consolidation 0 Other (explain) ( 6) Is your finn "for profit"? 0 Yes 0 No I ®STOP! If your finn is NOT for-profit, then you do NOT qualify for this program and do NOT need to fill out this application. Page 2 of8 Uniform Certification Application 236 (7) Type of firm (check all that apply): 0 Sole Proprietorship 0 Partnership 0 Corporation 0 Limited Liability Partnership 0 Limited Liability Corporation 0 Joint Venture 0 Other, Describe: (8) Has your firm ever existed under different ownership, a different type of ownership, or a different name? 0 Yes DNo IfYes, explain: (9) Number of employees: Full-time Part-time Total (1 0) Specify the gross receipts of the firm for the last 3 years: Year Total receipts$ Year Total receipts$ Year Total receipts$ c . R I . h' . hO h B . e at1ons 1ps w1t t er us messes (I) Is your firm co-located at any of its business locations, or does it share a telephone number, P.O. Box, office space, yard, warehouse, facilities, equipment, or office staff, with any other business, organization, or entity? 0 Yes DNo If Yes, identify: Other Firm's name: Explain nature of shared facilities: (2) At present, or at any time in the (a) been a subsidiary of any other firm? 0 Yes ONo past, has your firm: (b) consisted of a partnership in which one or more ofthe partners are other firms? 0 Yes DNo (c) owned any percentage of any other firm? DYes ONo (d) had any subsidiaries? 0 Yes ONo (3) Has any other firm had an ownership interest in your firm at present or at any time in the past? 0 Yes ONo (4) Ifyou answered "Yes" to any ofthe questions in (2)(a)-(d) and/or (3), identify the following for each (attach extra sheets, if needed): Name Address Tyge of Business 1. 2. 3. D. Immediate Famil Member Businesses Do any of your immediate family members own or manage another company? 0 Yes 0 No If Yes, then list (attach extra sheets, if needed): Name RelationshiQ Comgany Tyge of Business 1. 2. Own or Manage? Page 3 of8 Uniform Certification Application 237 Section 3: OWNERSHIP Identify all individuals or holding companies with any ownership interest in your firm, providing the information requested below (Jf more than one owner, attach separate sheets for each additional owner~: A B k dl~ ac {groun n ormation (1) Name: (2) Title: (3) Home Phone#: (4) Home Address (street and number): City: State: Zip: (5) Gender: 0 Male 0 Female (6) Ethnic group membership (Check all that apply): (7) U.S. Citizen: 0 Yes ONo 0 Black 0 Hispanic 0 Native American (8) Lawfully Admitted Permanent Resident: 0 Asian Pacific 0 Subcontinent Asian 0 Yes ONo 0 Other (specifY) B 0 h" I . wners 1p nterest (I) Number of years as owner: (2) Initial investment to ~ Dollar Value (3) Percentage owned: acquire ownership Cash $ (4) Familial relationship to other owners: interest in firm: Real Estate $ Equipment $ Other $ (5) Shares of Stock: Number Percentage Class Date acguired Method Acguired (6) Does this owner perform a management or supervisory function for any other business? DYes ONo If Yes, identify: Name of Business: Function/Title: (7) Does this owner own or work for any other firm(s) that has a relationship with this firm (e.g., ownership interest, shared office space, financial investments, equipment, leases, personnel sharing, etc.)? 0 Yes 0 N 0 IfYes, identity: Name ofBusiness: Function/Title: Nature of Business Relationship: C. Disadvantaged Status-NOTE: Complete this section only for each owner applying for DBE qualification (i.e. for each owner claiming to be socially and economically disadvantaged) (I) What is the Personal Net Worth (PNW) of the owner(s) applying for DBE qualification? (Use and attach the Personal Financial Statement form at the end of this application; attach additional sheets if more than one owner is applying) (2) Has any trust been created for the benefit of this disadvantaged owner(s)? 0 Yes 0 No If Yes, explain (attach additional sheets if needed): Page 4 of8 Uniform Certification Application 238 Section 4: CONTROL A. Identify your firm's Officers & Board of Directors (if additional space is re~ uired, attach a separate sheet): Name Title Date Appointed Ethnicity Gender (1) (a) (b) Officers (c) of the (d) (e) Company (2) Boa•·d of (a) Directo•·s (b) (c) (d) (e) (3) Do any of the persons listed in (1) and/or (2) above perform a management or supervisory function for any other business? 0 Yes 0 No If Yes, identify for each: Person: _______________ Title: ____________ _ Business: Function: (4) Do any of the persons listed (I) and/or (2) above own or work for any other firm(s) that has a relationship with this finn (e.g., ownership interest, shared office space, financial investments, equipment, leases, personnel sharing, etc.)? 0 Yes 0 No If Yes, identify for each: Firm Name: _____________ Person: ___________ _ Nature of Business Relationship: B. Identify your firm's management personnel who control your firm in the following areas (If more than two persons attach a separate sheet)• Name Title Ethnicity Gender (I) Financial Decisions a. (responsibility for acquisition of lines of b. credit, surety bonding, supplies, etc.) (2) Estimating and bidding a. b. (3) Negotiating and Contract a. Execution b. ( 4) Hiring/firing of management a. personnel b. (5) Field/Production Operations a. Supervisor b. (6) Office management a. b. (7) Marketing/Sales a. b. Page 5 of8 Uniform Certification Application 239 (8) Purchasing of major a. equipment b. (9) Authorized to Sign Company a. Checks (for any purpose) b. (I 0) Authorized to make a. Financial Transactions b. (II) Do any of the persons listed in (I) through ( 1 0) above perform a management or supervisory function for any other business? 0 Yes 0 No If Yes, identify for each: Person: Title: Business: Function: ( 12) Do any of the persons listed in (1) through (I 0) above own or work for any other firm(s) that has a relationship with this firm (e.g., ownership interest, shared office space, financial investments, equipment, leases, personnel sharing, etc.)? DYes ONo IfYes, identifY for each: Firm Name: Person: Nature of Business Relationship: C. Indicate your firm's inventory in the following categories (attach additional sheets if needed): (1) Equipment Type of Equipment Make/Model Current Value Owned or Leased? (a) (b) (c) (21 Vehicles Type of Vehicle Make/Model Current Value Owned or Leased? (a) (b) (c) (3) Office Space Street Address Owned or Leased? Current Value of Property or Lease (a) (b) (4) Storage Space Street Address Owned or Leased? Current Value of Property or Lease (a) (b) D. Does your firm rely on any other firm for management functions or employee payroll? 0 Yes 0 No I If Yes, explain: Page 6 of8 Uniform Certification Application 240 E. Financial Informatio n~--------------------------------------------------------------, (1) Banking Information: (a) Name of bank: (c) Address ofbank: (2) Bonding Information: Ify (b) N arne of agent/broker (d) Address of agent/broker: (e) Bonding limit: Aggregate li F. Identify all sources, a persons or firms secu Name of Source Address of I. 2. " .J. (b) Phone No: ( City: State: Zip: ou have bonding capacity, identi1)r: (a) Binder No: ____________________ _ (c)PhoneNo:( ) ________ _ -----------------------City: State: __ Zip: __ _ mit $ Pro"ect limit $ mounts, and purposes of money loaned to your firm, including the names of any rin the loan, if other than the listed owner: Source Name of Person Securin the Loan Original Amount Current Balance Purpose of Loan G. List all contributions past two years attac or transfers of assets to/from your firm and to/from any of its owners over the h additional sheets i neede : Cont•·ibution/Asset Doll ar Value From Transferred To Whom Relationship Date of Transfer 1. 2. 3. H. Transferred List current licenses/ permits held by any owner and/or employee of your firm (e.g. contractor, etc. (attach additional sheets i needed): enJ;ineer, architect, Name of License/Permit H older Type of License/Permit Expiration Date License Number and State I. 2. 3. I. I. 2. " .J. List the three lar~est Name of Owner/Contractor Pro·ect Page 7 of8 241 Dollar Value of Contract Uniform Certification Application J L. t th th IS e ree arges t f . b ac 1ve .10 s on w h. h fi tl 1c your 1rm IS curren ty wor mg: Name of Prime Location of Type of Work Project Anticipated Dollar Contractor and Project Project Start Date Completion Value of Number Date Contract 1. 2. " .). Page 8 of8 Uniform Certification Application 242 DBE UNIFORM CERTIFICATION APPLICATION SUPPORTING DOCUMENTS CHECKLIST In order to complete your application for DBE cet1ification, you must attach copies of all of the following documents as they apply to you and your firm. All Applicants 0 Work experience resumes (that include places of ownership/employment with corresponding dates), for all owners and officers of your firm 0 Personal Financial Statement (form available with this application) 0 Personal tax returns for the past three years, if applicable, for each owner claiming disadvantaged status 0 Your firm's tax returns (gross receipts) and all related schedules for the past three years 0 Documented proof of contributions used to acquire ownership for each owner (e.g. both sides of cancelled checks) 0 Your firm's signed loan agreements, security agreements, and bonding forms 0 Descriptions of all real estate (including office/storage space, etc.) owned/leased by your firm and documented proof of ownership/signed leases 0 List of equipment leased and signed lease agreements 0 List of construction equipment and/or vehicles owned and titles/proof of ownership 0 Documented proof of any transfers of assets to/from your firm and/or to/from any of its owners over the past two years 0 Year-end balance sheets and income statements for the past three years (or life of firm, if less than three years); a new business must provide a current balance sheet 0 All relevant licenses, license renewal forms, permits, and haul authority forms 0 DBE certifications, denials, and/or decertifications, if applicable 0 Bank authorization and signatory cards 0 Schedule of salaries (or other compensation or remuneration) paid to all officers, managers, owners, and/or directors of the firm 0 Trust agreements held by any owner claiming disadvantaged status, if any Partnership or Joint Venture 0 Original and any amended Pmtnership or Joint Venture Agreements Corporation or LLC 0 Official Articles oflncorporation (signed by the state official) 0 Both sides of all corporate stock certificates and your firm's stock transfer ledger 0 Shareholders' Agreement 0 Minutes of all stockholders and board of directors meetings 0 Corporate by-laws and any amendments 0 Corporate bank resolution and bank signature cards D Official Ce1tificate of Formation and Operating Agreement with any amendments (for LLCs) Trucking Company 0 Documented proof of ownership of the company 0 Insurance agreements for each truck owned or operated by your firm 0 Title(s) and registration certificate(s) for each truck owned or operated by your firm D List of U.S. DOT numbers for each truck owned or operated by your firm Regular Dealer 0 Proof of warehouse ownership or lease 0 List of product Jines carried D List of distribution equipment owned and/or leased NOTE: The specific state UCP to which you are applying may have additional required documents that you must also supply with your application. Contact the appropriate certifying agency to which you are applying to find out if more is required. (See Supplemental Document Checklist) 243 CALIFORNIA UNIFIED CERTIFICATION PROGRAM (CUCP) Supplemental Document Checklist Firm Name: __________________________________________________________ ___ In order to complete your application for DBE certification, you must also attach copies of all of the following documents: D Documentation of Group Membership. Please comply with one of the following: (I) For each owner seeking social disadvantaged status on the basis of Ethnic membership, please provide a document (e.g., birth ce1tificate, U.S. Passport, Green Card, parents' birth certificate, etc.) evidencing Ethnic heritage or similar document evidencing Ethnic community affiliation. (2) For each owner seeking social disadvantaged status on the basis of Gender, please provide a document evidencing gender (e.g., birth certificate, driver's license, etc.). (3) For each owner seeking an individual showing of social disadvantage, please provide documents you deem appropriate for consideration. D Documentation of U.S. citizenship or lawful permanent residence, e.g., U.S. bi1th certificate, Green Card, etc. Supplemental Questionnaire l. Is the firm's principal place of business in California? Yes_O_ NoD If no, please include a copy of the firm's DBE certificate issued in its home state. (The CUCP will not process a new application for DBE certification from a firm having its principal place of business in another state unless the firm has already been certified in that state.) 2. Is the firm authorized to do business in the State of California? Yes_D_ NoD 3. List all office locations in California:. ___________________________ _ 4. Has the firm ever done business with any U.S. DOT Grantees of California? Yes_O_ No D Ifyes, please indicate the agency name(s) and latest year(s): Agency Agency Latest Year 5. Is there an upcoming project in which the firm is interested and therefore, would need to be certified prior to a specific date in order to be counted toward DBE participation? Yes D No D If yes, please provide the following information: Agency letting contract: ________________________________ _ Contract Number Bid Opening date or and Name: _________________ Request for Proposal due date:. ________ __ 6. Indicate areas where you prefer to do your work. 0 01 Alameda 0 II Glenn 0 21 Marin 0 02 Alpine 0 12 Humboldt 0 22 Mariposa 0 03 Amador 0 13 Imperial 0 23 Mendocino 0 04 Butte 0 14 Inyo 0 24 Merced 0 05 Calaveras 0 15 Kern 0 25 Modoc 0 06 Colusa 0 16 Kings 0 26 Mono 0 07 Contra Costa 0 17 Lake 0 27 Monterey 0 08 Del Norte 0 18 Lassen 0 28 Napa 0 09 El Dorado 0 19 Los Angeles 0 29 Nevada 0 10 Fresno 0 20 Madera 0 30 Orange 0 31 Placer 0 32 Plumas 0 33 Riverside 0 34 Sacramento 0 35 San Benito 0 36 San Bernardino 0 37 San Diego 0 38 San Francisco 0 39 San Joaquin 0 40 San Luis Obispo 244 0 41 San Mateo 0 42 Santa Barbara 0 43 Santa Clara 0 44 Santa Cruz 0 45 Shasta 0 46 Sierra 0 47 Siskiyou 0 48 Solano 0 49 Sonoma 0 50 Stanislaus 0 51 Sutter 0 52 Tehama 0 53 Trinity 0 54 Tulare 0 55 Tuolumne 0 56 Ventura 0 57 Yolo 0 58 Yuba (Rev 212011) AFFIDAVIT OF CERTIFICATION This form must be signed and notarized for each owner upon which disadvantaged status is relied. A MATERIAL OR FALSEST ATEMENT OR OMISSION MADE IN CONNECTION WITH THIS APPLICATION IS SUFFICIENT CAUSE FOR DENIAL OF CERTIFICATION, REVOCATION OF A PRIOR APPROVAL, INITIATION OF SUSPENSION OR DEBARMENT PROCEEDINGS, AND MAY SUBJECT THE PERSON AND/OR ENTITY MAKING THE FALSE STATEMENT TO ANY AND ALL CIVIL AND CRIMINAL PENALTIES AVAILABLE PURSUANT TO APPLICABLE FEDERAL AND STATE LAW. ~-----------(full name printed), swear or affirm under penalty of law that I am ________ (title) of applicant firm (firm name) and that I have read and understood all of the questions in this application and that all of the foregoing information and statements submitted in this application and its attachments and supporting documents are true and correct to the best of my knowledge, and that all responses to the questions are full and complete, omitting no material information. The responses include all material information necessary to fully and accurately identifY and explain the operations, capabilities and pertinent history of the named firm as well as the ownership, control, and affiliations thereof. I recognize that the information submitted in this application is for the purpose of inducing certification approval by a government agency. I understand that a government agency may, by means it deems appropriate, determine the accuracy and truth of the statements in the application, and I authorize such agency to contact any entity named in the application, and the named firm's bonding companies, banking institutions, credit agencies, contractors, clients, and other certifYing agencies for the purpose of verifying the information supplied and determining the named firm's eligibility. I agree to submit to government audit, examination and review of books, records, documents and files, in whatever form they exist, ofthe named firm and its affiliates, inspection of its places(s) of business and equipment, and to permit interviews of its principals, agents, and employees. I understand that refusal to permit such inquiries shall be grounds for denial of certification. If awarded a contract or subcontract, I agree to promptly and directly provide the prime contractor, if any, and the Department, recipient agency, or federal funding agency on an ongoing basis, current, complete and accurate information regarding (I) work performed on the project; (2) payments; and (3) proposed changes, if any, to the foregoing arrangements. I agree to provide written notice to the recipient agency or Unified Certification Program (UCP) of any material change in the information contained in the original application within 30 calendar days of such change (e.g., ownership, address, telephone number, etc.). I acknowledge and agree that any misrepresentations in this application or in records pertaining to a contract or subcontract will be grounds for terminating any contract or subcontract which may be awarded; denial or revocation of certification; suspension and debarment; and for initiating action under federal and/or state law concerning false statement, fraud or other applicable offenses. I certifY that I am a socially and economically disadvantaged individual who is an owner of the above-referenced firm seeking certification as a Disadvantaged Business Enterprise (DBE). In support of my application, I certifY that I am a member of one or more of the following groups, and that I have held myself out as a member of the group(s) (check all that apply): Female Hispanic American Native American Other (specifY) 0 0 0 0 Black American Asian-Pacific American Subcontinent Asian American Affidavit Page I of2 245 0 0 0 (Rev. 2/28/2011) I certifY that I am socially disadvantaged because I have been subjected to racial or ethnic prejudice or cultural bias, or have suffered the effects of discrimination, because of my identity as a member of one or more of the groups identified above, without regard to my individual qualities. I further certify that my personal net worth does not exceed $1,320,000, and that I am economically disadvantaged because my ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially and economically disadvantaged. I declare under penalty of perjury that the information provided in this application and supporting documents is true and correct. Executed on _____________ (Date) Signature _____________ _ (DBE Applicant) NOTARY CERTIFICATE Affidavit Page 2 of2 246 ., DISADVANTAGED BUSINESS ENTERPRISE (DBE) and ,, AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE (ACDBE) /"T' ... PERSONAL FINANCIAL STATEMENT -:1.-........... \ \ i "Jt'IEfl<·EH.fiH<Xrll>' I'N.C)(;I{_\'\1 As of ' Complete this form for each individual whose ownership and control are relied upon for DBE or A CD BE certification. Name(s) Are these figures for a married couple'' Yes Uo_ u Residence Address: Residence Phone: City, State, & Zip Code: Business Name of Applicant: Business Phone: ASSETS (Omit Cents) LIABILITIES (Omit Cents) Cash on hand & in Banks ... .. .................................. $ Accounts Payable .. ..................... $ Savings/Other Cash Accounts .................................. $ Notes Payable to Banks and Others .. ......... $ IRA or Other Retirement Accounts .......................... $ (Describe in Section 2) Accounts & Notes Receivable .. . .............................. $ Installment Account (Auto) . .$ Life Insurance-Cash Surrender Value Only .. .$ Installment Account (Other) . $ (Complete Section 7) Stocks and Bonds ... ............ $ Loan on Life Insurance .. $ Mortgages on Real Estate ... . ............... $ Real Estate . . . . $ (Describe in Section 3) (Describe in Section 3) Unpaid Taxes . ...................................... $ Automobile-Present Value .. .............. $ (Describe in Section 5) Other Personal Property ... .. .. .. . ..... $ Other Liabilities . . ..................... $ (Describe in Section 6) (Describe m Section 4) Total ............. $ 0 Other Assets $ (Describe in Section 4) Net Worth .............................................. $ Total .............................. $ 0 (Subtract total Liabilities from Total Assets) Contingent Liabilities (will not be used in determining net worth) As Endorser or Co-Maker ......................................... $ Legal Claims & Judgments ..................................... $ Provision for Federal Income Tax ...................... $ Other Special Debt ............................................. $ Section I. Separate Property (for married applicants only) Describe all separate property held by you or your spouse, their cun·ent values, and why they are separate. Section 2. Notes Payable to Banks and Others. (Use attachments if necessary. Each attachment must be identified as a part of this statement and signed.) Name and Address of Note holder(s) Original Current Payment Frequency How Secured or Endorsed Balance Balance Amount (monthly, etc.) Type of Collateral CUCP PNW Form Rev 2128/2011 247 Section 3. Real Estate Owned. (List each parcel separately. Identify primary Residence. Use attachment if necessary Each attachment must be identified as apart of this statement and signed.) Property A Property B Property C Type of Property (e.g. residential, condo, timeshare, commercial, etc.) Address (include street, city and state) Date Purchased Original Cost Present Market Value Name & Address of Mortgage Holder Mortgage Balance Amount of Payment per MonthlY ear Status of Mortgage Section 4. Other Personal Property and Other Assets. (Describe. and if any is pledged as security, state name and address of lien holder, amount of lien, terms of oavment and if delinQuent, describe delinquency) Section 5. Unpaid Taxes. (Describe in detail, as to type, to whom payable, when due, amount, and to what property, if any, a tax lien attaches.) Section 6. Other Liabilities. (Describe in detail.) Section 7. Life Insurance Held. (Give face amount and cash surrender value of policies-name of insurance company and beneficiaries) I certify the above and the statements contained in the attach ments are true and accurate as ofth e stated date(s). These statements are made for the purpose of becoming eligible for the Disadvantaged Business Enterprise or Airport Concession Disadvantaged Business Enterprise Programs. I authorize the CUCP to make inquiries as necessary to verify the accuracy of the statements made and to determine my creditworthiness Signature: Date: Signature: Date: CUCP PNW Form Rev 2/28/2011 248 Instructions to Assist in Completing the Personal Financial Statement for the California Unified Certification Program Please do not make adjustments to your figures pursuant to U.S. Department of Transportation (U.S. DOT) regulations 49 CFR Part 26 and Pa1t 23. The agency that you apply to will use the inf01mation provided on your completed Personal Financial Statement to determine your Personal Net Worth according to 49 CFR Part 26 and Pmt 23. An individual's Personal Net W01th, according to 49 CFR Part 26 and Part 23 includes only his or her own sh are of assets held separately, jointly. or as community property with the individual's spouse and excludes the following: • Individual's ownership interest in the applicant firm; • Individual's equity in his or her primary residence; • Tax and interest penalties that would accrue i fretirement savings or investments (e.g., pension plans, Individual Retirement Accounts, 40l(k) accounts, etc.) were distributed at the present time. For Airport Concessions Only: • Other assets for which the individual is currently liable, which are properly documented and for which the individual's persona I assets are encumbered to support existing financing for the A CD BE Business. to a maximum of $3 million. Personal Net Worth limit for DBE certification in accordance with 49 CFR Part 26 If your Personal Net Wmth, according to 49 CFR Pmt 26, exceeds the $1.32 million cap and you, individually, or you and other individuals are the majority owners of an applicant firm, the firm is not eligible for DBE certification. If the Personal Net Worth according to 49 CFR Part 26 of the majority owner(s) exceeds the $1.32 million cap at any time after your finn is certified. the finn is no longer eligible for certification. Should that occur, it is your responsibility to contact your certifying agency in writing to advise that your firm no longer qualifies. Personal Net Worth limit for ACDBE certification in accordance with 49 CFR Part 23 If your Personal Net Worth, according to 49 CFR Part 23, exceeds the $750,000 cap and you, individually, or you and other individuals are the majority owners of an applicant firm, the fi1m is not eligible for A CD BE certification. If the Personal Net Worth according to 49 CFR Part 23 of the majority owner(s) exceeds the $750,000 cap at any time after your firm is certified, the fi1m is no longer eligible for certification. Should that occur, it is your responsibility to contact your certifying agency in writing to advise that your firm no longer qualifies. General Instructions >-You must fill out all line items on the Personal Financial Statement to the best of your ability. >-If necessary, use additional sheet(s) of paper to report all information and details. >-If you have any questions about completing this fo1m, please contact one of the certifying agencies on the Roster of Certifying Agencies. Specific Instructions DATE AND CONTACT INFORMATION Be sure to include the date in the upper right comer of the first page and your contact infmmation. Indicate whether the figures reported are for a married couple. ASSETS All assets must be reported at their current fair market values as of the date of your statement. Assessor's assessed value for real estate, for example, is not acceptable. Assets held in a trust generally should be included. Cash on hand & in Banks: Enter the total amount of cash on-hand and in bank accounts other than savings. Savings Accounts: Enter the total amount in all savings accounts. IRA or other Retirement Account: Enter the total present value of alllRAs and other retirement accounts, including any deferred compensation and pension plans. Accounts & Notes Receivable: Enter the total value of all monies owed to you personally, if any. This should include shareholder loans to the applicant firm. if any. Life Insurance-Cash Surrender Value Only: Enter the value of any life insurance polices. This amount should be cash surrender value only, not the amount a beneficiary would receive upon your death, also known as face value. A complete description is required in Section 7. Stocks and Bonds: Enter the current market value of your stocks and bonds. Real Estate: Enter the current fair market value of all real estate owned. A complete listing and description of all real estate owned is required in Section 3. Automobile-Present Value: Enter the current fair mm·ket value of all automobiles owned. Other Personal Property: Enter the current fair market value of all other personal property owned. but not included in the previous entries. A complete description of these assets is required in Section 4. Other Assets: Enter the current fair market value of all other assets owned, but not included in the previous entries. A complete description of these assets is required in Section 4. LIABILITIES Accounts Payable: Enter the total value of all unpaid accounts payable that is your responsibility. Notes Payable to Bank and Others: Enter the total amount due on all notes payable to banks and others. This should not. however, include any mortgage balances. A complete description of all notes payable to banks and others is required in Section 2. Installment Account (Auto): Enter amount of the present balance ofthe debt that you owe for auto installment account. Rev 2128/2011 249 Installment Account (Other): Enter amount of the present balance of the debt that you owe for other installment account. Loans on Life Insurance: Enter the total value of all loans due on life insurance policies. Mortgages on Real Estate: Enter the total balance on all mmtgages payable on real estate. A complete breakdown of all mortgages on real estate is required in Section 3. l.Jnpaid Taxes: Enter the total amount of all taxes that are currently due, but are unpaid. Contingent tax liabilities or anticipated taxes tor current year should not be included. A complete description is required in Section 5. Other Liabilities: Enter the total value due on all other liabilities not classified in the previous entries. A complete description is required in Section 6. Net Worth: To compute Net Worth, add all liabilities and put that figure in the Total Liabilities line. Then subtract Total Liabilities from Total Assets to get your Net Worth. To check your figures, add Total Liabilities and Net Worth and the sum must equal Total Assets. If your figures do not match, your form will be retumed to you to correct and complete again. CONTINGENT LIABILITIES Contingent liabilities are liabilities that belong to you only if an event(s) should occur. For example, if you have co-signed on a relative's loan, but you are not responsible for the debt until your relative defaults, that is a contingent liability. Contingent liabilities do not count toward your net wmth until they become actual liabilities. As Endorser or Co-Maker: Enter the total potential liabilities due as a result of being a co-signer for a loan or other commitments. Legal Claims and Judgments: Enter the potential liabilities due as a result of legal claims from judgments, lawsuits, etc. Provisions for Federal Income Tax: Enter the total amount of all federal taxes tor which you are potentially liable due to an anticipated gain on the pending sale of an asset or other circumstances, such as pending disputes or litigation which could possibly result in a personal tax liability. Other Special Debt: Enter the total amount due on all remaining potential debts not accounted for. SECTION L SEPARATE PROPERTY IdentifY all property that is not held jointly or as community property, include values, ownership. and a brief explanation why the property is not held jointly. SECTION 2. NOTES PAYABLE TO BANKS AND OTHERS Enter the name and address of note holder(s), original balance, current balance, payment amount, fi·equency, and how secured for each note payable as entered in the "Liabilities'' column. Do not include loans for your business or mortgages for your properties. SECTION 3. REAL ESTATE OWNED Starting with your primary residence (be sure to identify it as your primary residence), enter the type of property, address, date of purchase, original cost, present fair market value, name and address of mortgage holder, mortgage account number, mortgage balance, amount of payment, and status of mortgage for all real estate held. Please ensure that this section contains all real estate owned, including rental properties, vacation properties, commercial properties, etc. Total "Present Market Value" amounts should co1respond with the "'Real Estate" amount listed in the "Assets" column. Additionally, total "Mortgage Balance" amounts should correspond with the "Mortgages on Real Estate" amount listed in the "Liabilities" column. Attach additional sheets if needed. SECTION 4. OTHER PERSONAL PROPERTY AND OTHER ASSETS Itemize and describe in detail other personal property and other assets owned as listed in the ''Assets" column. For other personal property, include boats, trailers, jewelry. furniture, household goods, collectibles, clothing, etc. For other assets, include equity interest in other businesses, trusts, investments, etc. SECTION 5. UNPAID TAXES Describe in detail as to the type, to whom payable, when due, amount, and to what property, if any, the tax lien attaches. Please refer to the unpaid taxes listed in the "Liabilities" column. If none, state "NONE." This section should not include the contingent tax liabilities or anticipated taxes owed for the current year. For any unusually large amounts. you must include documentation, such as tax liens, to support the amounts. SECTION 6. OTHER LIABILITIES Describe in detail any other liabilities as referenced by the value listed in the "Liabilities" column. If none, state "NONE." For any unusually large amounts, you must include documentation, such as bills, to support the amounts. SECTION 7. LIFE INSURANCE HELD Describe all life insurance policies held. Please be sure to include the face amount of the policies, name of insurance company and beneficiaries and cash surrender values of the policies. EXECUTION OF STATEMENT Be sure to sign and date at the end of the statement. Rev 2/28/2011 250 CALIFORNIA UNIFIED CERTIFICATION PROGRAM (CUCP) NAICSCodes The California Unified Certification Program adopted the 2002 North American Industry Classification System (NAICS), an updated federal classification system, on October 27, 2003. Please indicate below areas of expertise that you perform in order of importance. Enclosed is a partial list ofNAICS codes for your convenience. For a full list ofNAICS codes and assistance in locating appropriate NAICS codes and determining if your firm meets U.S. Small Business Administration (SBA) and U.S. DOT size standards, a search tool is available on the SBA web site at: http://www.sba.gov/size/indextableofsize.html. DBE applicants are first subject to the applicable small business size standards of the Small Business Administration (SBA). Second, the average annual gross receipts for the firm (including its affiliates) over the previous three fiscal years must not exceed the U.S. Department of Transportation's cap of $22.41 million, as amended pursuant to SAFETEA-LU. Please note that size standards are subject to change at any time by the SBA. If you do not have Internet access or need assistance, please contact one of the certifYing agencies on the enclosed Roster. NA ICS"------C=o:::.!d=e Description ofWork/Service Rev 2/28/2011 251 --------------------------------------------------------------- 110000 111000 112000 113000 114000 115000 210000 211000 212000 213000 220000 221110 221120 221310 230000 236000 236115 236116 236117 236118 236210 236220 237000 237110 237120 237130 237210 237310 237990 237990 238000 238110 238120 238130 238140 238150 238160 238170 238190 238210 238220 238290 238310 238320 238330 238340 238350 238390 238910 238990 238990 CALIFORNIA UNIFIED CERTIFICATION PROGRAM List of NAICS Codes (partial) Agriculture, Forestry, Fishing and Hunting Crop Production Animal Production Forestry and Logging Fishing, Hunting and Trapping Support Activities for Agriculture and Forestry Mining Oil and Gas Extraction Mining (except Oil and Gas) Support Activities for Mining Utilities Hydroelectric, Fossil Fuel, Nuclear and Other Electric Power Generation Electric Power Transmission, Control and Distribution Water Supply and Irrigation Systems Construction* Construction of Buildings New Single-Family Housing Construction (except Operative Builde,.rs} ... ·~····~~· . . ........ ~ .. . . ···~ .. ~~···~· .. New Multifamily Housing Construction (except Operative Builders) New HousingOperative Builders Residential Remodelers Industrial Building Construction Commercial and Institutional Building Construction Heavy and Civil Engineering Construction Water andS,ewer Line and Related Structures Construction Oil and GasPipeline and Related Structures Construction ·Power and Communication Line and Related Structures Construction Land Subdivision Highway, Street, and Bridge Construction OtherHeavy and Civil Engineering Construction Dredging and Surface Cleanup Activities Specialty Trade Contractors Pour~ed Concrete Foundation and Structure Contractors Structural Steel and Precast Concrete Contractors Framing Contractors Masonry Contractors Glass and Glazing. Contractors Roofing Contractors Siding Contractors Other Foundation, Structure, and Building Exterior Contractors Electrical Contractors Plumbing, Heating, and Air-Conditioning Contractor!; Other Building Equipment Contractors Drywall ancl Insulation Contractors Painting and Wall Covering Contractors Flooring Contractors Tile and Terrazzo Contractors Finish Carpentry Contractors Other Building Finishing Contractors Site Preparation Contractors All Other Specialty Trade Contractors Building and Property Specialty Trade Services 310000 339999 311000 312000 313000 314000 315000 315211 315212 315220 315230 315299 315999 316000 316211 316213 316214 316219 • 321000 322000 323000 323110 323111 323112 323113 323114 323115 323116 323117 323118 323119 323121 323122 324000 324121 324122 325000 326000 326211 326212 326220 ! 326291 326299 327000 • 331000 332000 332116 332322 i 332323 332710 332721 332996 333000 333120 333311 333313 Manufacturing Food Manufacturing Beverage and Tobacco Product Manufacturing Textile Mills Textile Product Mills Apparel Manufacturing Men's and Boys' Cut and Sew Apparel Contractors Women's, Girls', and Infants' Cut and Sew Apparel Contractors Men's and Boys' Cut and Sew Apparel Manufacturing Women's and Girls' Cut and Sew Apparel Manufacturing All OtherCutandSew Apparel Manufacturing Other Apparel Accessoriesand Other Apparel Manufacturing Leather and Allied Product Manufacturing ~ubb~eL iJnct Plastics Footwear Manufacturing ... ~~~11~sEoC>.IVJ~iJr (except Athletic) Manufacturing . \1\{olll~n·s Footwear (except Athletic) Manufacturing Qther Footwear Manufacturing Wood Product Manufacturing Paper Manufacturing Printing and Related Support Activities Commercial Lithographic Printing Commercial Gravure Printing Commercial Flexographic Printing Commercial Screen Printing Quick Printing Digital Printing ManifoldBusiness Forms Printing Books Printing Blankbook, Loose-leaf Binder and Device Manufacturing Other Commercial Printing Tradebinding and Related Work Pre press S~rvices Petroleum and Coal Products Manufacturing Asphalt Paving Mixture and Block Manufacturing Asphalt Shingle and Coating Materials Manufacturing Chemical Manufacturing Plastics and Rubber Products Manufacturing TireManufacturing (except Retreading) Tire Retreading Rubber and Plastics Hoses and Belting Manufacturing Rubber Product Manufacturing for Mechanical Use j\.11 Qther .Rubber Product Manufactljring Nonmetallic Mineral Product Manufacturing Prjmary Metal Manufacturing fabricated Metal Product Manufacturing Metal Stamping Sheet Metal Work Manufacturing . Ornamental and Architectural Metal Work Manufacturing Machine Shops Precision Turned Product Manufacturing Fabricated Pipe and Pipe Fitting Manufacturing ~Machinery Manufacturing ~Q()nStruction Machinery Manufacturing Automatic Vending Machine Manufacturing Office Machinery Manufacturing *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. (Rev. 81106) (This document contains a partial list of NAICS codes. For a complete list of NAICS codes, please visit www.sba.gov/sizelindextableofsize.html) Page 1 252 California Unified Certification Program List of NAICS Codes (partial) 333414 333415 333514 333613 333618 333911 333921 333922 333923 333924 334000 334111 334112 334113 334119 334210 334220 334290 334310 334417 334418 334419 334511 334512 334513 334514 334518 334519 334611 334612 334613 335000 336000 336112 336120 336211 336212 336311 336312 336321 336322 336330 336340 336350 336360 336370 336391 336399 Heating Equipment (except Warm Air Furnaces) Manufacturing Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing Special Die and Tool, Die Set, Jig and Fixture Manufacturing Mechanical Power Transmission Equipment Manufacturing Other Engine Equipment Manufacturing Pump and Pumping Equipment Manufacturing Elevator and Moving Stairway Manufacturing Conveyor and Conveying Equipment Manufacturing Overhead Traveling Crane, Hoist and Monorail System Manufacturing Industrial Truck, Tractor, Trailer and Stacker Machinery Manufacturing Computer and Electronic Product Manufacturing Electronic Computer Manufacturing Computer Storage Device Manufacturing Computer Terminal Manufacturing Other Computer Peripheral Equipment Manufacturing Telephone Apparatus Manufacturing Radicand Television Broadcasting and Wireless Communications Equipment Manufacturing Other Communications Equipment Manufacturing Audio and Video Equipment Manufacturing Electronic Connector Manufacturing Printed Circuit Assembly (Electronic Assembly) Mfg Other Electronic Component Manufacturing Search, Detection, Navigation, Guidance, Aeronautical, and Nautical System and Instrument Manufacturing Automatic Environmental Control Manufacturing for Residential, Commercial and Appliance Use Instruments and Related Products Manufacturing for Measuring, Displaying, and Controlling Industrial Process Variables Totalizing Fluid Meter and Counting Device Manufacturing Watch, Clock, and Part Manufacturing Other Measuring and Controlling Device Manufacturing Software Reproducing Prerecorded Compact Disc (except Software), Tape, and Record Reproducing Magnetic and Optical Recording Media Manufacturing Electrical Equipment, Appliance and Component Manufacturing Transportation Equipment Manufacturing Light Truck and Utility Vehicle Manufacturing Heavy Duty Truck Manufacturing Motor Vehicle Body Manufacturing Truck Trailer Manufacturing Carburetor, Piston, Piston Ring and Valve Manufacturing Gasoline Engine and Engine Parts Manufacturing Vehicular Lighting Equipment Manufacturing Other Motor Vehicle Electrical and Electronic Equipment Manufacturing Motor Vehicle Steering and Suspension Components (except Spring) Manufacturing Motor Vehicle Brake System Manufacturing Motor Vehicle Transmission and Power Train Parts Manufacturing Motor Vehicle Seating and Interior Trim Manufacturing Motor Vehicle Metal Stamping Motor Vehicle Air-Conditioning Manufacturing All Other Motor Vehicle Parts Manufacturing 336411 336510 336611 336991 336999 337000 337127 337211 337214 337215 337920 339000 339111 339950 339991 420000 423000 423110 423120 423130 423140 423210 423310 423320 423330 423390 423410 423420 423430 423440 423450 423490 423510 423610 423620 423690 423710 423720 423730 423740 423810 423820 423830 423840 423850 423860 423930 423940 Aircraft Manufacturing Railroad Rolling Stock Manufacturing Ship Building and Repairing Motorcycle, Bicycle and Parts Manufacturing All Other Transportation Equipment Manufacturing Furniture and Related Product Manufacturing Institutional Furniture Manufacturing Wood Office Furniture Manufacturing Office Furniture (Except Wood) Manufacturing Showcase, Partition, Shelving, and Locker Manufacturing Blind and Shade Manufacturing Miscellaneous Manufacturing Laboratory Apparatus and Furniture Manufacturing Sign Manufacturing Gasket, Packing, and Sealing Device Manufacturing Wholesale Trade Merchant Wholesalers, Durable Goods Automobile and Other Motor Vehicle Merchant Wholesalers Motor Vehicle Supplies and New Parts Merchant Wholeslrs Tire and Tube Merchant Wholesalers MotorVehicle Parts (Used) MerchantWholesalers Furniture Merchant Wholesalers Lumber, Plywood, Millwork, and Wood Panel Merchant Wholesalers Brick, Stone, and Related Construction Material Merchant Wholesalers Roofing, Siding, and Insulation Material Merchant Wholeslrs Other Construction Material Merchant Wholesalers Photographic Equipment and Supplies Merchant Wholesalers Office Equipment Merchant Wholesalers Computer and Computer Peripheral Equipment and Software Merchant Wholesalers Other Commercial Equipment MerchantV'Jholesalers Medical, Dental, and Hospital Equipment and Supplies Merchant Wholesalers Other Professional Equipment and Supplies Merchant Wholesalers Metal Service Centers and Other Metal Merchant Wholeslrs Electrical Apparatus and Equipment, Wiring Supplies, and Related Equipment Merchant Wholesalers Electrical and Electronic Appliance, Television, and Radio Set Merchant Wholesalers Other Electronic Parts and Equipment Merchant Wholesalers Hardware Merchant Wholesalers Plumbing and Heating Equipment and Supplies (Hydronics) Merchant Wholesalers Warm Air Heating and Air-Conditioning Equipment and Supplies Merchant Wholesalers Refrigeration Equipment and Supplies Merchant Wholesalers Construction and Mining (except Oil Well) Machinery and Equipment Merchant Wholesalers Farm and Garden Machinery and Equipment Merchant Wholesalers Industrial Machinery and Equipment Merchant Wholesalers Industrial Supplies Merchant Wholesalers Service Establishment Equipment and Supplies Merchant Wholesalers Transportation Equipment and Supplies (except Motor Vehicle) Merchant Wholesalers Recyclable Material Merchant Wholesalers Other Miscellaneous Durable Goods Merchant Wholesalers *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. Page 2 253 California Unified Certification Program List of NAICS Codes (partial) 424000 424110 424120 424130 424210 424310 424320 424330 424340 424410 424420 424490 424610 424690 424710 424720 424920 424930 424940 424950 424990 425000 425110 425120 440000 459999 441000 441110 441120 441221 441222 441229 441229 441310 441320 442000 442110 442210 442291 442299 443000 443111 443112 443120 443130 444000 444110 444120 444130 444190 444210 444220 445000 Merchant Wholesalers, Nondurable Goods Printing and Writing Paper Merchant Wholesalers Stationary and Office Supplies Merchant Wholesalers Industrial and Personal Service Paper Merchant Wholesalers Drugs and Druggists' Sundries Merchant Wholesalers Piece Goods, Notions, and Other Dry Goods Merchant Wholesalers Men's and Boys' Clothing and Furnishings Merchant Wholesalers Women's, Children's, and Infants' Clothing and Accessories Merchant Wholesalers Footwear Merchant Wholesalers . . General Line Grocery Merchant Wholesalers Packaged Frozen Food Merchant Wholesalers Other Grocery and Related Products Merchant Wholesalers Plastics Materials and Basic Forms and Shapes Merchant Wholesalers Other Chemical and Allied Products Merchant Wholesalers Petroleum Bulk Stations and Terminals Petroleum and Petroleum Products Merchant Wholesalers (except Bulk Stations and Terminals) Book, Periodical, and Newspaper Merchant Wholesalers Flower, Nursery Stock, and Florists' Supplies Merchant Wholesalers Tobacco and Tobacco Product Merchant Wholesalers Paint, Varnish, and Supplies Merchant Wholesalers Other Miscellaneous Nondurable Goods Merchant Wholesalers Wholesale Electronic Markets and Agents and Brokers Business to Business Electronic Markets Wholesale Trade Agents and Brokers Retail Trade Motor Vehicle and Parts Dealers New Car Dealers Used Car Dealers Motorcycle Dealers Boat Dealers All Other Motor Vehicle Dealers Aircraft Dealers, Retail Automotive Parts and Accessories Stores Tire Dealers Furniture and Home Furnishings Stores Furniture Stores Floor Covering Stores Window Treatment Stores All Other Home Furnishings Stores Electronics and Appliance Stores f:lousehold Appliance Stores Radio, Television and Other Electronics Stores Computer and Software Stores Camera and Photographic Supplies Stores Building Material and Garden Equipment and Supplies Dlrs Home Centers Paint and Wallpaper Stores Hardware Stores Other Building Material Dealers Outdoor Power Equipment Stores Nursery and Garden Centers Food and Beverage Stores 446000 447000 448000 448110 448120 448130 448140 448150 448190 448210 448320 451000 451211 451212 452000 453000 453110 453210 453220 453310 454000 454111 454112 454113 454210 454311 454312 454319 454390 480000 499999 481000 481111 481112 481211 481212 481219 482000 483000 484000 484110 484121 484122 484210 484220 484230 485000 485111 485112 485113 485119 485210 485310 485320 485410 485510 Health and Personal Care Stores Gasoline Stations Clothing and Clothing Accessories Stores Men's Clothing Stores Women's Clothing Stores Children's and Infants' Clothing Store:> Family Clothing Stores Clothing Accessories Stores Other Clothing Stores Shoe Stores Luggage and Leather Goods Stores Sporting (]pod, Hobby, Book and Music Stores Book Stores News Dealers and Newsstands General Merchandise Store MJscellaneous Stori'J Retailers Florists Office Supplies and Stationery Stores Gift, Novelty and f)ouvenir Stores Used Merchandise Stores Nonstore Retailers Electronic Shopping Electronic Auctions Mail-Order Houses Vending M<Jchine Operators Heating Oil Dealers Liquefied Petroleum Ga.sJBottled Gas) D~~alers Other Fuel Dealers Other Direct Selling Establishments Transportation Air Transportation Scheduled Passenger Air Transportation Scheduled Freight Air Transportation Nonscheduled Chartered Passenger Air Transp()f!ation Nonscheduled Chartered Freight Air Transportation Other Nonscheduled Air Transportation Rail Transportation Water Transportation Truck Transportation General Freight Trucking, Local General Freight Trucking, Long-Distance, Truckload General Freight Trucking, Long-Distance, Less Than Truckload Used Household and Office Goods Moving Specialized Freigh(iexcept Used Goods)Trucking,Local Specialized Freight (except Used Goods) Trucking, Long- Distance Transit and Ground Passenger Tran.sportation Mixed Mode Transit Systems Commuter Rail Syste111s Bus and Motor Vehicle Transit Systems Other Urban Transit Systems Interurban and Rural Bus Transportation Taxi Service Limousine Service School and Employee Bus Transportation Charter Bus Industry *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. Page 3 254 California Unified Certification Program List of NA/CS Codes (partial) 485991 485999 486000 487000 488000 488111 488119 488190 488210 488310 488320 488390 488410 488490 488510 488991 488999 491000 492000 492110 492210 493000 493110 493120 493190 510000 511000 511110 511120 511130 511140 511199 511210 512110 512191 512199 512210 512220 512240 512290 515000 515111 515112 515120 515210 516000 516110 517000 517110 517211 517212 517310 517410 517510 517910 518000 518111 Special Needs Transportation All Other Transit and Ground Passenger Transportation Pipeline Transportation Scenic and Sightseeing Transportation Support Activities for Transportation Air Traffic Control Other Airport Operations Other Support Activities for Air Transportation Support Activities for Rail Transportation Port and Harbor Operations Marine Cargo Handling Other Support Activities for Water Transportation Motor Vehicle Towing Other Support Activities for Road Transportation Freight Transportation Arrangement Packing and Crating All Other Support Activities for Transportation Postal Service Couriers and Messengers Couriers Local Messengers and Local DeliVf:!l)' Warehousing a[Jd Storage General Warehousing and Storage Refrigerated Warehousing and Storage Other Warehousing and Storage Information Publishing Industries (except Internet) Newspaper Publishers Periodical Publishers Book Publishers Directory and Mailing List Publishers All Other Publishers Software Publishers Motion Picture and Video Production Teleproduction and Other Postproduction Services Other Motion Picture and Video Industries Record Production Integrated Record Production/Distribution Sound Recording Studios Other Sound Recording Industries Broadcasting (except Internet) Radio Networks* Radio Stations* Television Broadcasting* Cable and Other Subscription Programming Internet Publishing and Broadcasting Internet Publishing and Broadcasting Telecommunications Wired Telecommunications Carriers Paging Cellular and Other Wireless Telecommunications Telecommunications Resellers Satellite Telecommunications Cable and Other Program Distribution Other Telecommunications Internet Service Providers, Web Search Portals, and Data Processing Services Internet Service Providers 518112 518210 519000 519110 519120 519190 520000 522000 522220 522291 522292 522298 522310 522320 522390 523000 523110 523120 523130 523140 523910 523920 523930 523991 523999 524000 524113 524114 524126 524127 524128 524130 524210 524291 524292 524298 525000 525110 525120 525190 525910 525920 525930 525990 530000 531000 531120 531130 531190 531210 531312 531320 531390 532000 532111 532112 Web Search Portals Data Processing, Hosting, and Related Services Other Information Services News Syndicates Libraries and Archives All Other Information Services Finance and Insurance* Credit Intermediation and Related Activities Sales Financing Consumer Lending Real Estate Credit All Other Non-Depository Credit Intermediation Mortgage and Nonmortgage Loan Brokers Financial Transactions Processing, Reserve, and Clearing House Activities Other Activities Related to Credit Intermediation Financial Investments and Related Activities Investment Banking and Securities.Dealing Securities Brokerage Commodity Contracts Dealing Commodity Contracts Brokerage Miscellaneous Intermediation Portfolio Management Investment Advice Trust, Fiduciary and Custody Activities Miscellaneous Financial Investment Activities Insurance Carriers and Related Activities Direct Life Insurance Carriers Direct Health and Medical Insurance Carriers Direct Property and Casualty Insurance Carriers Direct Title Insurance Carriers . . ... OtherDirect Insurance (except Life, Health and Medical) Carriers Reinsurance Carriers Insurance Agencies and Brokerages Claims Adjusting Third Party Administration of Insurance and Pension Funds All Other Insurance Related Activities Funds, Trusts and Other Financial Vehicles Pension Funds Health and Welfare Funds Other Insurance Funds Open-End Investment Funds Trusts, Estates, and Agency Accounts Real Estate Investment Trusts Other Financial Vehicles Real Estate and Rental and Leasing Rea/Estate Lessors of Nonresidential Buildings (except Miniwarehouses) Lessors of Miniwarehouses and Self Storage Units Lessors of Other Real Estate Property Offices of Real Estate Agents and Brokers* Nonresidential Property Managers Offices of Real Estate Appraisers* Other Activities Related to Real Estate Rental and Leasing Services Passenger Car Rental Passenger Car Leasing *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. Page4 255 California Unified Certification Program List of NA/CS Codes (partial) 532120 532210 532299 532310 532411 532412 532420 532490 533110 540000 541110 541191 541199 541211 541213 541214 541219 541310 541320 541330 541340 541340 541350 541360 541370 541380 541410 541420 541430 541490 541511 541512 541513 541519 541611 541612 541613 541614 541618 541620 541690 541710 541720 541810 541820 541830 . 541840 541850 541860 541870 Truck, Utility Trailer, and RV (Recreational Vehicle) Rental and Leasing Consumer Electronics and Appliances Rental All Other Consumer Goods Rental General Rental Centers Commercial Air, Rail, and Water Transportation Equipment Rental and Leasing Construction, Mining and Forestry Machinery and Equipment Rental and Leasing Office Machinery and Equipment Rental and Leasing Other Commercial and Industrial Machinery and Equipment Rental and Leasing Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) Professional, Scientific and Technical Services Offices of Lawyers* Title Abstract and Settlement Offices All Oth.eJ~Legal Services Offices of Certified Public Accountants* Tax Preparation Services* Payroll Services Other Accounting Services Architectural Services* Landscape Architectural Services* Engineering Ser~~ices* Drafting ServiCE!S Map Drafting Building Inspection Services GeophysicaiSurveying and Mapping Services* Surveying and Mapping (except Geophysical) Services* Testif!g Laboratories Interior Design Services Industrial Design Services Graphic Design Services Other Specialized [)esign Services Custom Computer Programming Services Computer Systems Design Services Computer Facilities Management Services Other Computer Related Services Administrative Management and General Management Consulting Services Human Resources and Executive Search Consulting Services Marketing Consulting Services Process, Physical Distribution and Logistics Consulting Services Other Management Consulting Services Environmental Consulting Services Other Scientific and Technical Consulting Services Research and Development in the Physical, Engineering, and Life Sciences Research and Development in the Social Sciences and Humanities Advertising Agencies Public Relations Agencies Media.Buying Agencies Media Representatives Display Advertising Direct Mail Advertising Adyertising Material Distribution Services 541890 541910 541922 541930 541990 550000 551111 551112 560000 561000 561110 561210 561210 561310 561320 561330 561410 561421 561422 561431 561439 561440 561450 561491 561492 561499 561510 561520 561599 561611 561612 561613 561621 561622 561710 561720 561730 561740 561790 561910 561920 561990 562000 562111 562112 562119 562211 562219 562910 562910 562920 562998 610000 611410 611420 611430 611512 Other Services Related to Advertising Marketing Research and Public Opinion Polling Commercial Photography Translation and Interpretation Services All Other Professional, Scientific and Technical Services Management of Companies and Enterprises Offices of Bank Holding Companies Offices of Other Holding Companies Administrative and Support Services Administrative. and Support Services Office Administrative Services F aGilities Support Services Base Maintenance Employment Placement Agencies Temporary He!lpServices Employee. Leasing Services Document Preparation Services Telephone Answering Services Telemarketing Bureaus Private Mail Centers Other f3usiness Service Centers (including CopyShops) Collection Agencies Credit Bureaus Repossession Services Court Reporting and Stenotype Services All Other Business Support Services Travel Agencies Tour Operators All Other Travel Arrangement and Reservation Services Investigation Services. Security Guards and Patrol Services* Armored Car Services Security Systems Services.(except Locksllliths) Locksmiths Exterminating and Pest Contr()l Services* Janitorial Services Landscaping Services* Carpet andUpholstery Cleaning Services Other Services to Buildings and Dwellings Packaging and Labeling Services ConventionandTrade Show Organizers All Other Support Services Waste Management and Remediation Services Solid Waste Collection Hazardous Waste Collection* Other Waste Collection Hazardous Waste Treatment and Disposal* Other Nonhazardous Waste Treatment and Disposal Remediation Services Environmental Remediation Services. Materials Recovery Facilities All Other Miscellaneous Waste Management Services Educational Services Business and Secretarial Schools Computer Training Professional and Management Developme11t Training Flight Training *Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. Page 5 256 California Unified Certification Program List of NAICS Codes (partial) 611513 611519 611630 611691 611692 611699 611710 620000 621000 621110 621210 621310 621320 621330 621340 621391 621399 621410 621420 621492 621493 621498 621511 621512 621610 621910 621999 622000 623000 624000 624110 624120 624190 624210 624221 624229 624230 624310 624410 710000 711000 712000 713000 720000 721000 722000 722110 722211 722212 722213 722310 722320 722330 722410 Apprenticeship Training Other Technical and Trade Schools Language Schools Exam Preparation and Tutoring Automobile Driving Schools All Other Miscellaneous Schools and Instruction Educational Support Services Health Care and Social Assistance* Ambulatory Health Care Services Offices of Physicians Offices of Dentists Offices of Chiropractors Offices of Optometrists Offices of Mental Health Practitioners (except Physicians) Offices of Physical, Occupational and Speech Therapists and Audiologists Offices of Podiatrists Offices of All Other Miscellaneous Health Practitioners Family Planning Centers Outpatient Mental Health and Substance Abuse Centers Kidney Dialysis Centers Freestanding Ambulatory Surgical and Emergency Centers All Other Outpatient Care Centers Medical Laboratories Diagnostic Imaging Centers Home Health Care Services Ambulance Services All Other Miscellaneous Ambulatory Health Care Services- Hospitals Nursing and Residential Care Facilities Social Assistance Child and Youth Services Services for the Elderly and Persons with Disabilities Other Individual and Family Services Community Food Services Temporary Shelters Other Community Housing Services Emergency and Other Relief Services Vocational Rehabilitation Services Child Day Care Services Arts, Entertainment and Recreation Performing Arts, Spectator Sports and Related Industries Museums, Historical Sites and Similar Institutions Amusement, Gambling and Recreation Industries Accommodation and Food Services Accommodation Food Services and Drinking Places Full-Service Restaurants Limited-Service Restaurants Cafeterias Snack and Nonalcoholic Beverage Bars Food Service Contractors Caterers Mobile Food Services Drinking Places (Alcoholic Beverages) 810000 811000 811111 811112 811113 811118 811121 811122 811191 811192 811198 811211 811212 811213 811219 811310 811411 811412 811420 811430 812000 812320 812331 812332 812921 812922 812930 813000 Other Services Repair and Maintenance General Automotive Repair Automotive Exhaust System Repair Automotive Transmission Repair Other Automotive Mechanical and Electrical Repair and Maintenance Automotive Body, Paint and Interior Repairand Maintenance Automotive Glass Replacement Shops Automotive Oil Change and Lubrication Shops Car Washes All Other Automotive Repair and Maintenance Consumer Electronics Repair and Maintenance Computer and Office Machine Repair and Maintenance Communication Equipment Repair and Maintenanc;e Other Electronic and Precision Equipment Repair and Maintenance Commercial and Industrial Machinery and Equipment (except Automoli\/fi_andEiectronic)Repair and Maintenan(;El HoJl1e_a~d (3ard_Eln E:quipment ~pair and. Maintenance Applianc:El. Rep(lir a11c1 ~(lilllena nee Reupholstery ancl Furniture Repair Footwear and Leather Goods Repair Pfirsonal.<Jnd Laundry Services Drycleaning and Laundry Services (except Coin-Operated) Linen Supply Industrial Launderers Photo Finishing Laboratories (except One-Hour) One-Hour Photo Finishing Parking Lots and Garages ... Religious, Grantmaking, Civic, Professional and Similar Organizations • Note: evidence of State or other licensing is required in order to be classified in this industry, if applicable. Page 6 257 I CALIFORNIA UNIFIED CERTIFICATION PROGRAM (CUCP) Roster of Certifying Agencies Note: If you received this information on hard copy, the California Unified Certification Program Application Package is available on the website at http://www.dot.ca.gov/hq/bep/business forms.htm. If the firm has its principal place of business in another state and is currently certified in that state, please contact the California Department of Transportation in the Northern Cluster. Southern Cluster I Area Counties Riverside, Imperial Riverside Imperial & San Diego San Diego (RIS) Los Angeles Kern Los Angeles Area Orange San Bernardino San Luis Obispo Santa Barbara Ventura Note: Lzst of agenczes subject to change Certifying Agencies SUBMIT APPLICATION PACKAGE TO: y CITY OF LOS ANGELES* y LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY OR y CALIFORNIA DEPARTMENT OF TRANSPORTATION SEE CONTACT INFORMATION BELOW CITY OF LOS ANGELES* Bureau of Contract Admin. Centralized Certification Section 1149 S. Broadway, Ste 300 Los Angeles, CA 90015 Phone: (213) 847-2684 Fax: (213) 847-2777 httJ!://bca.Iacity.org *Only firms actively pursuing contracting opportunities with City of Los Angeles or firms located within City of Los Angeles may apply Roster Page 2 of2 258 LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY (METRO) Diversity and Economic Opportunity Department One Gateway Plaza, MS 99-8-4 Los Angeles, CA 90012 Phone: (213) 922-2600 Fax: (213) 922-7660 www.metro.net Updated 6/2011 Roster of Cert~fyinf( Af(encies I Northern Cluster I Area Counties Certifying Agencies Bay Areal Alameda Central Valley Amador Calaveras Contra Costa Fresno Kings Madera Marin Mariposa Merced Monterey Napa San Benito San Francisco San Joaquin San Mateo Santa Clara Santa Cruz Solano Sonoma Stanislaus Tulare Tuolumne Northern Alpine Nevada California Butte Placer Colusa Plumas Del Norte Sacramento ElDorado Shasta Glenn Sierra Humboldt Siskiyou In yo Sutter Lake Tehama Lassen Trinity Mendocino Yolo Modoc Yuba Mono * Lzst of agenczes subject to change S.F. BAY AREA RAPID TRANSIT DISTRICT (BART) Office of Civil Rights 300 Lakeside Drive 18'h Floor Oakland, CA 94612 Phone: (510) 464-6100 Fax: (510) 464-7587 www.bart.gov CITY OF FRESNO DBE Program 2101 G Street, Building A Fresno, CA 93706 Phone: (559) 621-1132 Fax: (559) 488-1069 www .fresno.gov SANTA CLARA VALLEY TRANSPORTATION AUTHORITY (VTA) Office of Small & Disadvantaged Businesses 3331 North First Street, Bldg. A San Jose, CA 95134-1906 Phone: (408) 321-5962 Fax: (408) 955-9729 www.vta.org CENTRAL CONTRA COSTA TRANSIT AUTHORITY (CCCTA) Office of Civil Rights 2477 Arnold Industrial Way Concord, CA 94520-5327 Phone: (925) 676-1976 Fax: (925) 686-2630 www.cccta.org CALIFORNIA DEPARTMENT OF TRANSPORTATION (CAL TRANS) Office of Business and Economic Opportunity MS 79 1823 -14'h Street Sacramento, CA 95814 Phone: (916) 324-1700 or (866) 810-6346 Fax: (916) 324-1862 www.dot.ca.gov Roster Page 2 of2 259 L------------------------------------------------------------------ SAN FRANCISCO MUNICIPAL TRANSPORTATION AGENCY (SFMTA) Contract Compliance Office I S. Van Ness Avenue, 6th Floor San Francisco, CA 94103 Phone: (415) 701-4436 Fax: (415) 701-4347 www.sfmuni.com SAN MATEO COUNTY TRANSIT DISTRICT ( SAM TRANS)/ PENINSULA CORRIDOR JOINT POWERS BOARD (JPB) DBE Office 1250 San Carlos Avenue San Carlos, CA 94070 Phone: (650) 508-7939 Fax: (650) 508-7738 www.samtrans.com YOLO COUNTY TRANSPORTATION DISTRICT (YOLOBUS) DBE Programs 350 Industrial Way Woodland, CA 95776 Phone: (530) 402-2817 Fax: (530) 661-1732 www.rolobus.com Updated 6/2011 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program Exhibit E Uniform Report of DBE Awards or Commitments and Payments 260 Number Hispanic American Total to D8Es (dollars) Native American 261 ('lumber) Subcont. Asian American (dollars) Asian· Pacific American Ht Si{JnaJure of Au!hori:z;ed Conscious {number) Non· Minority Women Neutral [dollars) Neutral I number) this reporting period only) =~ dollars to DBEs Year-End TOTALS Percentage of Total DBE Participation I I lNSTRtJCTIOi"S FOR COMPLETING THE UNIFORM REPORT 01<' Dlll<: A WAROS OR COMMITMENTS ANI) PAYMENTS l. Indicate the IXIT Operating Administration (OA) tbat pnwides vour 1·\,deml !1nancial assistance. If assistance comes from more than on~ OA, use sep3ratc reporting forms for cad1 OA. lf you are an FTA recipient. indicate y<.>ur Vcnd<.>r Number in the space providcd. 2. If you arc an FAA recipient, indicate the relevant All' Numbers covered by this report. lf more than six, attach a separate sheet 3. Specify the Federal tlscal year (i.e., October I September 30) in which the covered reporting pedt1d falls, 4, State tbc date of submission of this report. 5. Check the appropriate box th;tt indicates the reporting period that the data provided in this report covers. If this repor1 is due June l. dati should cover October I .. March 3 L lf this rep<>rt is due December L data sl10uld cover April ! ~· Scptembt'T 30. lf this report is due to the FAA, data should cover the entite year. 6. Name of the recipient. 7. State your annual DBE goal(s) established for the Federal fiscal year of this report to be submitted to and approved by the relevant OA Your Ovcmll Goal is to be reported as well as the breakdown for specific Race Conscious and Race Neutral Goals (bnth of which include gendcr-cnnscious/neutral goals). The Race Conscious Goa I portion sh<>u!d be based on programs that focus on and provide bcnc!1ts only for DBEs. The usc of contract goals is a primary e':amplc of a Race Conscious mel\sure. The Race Neutral Goal portion should include programs that. while benefiting DB~~. arc not solely focused on DBE fim1s. For example, a snwlf business outreach program. technical assistance, and prompt p:lyment clauses can a~sist a wide variety of bu~incsscs in addition to helping DBE !lrms. S-9. Tbc amounts in items Rt,A)-9(1) should include ali types of prime contracts awarded and all types of subcontracts awarded or eommiuctl. inclnding: professional or consnltnnt servic~s. construction, purcha~e of materials or supplies, lease or purchase of equipment and any other types of services. All dollar amounts are to re!1ect only the Federal share of ~uch contracts, and shmtld be rounded to the nearest dollar. 8(A). Provide the tQ!al dollar <1monnt for all prime contracts assisted with [lOT funds that were awarded during this reporting period. R(B). Provide the toral number <:>f all prime cotlfracts asslSI<~d with DOT funds that were awarded during this reporting period,. S{C). From the total dollar amount awarded in ilcm &(At provi<.lc the dollar amoun! awarded tv certified DBEs dming this reporting period. S(lJ). From the t01al number of prime contracts awarded in iwm 8(8), specify the number awarded to certified DBEs during this reporting period. 8(E), From the total dollars awarded in 8(C). provide the QQll.ru: amount awarttcd to DBEs though the ~tse of Race Con~eious methods. See the definition of Race Conscious Goal in item 7 and tllc explanation of project types in item 8 to include in your calculation. 8(F} From lhc total number of prime contracts award<:d in 8(D), specify the !.!.l!lll!l.!:J awarded to DBEs through Race Conscious methods. 8(Gl From the total dollar amount award~'d in item 8(C), provide the gol!ar amount awarded to certified DBEs through lhe US>~ of Race Neutral methods. See the definition of Race Neutral Goal in item 7 and the explanation of project types in item 8 to include. 8(H)_ From the total number of prime contracts awarded in 8(0), sp~~cify the ~awarded to DBEs through Race Neutral methods. S(l). Of all prime contracts awarded this reponing period, calculare the percentage going to DBEs. Divide the dollar amount in item 1:\(CI by the dollar amount in item 8(A) to derive this perc.cutagc. Round percemage to the nearest tenth, 9(A)·9{l). Items 9(A)-9(I) are dcrivt.-d in the same way as items 8(A)· M(l), except that these calculations should be based on subcontracts rather than prime contracts. Unlike prime contracts, which may only be awarded, subcontracts may be either awarded or committed. IO(A)-ll(J). For all DUEs awarded prime eontracts and awarded or committed subcontracl'> as indkated in 8(C)-(D) and 9(C)-(D), break the data dOVt'II further by total dollar amount as well as the number of all contracts going to e?ch ethnic group as well as to non- minority women. The "Other'" category includes those DBEs who are not members of the presumptively disadvantaged groups already listed, but who are determined eligible for the DBE program on an individual basis (e.g. a Caucasian male with a disability). The TOTALS value in lO{H) should equal the sum of 8(G) plus 9(C), and similarly, the TOTALS value in ll(H) should equal the sum of 8(D) plus 9(D). Column l should only be filled out if this report is due on December!, as indicated in item 5. The values for this column an:-derived by adding the. values reported in column H in your first report with the values reported in this sccoml report l2(A). Provide the total number of prime colltmcts completed during this reporting period that had Race Consconus goals. Race C<:>nsciou~ J;Qntn•cts are those with <.:onttaet goa!:; or another Race Conscious measure. l2{H). Provide the total dollar value of ptime contracts completed this reporting period that had Race Conscious goats. 12(C). Provide the total dollar amount of DBE participation on all Race Conscious prime contracts completed this reporting period that was necessary to meet the eontmct goals on them This applies <>nly to Race Conscious prime contracts. 12(0). Provide the acmal wtal DBE participation in dollars M the race conscious prime wntrnct$ completed this reporting pctiod. 12{L'). Of all the prime comraets completed this reportiltg period, calculate the percentage of DBE participation. Divide the actual total dollar amount in 12(0) by the total dollar value provided in l2{B) to derive this percentage. Round to the nearest tenth. l3(A )-13(E), Items l3(A)-B(E) are derived m the same manner as items 12(A)-12(E), except these figures should be based on Race Ncntrnl prime contacts (i.e, those with no race conscious measures). l4(A)-!4{E). Calculate the tntab for each column by adding the race conscious and neutral figures provided in each row above. 15. Name of the Authorized Representative preparing this form. 16. Signature of the Authorized Representative. 17. Phone number vf the Alllhorizcd R!!prescntativc. 18. Fax number of the Authorized Representative . .. Submit your completed rej><>rt «> yuur Regh>mll or Oh·islon Office. 262 Riverside County Transportation Commission Disadvantaged Business Enterprise (DBE) Program Exhibit F Monthly Subcontractors Paid Report 263 Summary of Disadvantaged Business Enterprise (DBE) -Subcontractors Paid Monthly Report Reporting Period (MonthNear) Report Number Date Prepared ) __ . l.~J!!:!!m );!~~~/), ,', m• "') c.. ,. H ·-.l~ ,. )) " 1) Project Name ; 2) Project Location ; 3) Contract Number 4) Original Contract 5) Contract Award Date Award Amount 6) Current Contract . 7) RCTC Payment to ' 8) Total Amount Paid to Value Prime This Month Prime to Date 9) Date of Last Progress 1 0) Percent of Project . 11) DBE Goal I Payment Received from Complete I Percentage RCTC (committed) . -" n 12) Prime Contractor 13) Contact Person 14) Street Address 15) City/State/Zip 16) Area Code/Phone No. I 17) Email Address ' --Dollars Dollar Original Dollar+/-18) SUBCONTRACTOR/SUPPLIER Paid This Amount Schedule Activity ID Type of Work Dollar resulting from Paid to (Construction only) Performed Amount Change Order Month Date Committed Activity Subcontractor/Supplier #1 I l l ! l ! ! Name Address Area Code/Phone Contact Person Subcontractor/Supplier #2 ! ! ! ! ! ! Name Address Area Code/Phone Contact Person Subcontractor/Supplier #3 ! ! ! ! 1 1 1 Name Address Area Code/Phone Contact Person 264 Summary of Disadvantaged Business Enterprise (DBE) -Subcontractors Paid Monthly Report Reporting Period (MonthNear) Report Number Date Prepared Subcontractor/Supplier #4 t t 1 ! ! ! I Name ! Address ' Area Code/Phone Contact Person Subcontractor/Supplier #5 t ! ! ! ! ! Name Address Area Code/Phone Contact Person Subcontractor/Supplier #6 l l l l l l l Name Address Area Code/Phone Contact Person INSTRUCTIONS The Prime shall make prompt payment of all monies due and owed to DBE and non-DBE firms within 10 business days upon receipt of payment from Riverside County Transportation Commission (RCTC) as per Contract Agreement. Payment of retention shall be made to all DBE and non-DBE subcontractors within 10 days after satisfactory completion of the subcontracted work. This form is due to RCTC by the 15th of each month and should reflect all payments made to subs through the last day of the previous month. The Prime must report monthly, even if the sub(s) did not perform any work for the previous month. Please forward signed original documents by email and/or fax. ----Completed By: ------------------------------Name Signature Date 265 Summary of Disadvantaged Business Enterprise (DBE) -Subcontractors Paid Monthly Report Reporting Period (Month/Year) Report Number Date Prepared Pavment Hist DBE Sub/Supplier Sub/Supplier Sub/Supplier Sub/Supplier Sub/Supplier Sub/Supplier DBE Sub/Supplier Subcontractors/Suppliers #1 #2 #3 #4 #5 #6 Total Invoice Invoice Date Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Numbers and Date Paid i I GRAND TOTAL (Paid to Date) 266 Summary of Disadvantaged Business Enterprise (DBE) -Subcontractors Paid Monthly Report Reporting Period (Month/Year) Report Number Date Prepared Instructions -Summary of Monthly DBE Payments Information SUCCESSFUL BIDDER: This form requires specific information regarding the disadvantaged business enterprise subcontractors paid on this construction contract. The form must be completed for all DBEs. 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, 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. This 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 151h day of each month. 267 RESOLUTION NO. 12-004 RESOLUTION OF THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION ADOPTING ITS DISADVANTAGED BUSINESS ENTERPRISE PROGRAM ATTACHMENT 2 AND OVERALL DISADVANTAGED BUSINESS ENTERPRISE PROJECT GOAL (49 CFR PART 26) AS IT APPLIES TO FUNDING RECEIVED DIRECTLY FROM THE FEDERAL TRANSIT ADMINISTRATION WHEREAS, the Riverside County Transportation Commission (Commission) adopted a Disadvantaged Business Enterprise (DBE) program in 1999; WHEREAS, the DBE Program adopted in 1999 was for Federal Highway Administration (FHWA) funds received by the Commission as a sub-recipient through the California Department of Transportation (Caltrans); WHEREAS, the Ninth Circuit Court of Appeals, in a decision regarding the Washington State Department of Transportation, determined that sufficient evidence must exist to support the use of race-conscious measures on federal-aid contracts; WHEREAS, the Commission is still required, pursuant to 49 CFR Part 26, to adopt a DBE goal and implement its DBE program as applies to federal funding received by the Commission directly from the Federal Transit Administration (FTA); WHEREAS, the methodology to determine the agency's DBE goal shall be in accordance with 49 CFR Part 26; WHEREAS, the Commission is a direct recipient of FTA funds; WHEREAS, the Commission does not currently have sufficient evidence of discrimination or its effects which would support the adoption or implementation of a race-conscious DBE goal; 268 WHEREAS, in light of the Ninth Circuit ruling and the U.S. DOT directive, and in accordance with 49 CFR Part 26, the Commission has utilized all race neutral methodology in calculating the Overall DBE goal for the Perris Valley Line Project. NOW, THEREFORE, the Riverside County Transportation Commission hereby resolves as follows: SECTION 1. The Riverside County Transportation Commission submits its Overall DBE Project goal for the Perris Valley Line Project. SECTION 2. The Overall DBE goal for the Perris Valley Line Project shall be 3.8%. SECTION 3. The Commission shall implement a race-neutral DBE program, and shall take affirmative steps to utilize race-neutral means of meeting its overall goal. ADOPTED this 2nd day of February, 2012. John J. Benoit, Chair Riverside County Transportation Commission ATTEST: Jennifer Harmon, Clerk of the Board Riverside County Transportation Commission 269 AGENDA ITEM 7E RIVERSIDE COUNTY TRANSPORTATION COMMISSION D ATE: February 2, 2012 TO Riverside County Transportation Commission FR OM: Shirley Medina, Programming and Planning Manager TH ROUGH: Anne Mayer, Executive Director su BJECT: Riverside County 2013 Federal Transportation Improvement Program Financial Resolution s TAFF RECOMMENDATION: Th is item is for the Commission to: 1 ) 2) Adopt Resolution No. 12-006, ~~Resolution Certifying Riverside County has Resources to Fund Projects in Federal Fiscal Years 2012/13 Through 201 7/18 Transportation Improvement Program and Affirming Commitment to Implement All Projects in the Program"; and Forward to the Southern California Association of Governments (SCAG) for inclusion in the 2013 Federal Transportation Improvement Program (FTIP). BA CKGROUND INFORMATION: Th e Safe Accountable Flexible Efficient Transportation Equity Act: A Legacy for Users AFETEA-LU) requires that SCAG adopt a FTIP for the metropolitan planning area and at this document be included in the Federal Statewide Transportation Improvement ogram (FSTIP) before receiving federal funds for transportation projects. The FSTIP ust be updated by the metropolitan planning organization every two years. The FSTIP plements projects identified in the first six years (FFY 2012/13 -2017 /18) of the (S th Pr m im lo ng-range 2012 Regional Transportation Plan. Fe air deral regulations require SCAG to determine that the FTIP: 1) conforms to the adopted plans in the region; 2) is financially constrained; and 3) affirms project commitments. Th e attached resolution must be included in the 2013 FTIP update to certify that the verside County portion of the FTIP is financially constrained and to affirm the mmitment to implement the projects. Financial constraint and project commitment is fined as follows: Ri co de 1 . Ag Financial Constraint: The Commission must certify that the Riverside County Transportation Improvement Program is financially constrained (projects are not programmed in excess of fund levels) and that the funding may be reasonably expected to carry out the program. enda Item 7E 270 2. Project Commitment: The Commission must affirm that its highest priorities for funding are the projects in the 2013 FTIP. The affirmation is specifically targeted to enforceable Transportation Control Measures (TCM). TCM are strategies/projects employed to reduce emissions from on-road mobile sources. Over the past three months, staff reviewed projects submitted by Caltrans, local agencies, and transit operators in Riverside County. This includes all regionally significant projects, projects included in the Short Range Transit Plans, Measure A Highway projects, as well as projects funded with federal, State Transportation Improvement Program, Proposition 1 B, Safe Routes to Schools, Highway Bridge Program, and Transportation Uniform Mitigation Fee funds. Projects that completed construction were identified and removed from the FTIP, while other projects were added, deleted, or modified at the request of project sponsors. All project programming was reviewed to ensure that each project has clearly identified funding sources and schedule and was accomplished with the concurrence of each project sponsor. The end result is that Riverside County is submitting a list of 348 projects that are consistent with the financial constraint and TCM implementation requirements of SAFETEA-LU. The 2013 FTIP Update is scheduled for approval by the SCAG Regional Council by October 2012. SCAG subsequently will pursue the necessary state and federal approvals for the 2013 FTIP. These approvals are anticipated to occur by early December 2012. Attachment: Resolution No. 12-006 Agenda Item 7E 271 RESOLUTION NO. 12-006 RESOLUTION OF THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION CERTIFYING THAT RIVERSIDE COUNTY HAS RESOURCES TO FUND PROJECTS IN FEDERAL FISCAL YEARS 2012/13 THROUGH 2017/18 TRANSPORTATION IMPROVEMENT PROGRAM AND AFFIRMING COMMITMENT TO IMPLEMENT ALL PROJECTS IN THE PROGRAM WHEREAS, Riverside County is located within the metropolitan planning boundaries of the Southern California Association of Governments (SCAG); and WHEREAS, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) requires SCAG to adopt a regional transportation improvement program for the metropolitan area; and WHEREAS, the SAFETEA-LU also requires that the regional transportation improvement program include a financial plan that demonstrates how the transportation improvement program can be implemented; and WHEREAS, the Riverside County Transportation Commission (RCTC) is the agency responsible for short-range capital and service planning and programming for the Riverside County area within SCAG; and WHEREAS, as the responsible agency for short-range transportation planning, the RCTC is responsible for developing the Riverside County Transportation Improvement Program (TIP), including all projects utilizing federal and state highway and transit funds; and WHEREAS, the RCTC must determine, on an annual basis, the total amount of funds that could be available for transportation projects within its boundaries; and WHEREAS, the RCTC has adopted the FFY 2012/13 through FFY 2017/18 Riverside County TIP with funding for FFY 2012/13 and FFY 2013/14 available and committed, and reasonably committed for FFY 2014/15 through FFY 2017/2018. NOW, THEREFORE, BE IT RESOLVED by the RCTC that it affirms its continuing commitment to the projects in the FFY 2012/13 through FFY 2017/18 Riverside County TIP; and BE IT FURTHER RESOLVED, that the FFY 2012/13 through FFY 2017/18 Riverside County TIP Financial Plan identifies the resources that are available and committed in the first two years and reasonably available to carry out the program in the last four years, and certifies that: 272 1 Projects in the FFY 201 2/13 through FFY 201 7/1 8 Riverside County TIP are consistent with the proposed 2012 State Transportation Improvement Program scheduled to be approved by the California Transportation Commission in March 2012; and 2 All of the projects in the Riverside County TIP have complete funding identified in the Program. 3 Riverside County has the funding capacity in its county Surface Transportation Program (STP} and Congestion Mitigation and Air Quality Program (CMAQ} allocation to fund all of the projects in the FFY 2012/13 through FFY 2017/18 Riverside County TIP, and 4 The local match for projects funded with federal STP and CMAQ program funds is identified in the TIP, 5 All the Federal Transit Administration funded projects are programmed within SAFETEA-LU Guaranteed Funding Levels. APPROVED AND ADOPTED this 2nd day of February, 2012. John J. Benoit, Chair Riverside County Transportation Commission ATTEST: Jennifer Harmon, Clerk of the Board Riverside County Transportation Commission 273 AGENDA ITEM 7F RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: TO: FROM: THROUGH: SUBJECT: February 2, 2012 ----------------------------------------~ Riverside County Transportation Commission Henry Nickel, Staff Analyst Sheldon Peterson, Rail Manager Anne Mayer, Executive Director Memorandum of Understanding with the SCRRA for Security Guard Services at the Downtown Riverside Station and Layover Facility STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Memorandum of Understanding (MOU) No. 12-25-043-00 with the Southern California Regional Rail Authority (SCRRA) for security guard services at the Downtown Riverside Station and layover facility; and 2) Authorize the Chair, pursuant to legal counsel review, to execute the MOU on behalf of the Commission. BACKGROUND INFORMATION: The Commission provides security guard services for its five Metrolink stations - Downtown Riverside, La Sierra, North Main Corona, Pedley, and West Corona. MOU No. 04-25-079-00 was established between the Commission and SCRRA in which SCRRA agreed to reimburse the Commission for providing security guard services at the Downtown Riverside Station and layover facility. That MOU has now expired and services have been extended under a short term purchase order. MOU No. 12-25-043-00 is intended to replace and supersede all prior MOUs related to reimbursement of costs for security guard services therein. Costs to be reimbursed include pepper-spray equipped security guards at the Downtown Riverside Station and layover facility 8 hours per day Monday through Friday and 24 hours per day on weekends. SCRRA will pay a pro rata share for the security supervisor not to exceed $4 per hour. According to the fee schedule in the MOU, the reimbursement for the base period is $394,000, and reimbursements for the option periods total $356,000. The total not to exceed reimbursements for the base period plus option periods is $750,000. Agenda Item 7F 274 DISCUSSION: To continue security guard services related to equipment layover needs at the Downtown Riverside Station, SCRRA requires a new MOU with the Commission because services have been extended under a short term purchase order and a prior MOU for the same services has expired. MOU No. 12-25-043-00 was approved by the SCRRA on January 13, 2012. The MOU provides for continued SCRRA reimbursement for security services rendered under the Commission's existing contract with Universal Protection Service GP, Inc. for a base period of performance from January 2012 to May 2014 with two one-year options. Either the Commission or SCRRA may terminate the agreement with 30 days written notice. Funding for security guard services reimbursements to the Commission is available in the SCRRA's FY2011-12 operating budget and will be requested in its future annual budgets. Staff recommends the Commission approve the MOU and authorize the Chair, pursuant to legal counsel review, to execute the MOU on behalf of the Commission. Financial Information In Fiscal Year Budget: I Yes I I FY2011/12 Amount: I $45,600 N/A Year: FY 2012/13 + $704,400 Source of Funds: I SCRRA Reimbursement (local) Budget Adjustment: I No N/A GL!Project Accounting No.: 254001-416-41608-0000 103-25-41203 Fiscal Procedures Approved: ~~ I Date: I 01/19/12 Attachment: Draft MOU No. 12-25-043-00 Agenda Item 7F 275 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Memorandum of Understanding No. MU125-12 MEMORANDUM OF UNDERSTANDING (MU125-12) BETWEEN THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND THE SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY FOR SECURITY GUARD SERVICES FOR LAYOVER FACILITY THIS MEMORANDUM OF UNDERSTANDING ("MOU") is made and entered into this _____ , 2011 ("Effective Date") by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("RCTC"), and the Southern California Regional Rail Authority ("SCRRA"), a joint powers authority. RECITALS: WHEREAS, the parties desire to establish a Memorandum of Understanding where SCRRA agrees to provide payment for security guard services related to equipment layover needs at the Riverside Downtown Metrolink Station and layover facility, the ("Station"). NOW THEREFORE, the RCTC and SCRRA agree as follows: ARTICLE 1. COMPLETE AGREEMENT This MOU, including any exhibits and documents incorporated herein and made applicable by reference, constitutes the complete and exclusive statement of the terms and conditions of the MOU between SCRRA and RCTC and supersedes all prior representations, understandings, and communications between the parties. The above-referenced Recitals are true and correct and are incorporated by reference herein. ARTICLE 2. TERM This MOU shall commence on January 1, 2012 and expire on May 1, 2014 except that it shall renew automatically from year to year for two (2) additional one (1) year terms unless one of the parties provides at least thirty (30) days written notice of non-renewal in advance of each additional May 1 expiration date. Notwithstanding the foregoing, this MOU may be terminated by either party upon thirty (30) days written notice. 17336.00600\7023845.2 Page 1 of7 276 Memorandum of Understanding No. MU125-12 1 2 ARTICLE 3. IT IS MUTUALLY UNDERSTOOD AND AGREED: 3 All parties agree to the following responsibilities regarding the MOU: 4 A SCRRA will pay to RCTC the hourly rate for the applicable year, as shown in Exhibit 5 "B", attached hereto and incorporated by reference, for all armed security guard services. In 6 addition, SCRRA will pay RCTC a prorated share of the security supervisor costs, not-to-exceed 7 $4.00 per hour. Payments will be made to RCTC within thirty (30) days of receipt and approval of 8 RCTC's invoice and supporting documentation by SCRRA. The amount paid by SCRRA to RCTC 9 will compensate RCTC for the services contained Exhibit "A", attached hereto and incorporated by 10 reference, which includes yearly cost of living adjustments. 11 B. RCTC shall submit quarterly invoices to SCRRA for reimbursement for services. 12 Invoices shall specify the period covered, and the agreed reimbursement rate specified in attached 13 Exhibits. Invoices shall be submitted to: 14 Accounts Payable 15 Southern California Regional Rail SCRRA 16 One Gateway Plaza, 121h Floor 17 Los Angeles, CA 90012 18 C. Complete and accurate invoices submitted on a quarterly basis shall be paid within thirty 19 (30) days of receipt of the invoice. 20 D. (a) RCTC agrees to indemnify and hold SCRRA, harmless from and against all 21 losses, damages, actions and expenses (including attorneys' fees) on account of bodily injury to or 22 death of any person or damage to or loss of use of property incident to or arising from any negligence 23 or willful misconduct of RCTC under the terms of this MOU. 24 {b) SCRRA agrees to indemnify and hold RCTC harmless from and against all 25 losses, damages, actions and expenses (including attorney's fees) on account of bodily injury to or 26 death of any person or damage to or loss of use of property incident to or arising from any negligence 17336.00600\7023845.2 Page 2 of? 277 Memorandum of Understanding No. MU125-12 1 or willful misconduct of SCRRA under the terms of this MOU. 2 E. Notices hereunder shall be sent to the parties as follows: 3 To SCRRA: To RCTC: 4 5 6 Southern California Regional Rail Authority One Gateway Plaza, 121h Floor Los Angeles, CA 90012 Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 7 Attention: Contracts Administration Attention: Contract Administration 8 F. This MOU constitutes the entire agreement between the parties with respect to the 9 subject matter of this MOU, including, without limitation, attached Exhibits, and may only be amended 1 0 by mutual written consent of the parties. 11 G. The persons executing this MOU on behalf of the parties hereto warrant that they are 12 duly authorized to execute this MOU on behalf of said parties and that, by so executing this MOU, the 13 parties hereto are formally bound to the provisions of this MOU. 14 H. The headings of all sections of this MOU are inserted solely for the convenience of 15 reference and are not part of and not intended to govern, limit, or aid in the construction or interpretation 16 of any terms or provision thereof. 17 I. If any term, provision, covenant, or condition of this MOU is held to be invalid, void or 18 otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder to this 19 MOU shall not be affected thereby, and each term, provision, covenant or condition of this MOU shall 20 be valid and enforceable to the fullest extent permitted by law. 21 J. This MOU may be executed and delivered in any number of counterparts, each of 22 which, when executed and delivered shall be deemed an original and all of which together shall 23 constitute the same agreement. Facsimile signatures will be permitted. 24 K. Neither this MOU, nor any of a party's rights, obligations, duties, or interests hereunder 25 may be assigned in whole or in part by either party without the prior written consent of the other party. 26 Any such attempt of assignment shall be deemed void and of no force and effect. Consent to one 17336.00600\7023845.2 Page 3 of 7 278 Memorandum of Understanding No. MU125-12 1 assignment shall not be deemed consent to any subsequent assignment, nor the waiver of any right to 2 consent to such subsequent assignment. 3 L. This MOU is by and between SCRRA and RCTC and is not intended and shall not be 4 construed so as to create the relationship of agent, servant, employee, partnership, joint venture or 5 association, as among SCRRA and RCTC. 6 M. Each party shall warrant to the other that, in the performance of this MOU, it shall 7 comply with all applicable federal, state and local laws, statutes and ordinances and lawful orders, rules 8 and regulations promulgated thereunder. 9 N. This MOU shall be binding on the successors and assigns of the parties hereto, and 1 0 shall not be assigned by any of the parties, without the written consent of the other parties. 11 0. Either party shall be excused from performing its obligations under this MOU during the 12 time and to the extent that it is prevented from performing by an unforeseeable cause beyond its 13 control, including but not limited to: any incidence of fire, flood, acts of God, commandeering of material, 14 products, plants or facilities by the federal, state or local government, national fuel shortage, or a 15 material act or omission by the other party, when satisfactory evidence of such cause is presented to 16 the other party, and provided further that such nonperformance is unforeseeable, beyond the control 17 and is not due to the fault or negligence of the party not performing. 18 19 I 20 I 21 I 22 I 23 I 24 25 26 17336.00600\7023845.2 [Signatures on following page] Page 4 of 7 279 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Memorandum of Understanding No. MU125-12 SIGNATURE PAGE TO MEMORANDUM OF UNDERSTANDING NO. MU125-12 IN WITNESS WHEREOF, the parties hereto have caused this MOU No. MU125-12 to be executed on the date first above written. SOUTHERN CALIFORNIA RAIL AUTHORITY REGIONAL RIVERSIDE COUNTY TRANSPORTATION COMMISSION By:----------- TITLE: APPROVED AS TO FORM: By:----------- Don 0. Del Rio General Counsel 17336.00600\7023845.2 By: _______________________ __ John J. Benoit, Chair APPROVED AS TO FORM By: ______________________ __ Best Best & Krieger LLP General Counsel to the Riverside County Transportation Commission Page 5 of? 280 Memorandum of Understanding No. MU125-12 EXHIBIT A Schedule of Services Riverside -Downtown Station 4066 Vine Street Riverside, CA 92506 Metrolink Equipment Layover Guards Bi-weekly Schedule Downtown Station Guard, 8 hours per day Monday-Friday Downtown Station Guard weekends, 24 hours per day Hours per week: 88 Total hours: 176 Mission Train Guard, 8 hours per day Monday-Friday Mission Train Guard weekends, 24 hours per day Hours per week: 88 Total Hours: 176 Contract Supervisor: Hours per week: 40 Total Hours: 80 17336.00600\7023845.2 Page 6 of? 281 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Memorandum of Understanding No. MU125-12 EXHIBIT 8 Compensation Schedule The compensation schedule shown below includes cost of living increases. Compensation for holidays for the year 2012 for the Downtown Armed Guard, Layover Armed Guard, and the Contract Supervisor is $228.00 per year for each position. This amount is subject to the cost of living increase, in an amount commensurate with the cost of living increase for the hourly rates as shown in the schedule below. Station 2012 2013 2014 2015 Tower Unarmed 14.59 14.95 15.32 15.70 Downtown Unarmed 14.59 14.95 15.32 15.70 La Sierra Unarmed 14.59 14.95 15.32 15.70 Pedley Unarmed 14.59 14.95 15.32 15.70 West Corona Unarmed 14.59 14.95 15.32 15.70 North Main Unarmed 14.59 14.95 15.32 15.70 CCTV Operator 15.94 16.33 16.74 17.14 Downtown Armed 17.28 17.71 18.16 18.61 Layover Armed 17.28 17.71 18.16 18.61 Asst. Supervisor 19.98 20.48 21.00 21.53 Contract Supervisor 24.68 25.30 25.93 26.58 Cost of Living Increases 2013 % 2014 % 2015 % 2016 % Overall 9.35% increase for guards and 9.43% increase for Supervisor over five years. 17336.00600\7023845.2 Page 7 of 7 282 2016 16.09 16.09 16.09 16.09 16.09 16.09 17.58 19.08 19.08 22.07 27.24 AGENDA ITEM 7G RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 2, 2012 -------+- TO: Riverside County Transportation Commission -------+- FROM: Robert J. Yates, Multimodal Services Director ------+- THROUGH: Anne Mayer, Executive Director SUBJECT: Rideshare Software Procurement STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 12-41-047-00 with Base Technologies, LLC (BaseTech) for the provision and hosting of new ridematching software in an amount not to exceed $216,000; and 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. BACKGROUND INFORMATION: The Commuter Assistance Program Rideshare and other commuter transportation demand management (TDM) programs are a vital tool for Riverside County and the entire Inland Empire region, as they significantly decrease the number of vehicles traveling on congested corridors and save thousands of pounds of pollutants from being emitted into the air each year. The Commission has valued rideshare as a viable element to help extract more efficient operation out of the county's transportation system by ncluding it in the 1989 Measure A. That vision has been acknowledged and i further recognized as successful with the passage and implementation of the 2009 Measure A, which again includes a TDM strategy as a funded element of the plan through 2039. I n FY 2010/11, the Commission's Commuter Assistance Program (CAP) had 18,376 participants, saved 3.8 million one-way trips from being taken, and prevented over 1 . 7 million pounds of emissions from polluting the air in Riverside and San Bernardino Counties. Agenda Item 7G 283 Ridematching Services The Commission's CAP was established in 1991 and is intended to implement the commuter services called out in Measure A. Advantage Rideshare, an incentive based rideshare program, was one of the first programs developed, marketed, and implemented by the Commission. Participants of the program receive cash incentives in the form of gift cards for ridesharing over a three-month term. The Club Ride program was developed in 1992 to provide incentives to those who continue to rideshare past the first three months. The common link to the provision of these services is the ability for users to generate ride matches with others wishing to either carpool or vanpool. Originally, the Commission relied on ridematching services provided through the Southern California Association of Governments (SCAG) and, ultimately in FY 2000/01, opted to leave the partnership with SCAG and undertake its own ridematching services. In FY 2001/02, the Commission entered into Agreement No. 02-41-052 with Multisystems, Inc. (Multisystems) for the provision, implementation, and maintenance of its RidePro software for ridematching. Subsequently, Multisystems was acquired by Trapeze Software, which became the recognized vendor of the RidePro software via formal amendment approved by the Commission in 2003. Since leaving the SCAG ridematching partnership, the Commission has led the way in implementing, operating, and maintaining the regional rideshare database to support coordinated and efficient ridematching services throughout the five county Southern California region. This entails processing commuter surveys, commuter and employer data retrieval, program reporting, Rideguide generation, network security, system maintenance, and operation. The Los Angeles County Metropolitan Transportation Authority, Orange County Transportation Authority, San Bernardino Associated Governments, and Ventura County Transportation Commission have contracted with the Commission for the administration of the regional ridematching database for the past eight years. Ridematching Software Currently, there are over 150,000 active users of the regional ridematching system. These users are responsible for entering and maintaining their own data for which ridematches are based. Primarily by inputting their major cross streets and work hours for both home and work locations, carpools can be formed by users matching themselves with each other. Over the past eight years, the Commission has continued to contract with Trapeze/Multisystems for annual maintenance to the RidePro software. This includes both updates and enhancements. Trapeze's current agreement with the Commission expires on June 30, 2012. Agenda Item 7G 284 In August 2009, an outside source attempted to break (hack) into the regional ridematch system. While personal information was not obtained nor disseminated, the Commission had to undertake extensive efforts in order to further secure the system from hacking attempts. Trapeze/Multisystems to this day has not accepted responsibility for the breech in security. This has made negotiations for a renewal of the annual maintenance contract very difficult, as the license agreement with the Trapeze/Multisystems does not allow the Commission to own the source code, manipulate the code to its satisfaction, or perform its own maintenance. DISCUSSION: Ridematching software, while prevalent on the market in many different forms, has some unique challenges when it comes to its use in Southern California. While ridematching is important, the ability for employers to gain compliance with and remain compliant to the South Coast Air Quality Management District's Rule 2202 is also important and is one of the primary services offered by the Commission to its employer partners. As such, the ability to calculate average vehicle ridership (AVR) reports for employers is a necessary requirement of any ridematching software to be utilized by the Commission. Additionally, the ability for the Commission to work directly with employers in managing their rideshare programs requires a high level of complexity and programming. Lastly, the Commission's nationally recognized and award winning program requires a high standard of functionality in order to not just maintain its standards but continue to lead the way in the delivery of innovative TOM programs to Riverside County residents. While attempting resolution with Trapeze/Multisystems in order to continue offering the Ridepro software and in light of the upcoming contract expiration date, staff began an investigation into alternatives to the use of the Ridepro software. Staff research into available alternatives spanned several months during the fall of 2011, and one of the tools utilized was a peer review process. By talking to other transportation agencies having similar ridematching and TOM programs in terms of functionality and size, staff was able to gain a better understanding of how peer agencies have been able to deal with solutions for the provision of a well performing TOM program and ridematching in particular. In discussions with the Bay Area Metropolitan Transportation Commission (MTC) and the New York MTC among others, a trend in software preference became apparent and a potential alternative to the use of Trapeze/Multisystems RidePro software was identified. Given the high regard that the two transportation agencies held for their preferred software vendor, BaseTech, and the job that it was doing, staff contacted BaseTech and initiated a scope of work discussion with it to implement its Komotor ridematching software for the Commission. Agenda Item 7G 285 Staff understands the sensitivity surrounding the use of sole source contracts, yet the unique programming needs required for a safe and secure ridematching system that can produce A VR reports leave few alternatives for ridematching software available on the open market. In fact, staff believes that the BaseTech Komotor software offers a significant number of benefits over the use of the existing RidePro software provided by Trapeze/Multisystems that could be realized by the Commission should it choose to enter into an agreement with BaseTech. While the cost of $134,000 to initially build and host the Komotor system may seem high, the cost structure outlined by BaseTech leverages previous work that BaseTech performed for many other agencies, primarily those software modules created for the Bay Area MTC. This has the function of actually lowering the initial cost to the Commission as the software does not have to be created from the ground up for use in California. In comparison, the cost for Trapeze/Multisystems to develop the RidePro software for the Commission back in 2002 was $197,000, and the Commission was also required to host the system itself, which further added to the cost. As an example of hosting costs, currently between equipment and management, the Commission expends an additional $211,213 per year on average for its CAP manager consultant to perform this service. The BaseTech proposal includes the first year of hosting under its base price, and subsequent two years of the proposed contract call for hosting to be charged at a rate of $2,000/month. Therefore, utilizing BaseTech's managed hosting services would significantly reduce the Commission's cost over time as compared to the Trapeze/Multisystems product. Should a contract with BaseTech be approved, staff proposes to codify this cost savings by reducing the scope of the CAP manager to eliminate hosting services from that contract. The BaseTech Komotor product also reduces the Commission's long term financial exposure on another front by significantly reducing the annual software maintenance fee when compared to the Trapeze/Multisystems RidePro software. In comparison to the $10,000 yearly maintenance fee proposed by Base Tech, Trapeze/Multisystems charged the Commission $69,820 for maintenance for FY 2011/12. This fee has also been rising at a rate averaging 5% year over year. As such and even taking the build cost into account, the Commission will be even or possibly ahead financially within two years by using the BaseTech software. Additionally, Base Tech proposes to include the first year of maintenance at no additional cost to the Commission. Lastly and most contentious, when it came to staff's negot1at1ons with Trapeze/Multisystems, is the issue of intellectual property ownership. With the RidePro license, the Commission is not allowed to either maintain or manipulate the RidePro software to its own benefit. This feature of the Trapeze/Multisystems Agenda Item 7G 286 license is overly restnct1ve in the opm1on of both Commission legal counsel and staff and is one of the primary factors behind the security breech that left the Commission exposed and "on the hook" for the costs associated with re-securing the system. Conversely with the BaseTech software, the Commission would retain full ownership rights as well as full rights to manipulate the code and programming to suit its own needs. The Commission also would retain the right to host the BaseTech Komotor product itself as well as perform its own system maintenance should it decide to do so in the future. Significant flexibility and long term cost savings would therefore also be realized by the Commission from this change in license. Given the benefits outlined above, staff is recommending the Commission award an agreement to Base Technologies LLC for the design, construction, and implementation of the Komotor Ridematch Software system in the amount of $134,000. This will include the first year of maintenance and hosting. It is further staff's recommendation that this award include two one year options for hosting and maintenance services in the amount of $34,000 per year and an additional $14,000 in programming contingency. This results in a three-year contract amount not to exceed $216,000 should the base contract and the two one-year options be exercised. Financial Information In Fiscal Year Budget: I Yes I I FY 2011/12 Amount: I $134,000 N/A Year: FY 2012/13 + $82,000 Source of Funds: I Measure A Budget Adjustment: I No N/A GL/Project Accounting No.: 632107 65520 263 41 65520 Fiscal Procedures Approved: ~~ I Date: I 01/19/12 Attachment: Draft Agreement No. 12-41-04 7-00 Agenda Item 7G 287 Agreement No. 12-41-047-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR COMMUTER ASSISTANCE PROGRAM SOFTWARE SERVICES WITH BASE TECHNOLOGIES, LLC 1. PARTIES AND DATE. This Agreement is made and entered into this_ day of , 2012, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and BASE TECHNOLOGIES ("Consultant"), a Limited Liability Corporation. 2. RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing commuter assistance program software services to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain consulting services for the Commission Commuter Assistance Program Software Project ("Project") as set forth herein. 3. TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2 Term. The term of this Agreement shall be from the date first specified above to June 30, 2015, unless earlier terminated as provided herein. Consultant shall 288 complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractbr basis and Consultant is not an employee of Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of Commission and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: Dorian Sellitto, Chief Operating Officer. 3.7 Commission's Representative. Commission hereby designates the Executive Director, his or her designee, to act as its representative for the performance of this Agreement ("Commission's Representative"). Commission's representative shall have the power to act on behalf of Commission for all purposes under this Agreement. Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 2 289 3.8 Consultant's Representative. Consultant hereby designates Dorian Sellitto or his or her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from Commission, any Services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant's errors and omissions. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cai/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3 290 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may a~ise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1),,General Liability: Insurance Services Office Commercial General Liability coverage (occurrE:ft1ce form CG 0001 ); (2) Automobile Liability: Insurance Services Office Busin\~ss Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General, Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Practices Liability limits of $1,000,000 per accident. 3.12.3 [Reserved] Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $1,000,000 per claim. 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and 4 291 agents shall be covered as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant (D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the Commission; and, (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the Commission, its directors, officials, officers, employees and agents. 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current AM. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 5 292 3.12. 7 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.13 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Fees and Payment 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed Two Hundred Sixteen Thousand Dollars and No Cents ($216,000.00) without written approval ofCommission'sExecutive Director ("Total Compensation"). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the proper 6 293 completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.15 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen ( 15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: 7 294 CONSULTANT: Base Technologies, LLC 1749 Old Meadow Road, Suite 500 Mclean, VA 22102 Attn: Dorian Sellitto COMMISSION: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.18 Ownership of Materials/Confidentiality. 3.18.1 Documents & Data. This Agreement creates an. exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-licen$e any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are pr~pared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission's sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media ("Intellectual Property") prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. 8 295 The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3., 18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this 9 296 Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to alleged negligent acts, omissions or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award ordecree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and volunteers, for any and a Illegal expenses and costs, incllllding reasonable attorney's fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. ·.·Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required ·by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shailsurviveany expiration or termination of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreemer;1ts. This Agreement may only be modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 10 297 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests. 3.27.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term ofthis Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to aU provisions stipulated in this Agreement. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at 11 298 the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.31 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub- consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 12 299 3.34 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, shall survive any such expiration or termination. 3.35 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.36 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.37 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.38 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. [SIGNATURES ON FOLLOWING PAGE] 13 300 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR COMMUTER ASSISTANCE PROGRAM SOFTWARE SERVICES WITH BASE TECHNOLOGIES IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: John J. Benoit Chairman Approved as to Form: By: Best Best & Krieger LLP General Counsel 14 301 BASE TECHNOLOGIES, LLC By: Signature Name Title Attest: By: __________________ _ Its: Secretary EXHIBIT "A" SCOPE OF SERVICES L_INSERT_j A-1 302 EXHIBIT "8" SCHEDULE OF SERVICES L_INSERT __] B-1 303 EXHIBIT "C" COMPENSATION L_INSERT_j C-1 304 ---------·~~~~~- AGENDA ITEM 8 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 2, 2012 1~-----------+-- TO: Riverside County Transportation Commission 1~-----------+-- FROM: Michael Blomquist, Toll Program Director ·~-----------+-- THROUGH: Anne Mayer, Executive Director ·~-----------+-- Agreement with Parsons Transportation Group to Provide SUBJECT: Engineering Services for the Preparation of Plans, Specifications, Cost Estimates, and Related Services for Improvements to State Route 91 in the Eastbound Direction and to the State Routes 71 /91 Interchange 1.!:::=====:!::::::::: STAFF RECOMMENDATION: This item is for the Commission to: 1) Award Agreement No. 11-31-110-00 to Parsons Transportation Group, Inc. (Parsons) to provide engineering services for the preparation of plans, specifications, and cost estimates (PS&E) and related services for improvements to State Route 91 in the eastbound direction and to the 71 /91 interchange, from approximately one-quarter mile west of Green River Road to Serfas Club Drive in the city of Corona based on the attached project scope, schedule, and cost in the amount of $8,136,031, plus a contingency amount of $804,537, for a total amount not to exceed $8,940,568, contingent upon obligation of federal funds; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Authorize the Executive Director to approve contingency work up to the total not to exceed amount as may be required for the project. BACKGROUND INFORMATION: On November 5, 2002, the voters of Riverside County approved the extension of Measure A, authorizing the collection of a one-half percent retail transactions and use tax to fund transportation programs and improvements within the county of Riverside, and adopting the Riverside County Transportation Improvement Plan. Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the tax in furtherance of the Measures. The services to be provided will be funded with Measure A proceeds and/or other state/federal funds as applicable. Agenda Item 8 305 Improvements to the 71 /91 interchange was one of the projects identified and approved by the voters as part of the 2009 Measure A and was included in the 2009 Measure A 1 0-Year Delivery Plan. The project would improve mobility on SR-91 and SR-71 by enhancing operations and the capacity of the 71 /91 interchange by constructing a new, direct flyover connector from eastbound SR-91 to northbound SR-71 and reconfiguring the eastbound SR-91 ramp between Green River Road and the 71 /91 interchange. Agreement No. 08-31-033-00 (Caltrans No. 8-1380) and its subsequent amendment, Agreement No. 1 08-31-033-01 (Caltrans No. 8-1380/1 ), between the Commission and Caltrans executed in 2008 and 2011, respectively, provide the Commission responsibility for project approval and environmental document (completed in June 2011 ), PS&E, and right of way activities. Selection Process Under California law, a selection by the Commission for professional services of private architectural or engineering type services, as defined under the California Government Code, must be made on the basis of demonstrated competence and professional qualifications. This qualifications based process is used to determine which firm is the most qualified and, as a result, the most qualified firm will enter into negotiations with the Commission to establish a fair and reasonable price for the subject services. Request for Qualifications (RFQ) No. 11-31-11 0-00 for the provision of PS&E services for construction of the 71 /91 interchange project was issued on May 16, 2011. A pre-proposal conference was conducted on June 7, 2011, and staff responded to all questions from potential offerors. The deadline for submittal of statements of qualifications (SOQ) was July 12, 2011. The Commission received SOQs from three firms -BergerABAM, Parsons Brinckerhoff (PB), and Parsons prior to the deadline. An evaluation committee was appointed to review the SOQs received and to conduct firm interviews. The evaluation committee was comprised of Commission staff, a representative from the county of Riverside, and a representative from the city of Corona. Based on the committee's evaluation of the written SOQ submittals and pursuant to the terms of the RFQ, the committee shortlisted two of the three offerors and invited those firms to the interview phase of the evaluation and selection process. The shortlisted firms included: • Parsons Brinckerhoff • Parsons Transportation Group, Inc. Agenda Item 8 306 Interviews with the referenced firms were conducted on September 13, 2011, and, after final scoring by the evaluation committee, Parsons was ranked the most qualified firm under the terms of the RFQ. Staff recommends award of Agreement No. 11-31-11 0-00 to Parsons Transportation Group, Inc. to provide engineering services for the preparation of PS&E for proposed improvements to SR-91, in the eastbound direction and to the 71 /91 interchange, from approximately one-quarter mile west of Green River Road to Serfas Club Drive in the city of Corona based on the attached project scope, schedule, and cost in the amount of $8,136,031, plus a contingency amount of $804,537 to cover potential changes in scope, for a total amount not to exceed $8,940,568. Award of Agreement No. 11-31-11 0-00 is contingent upon federal obligation of unexpended funds designated for project improvements in this area. Staff recommends authorizing the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. Staff further recommends authorizing the Executive Director to approve contingency work up to the total not to exceed amount as may be required for the project. Financial Information In Fiscal Year Budget: I Yes I 1 FY 2011 I 1 2 Amount: I $1,000,000 Year: FY 2012/13 + $7,940,568 Source of Funds: I Federal Earmark Budget Adjustment: I No GLA/Project Accounting No.: loo3021 81102 262 31 81101 Fiscal Procedures Approved: I ~~ I Date: I 01/23/12 Attachment: Draft Agreement No. 11-31-110-00 Agenda Item 8 307 AGREEMENT N0.11-31-110-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH PARSONS TRANSPORTATION GROUP, INC. FOR PREPARATION OF PLANS, SPECIFICATIONS AND COST ESTIMATE (PS&E) FOR THE CONSTRUCTION OF THE STATE ROUTE 91/ STATE ROUTE 711NTERCHANGE IMPROVEMENTS PROJECT 1. PARTIES AND DATE. This Agreement is made and entered into this_ day of , 2012, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and PARSONS TRANSPORTATION GROUP, INC. ("Consultant"), an Illinois coproration. 2. RECITALS. 2.1 On November 8, 1988 the Voters of Riverside County approved Measure A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the "tax") to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the "Plan"). 2.2 Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the Tax in furtherance of the Plan. 2.3 On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for an additional thirty (30) years for the continued funding of transportation and improvements within the County of Riverside. A source of funding for payment for professional services provided under this Agreement is federal funds from the United States Department of Transportation pursuant to the following projecUprogram [INSERT NAME OF FEDERAL PROGRAM]. This Agreement shall not be deemed to be approved by the Commission until the certifications shown in Exhibits "E" and "F" attached hereto and incorporated herein by reference, are executed and incorporated in this Agreement. 308 2.4 Consultant desires to perform and assume responsibility for the provision of certain professional services required by the Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing L_INSERT TYPE OF SERVICES__j services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. 2.5 The Commission desires to engage Consultant to render such services for the State Route 91/State Route 71 lnterchang~ Improvement Project project ("Project"), as set forth in this Agreement. · 3. TERMS. 3.1 General Scope of Services. Consultant shalt furnish all technical and professional services, including labor, material, equipme(lt,. transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the professional L_INSERT TYPE OF SERVICES__j services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. · · · 3.2 Commencement of Services. [__USE THIS PARAGRAPH IF NOTICE TO PROCEED OR. LIMITED NOTICE TO PROCEED HAS BEEN ISSUED __j Commission has authorized Consultant to commence performance of the Services by a "Notice to Proceed" or "Limited Notice to Proceed" dated --,---------· Consultant agrees that Services already performed pursuant to the "Notice to Proceed" or "Limited Notice to Proceed" shall be governed by all the provisions of this Agreement, including all indemnification and insurance provisions. L_USE THIS SENTENCE IF NO NOTICE TO PROCEED OR LIMITED NOTICE TO PROCEED HAS BEEN ISSUED__j The Consultant shall commence work upon receipt of a written "Notice to Proceed" or "Limited Notice to Proceed" from Commission. 3.2.1. Pre-Award Audit. As a result of the federal funding for this Project, and to the extent Caltrans procedures apply in connection therewith, issuance of a "Notice to Proceed" may be contingent upon completion and approval of a pre- award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The federal aid provided under this Agreement is contingent on meeting all Federal requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The Consultant's files shall be maintained in a manner to facilitate Federal and State process reviews. In addition, the applicable federal agency, or Caltrans acting in behalf of a federal agency, may require that prior to 2 309 performance of any work for which Federal reimbursement is requested and provided, that said federal agency or Caltrans must give to Commission an "Authorization to Proceed". 3.2.2 Post-Award Audit. In the event that Caltrans authorizes the Commission to issue a "Limited Notice to Proceed", Consultant's cost proposal, set forth in the attached Exhibit "C", will be subject to a post-award audit by Caltrans. Consultant's files shall be maintained in a manner to facilitate Federal and State process reviews. If any post-award audit recommendations are received by Commission from Caltrans, Exhibit "C" shall be adjusted by Consultant and approved by Commission to conform to the audit recommendations. Consultant agrees that individual items of cost may be incorporated into the attached Exhibit "C", based on the interim or post-award audit recommendations of Caltrans, at Commission's sole discretion. Refusal by Consultant to incorporate the interim audit or post-award recommendations of Caltrans will be considered a breach of this Agreement and cause for termination. 3.3 Term. The term of this Agreement shall be from the date first specified above or the date of issuance of the Notice to Proceed by the Commission, whichever occurs first, to December 31, 2014, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 3.4 Commission's Representative. The Commission hereby designates the Commission's Executive Director, or his or her designee, to act as its Representative for the performance of this Agreement ("Commission's Representative"). Commission's Representative shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission's Representative shall also review and give approval, as needed, to the details of Consultant's work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission's Representative or his or her designee. 3.5 Consultant's Representative. Consultant hereby designates David Speirs to act as its Representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his or her professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. Consultant shall work closely and cooperate fully with Commission's Representative and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission's Representative. 3 310 3.6 Substitution of Key Personnel. Consultant has represented to the Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions of Section 3.14. The key personnel for performance of this Agreement are: L_LIST NAMES AND TITLES__j. 3. 7 Preliminary Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission's Representative in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining' environmental clearance as may be required in connection with Federal funding. In the event that Commission's Representative, in his sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this contract, Commission's Representative may require Consultant to revise and resubmit the work at no cost to the Commission. 3.8 Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not be required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. 3.9 Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and. subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Commission, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant's errors and omissions. Any employee of Consultant or its sub- 4 311 consultants who is determined by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Commission, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.10 Opportunity to Cure. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant. 3.11 Inspection of Work. Consultant shall allow the Commission's Representative to inspect or review Consultant's work in progress at any reasonable time. 3.12 Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth in Section ,3,3, the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of. Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement. In the event copyrights are permitted under this Agreement, then in connection with Federal funding, it is hereby acknowledged and agreed that the United States Department of Transportation shall have the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 3.13 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local., state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cai/OSHA requirements, and shall give all notices required by law. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by the United States Department of Transportation. For example, and not by way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or published Record of Decision may be required to be approved and/or completed by the United States Department of Transportation. For Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible 5 312 for all costs ans1ng therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.14 Termination. 3.14.1 Notice; Reason. Commission may, by written notice to Consultant, terminate this Agreement, in whole or in part, at any time by giving written notice to Consultant of such termination, and specifying the effective date thereof ("Notice of Termination"). Such termination may be for Commission's convenience or because of Consultant's failure to perform its duties and .. obligations under this Agreement, including, but not limited to, the failure of Consultant to timely perform Services pursuant to the Schedule of Services described in Section 3.15 of this Agreement. Consultant may not terminate this Agreement except for cause. 3.14.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 3.14.3Effect of Termination For Convenience. If the termination is to be for the convenience of the Commission, the Commission shall compensate Consultant for Services fully and adequately provided through the effective date of termination. Such ~ayment shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by Commission's Representative to show the Services actually completed by Consultant prior to the effective date of termination. This Ag:reement shal!terminate on the effective date of the Notice of Termination. 3.14.4 Effect of Termination for Cause. If the termination is for cause, Consultant shall be compensated for those Services which have been fully and adequately completed and accepted by the Commission as of the date the Commission provides the Notice of Termination. In such case, the Commission may take over the work and prosecute the same to completion by contract or otherwise. Further, Consultant shall be' liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in Section 3.9. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 6 313 3.14.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 3.14.6 Procurement of Similar Services. In the event this Agreement is terminated, in whole or in part, as provided by this Section, the Commission may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.14. 7 Waivers. Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 3.15 Schedule and Progress of Services. 3.15.1 Schedule of Services. Consultant shall perforrl'rthe Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of Commission's Representative, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.15.2 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission's Representative. 3.15.3 Trend Meetings. Consultant shall conduct trend meetings with the Commission's Representative and other interested parties, as requested by the Commission, on a bi-weekly basis or as may be mutually scheduled b