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HomeMy WebLinkAbout1994-07-12 - AGENDA REPORTS - DBE PGM ANNUAL GOALAGENDA REPORT City Manager Approi Item to be presented Jeff Kolin CONSENT CALENDAR DATE: July 12, 1994 SUBJECT: Disadvantaged Business Enterprise Program and Annual Goal Resolution No. 94 - 95 DEPARTMENT: Public Works BACKGROUND The City's transit system is required to have a Disadvantaged Business Enterprise (DBE) Program in place prior to receiving Federal funds for transit use. This is a program whereby the City is obligated to make a diligent effort to do a certain percentage (approx. 15 to 20%, by formula) business with minority- and women -owned businesses when expending these funds. The requirement of a DBE program is administered through the Civil Rights Department of the Federal Transit Administration (FTA). This program will only apply to certain transit projects which are Federally funded. LJ The intention of the program is that disadvantaged business enterprises are to be afforded every opportunity to participate in the performance of contracts relating to the City's procurement and construction activities. The Surface Transportation Assistance Act of 1982 set a national goal of expending at least ten percent (10%) of Federal highway and transit funds with disadvantaged small businesses. Presently, the FTA is reviewing the attached draft DBE program. It is expected that the FTA will approve this draft as a final product upon its second review of the calculation used to determine the percentage, and the changes in the text in the "reasonable price section. Both subjects are presently under review by the FTA. RECOMMENDATION Adopt Resolution No. 94 - 95 authorizing the City Manager to approve the Disadvantaged Business Enterprise Program and a 1994 annual goal of approximately fifteen to twenty percent (15-20%). ATTACBAlENTS 1. Draft DBE Program 2. Resolution No. 94 - 95 see%dbe02.mar Adopted: 7 -IJ — 9 n1ten-AT Oq CITY OF SANTA CLARITA DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM JULY 1994 POLICY STATEMENT The City of Santa Clarita (hereinafter "CITY"), recipient of Federal financial assistance from the Federal Transportation Administration (hereinafter "FTA"), is committed to a Disadvantaged Business Enterprise Program (hereinafter "DBE") in accordance with Federal Regulations issued by the Department of Transportation (hereinafter "DOT") on March 31, 1980, (49CFR Part 23) and revised July 21, 1983, April 27, 1987 and on October 21; 1987. FTA is the lead agency for the CITY with respect to the requirements for disadvantaged business enterprise participation in DOT - funded projects as contained herein and the approval of this policy. It is the intention of the CITY that disadvantaged business enterprises shall be afforded every practicable opportunity to participate in the performance of contracts relating to the CITY's procurement and construction activities. To this end, the CITY shall comply with the Surface Transportation Assistance Act of 1982 which set a national goal of expending at least ten (10%) percent of Federal Highway and transit funds with disadvantaged small businesses. The CITY is determined to provide opportunities for DBE participation in the competitive bidding process for the CITY's contract requirements through the establishment of the procedures outlined herein. This policy shall apply to all construction projects, purchases of materials, equipment (excluding transit vehicle procurement) and supplies and professional service contracts. It is the policy of the CITY to establish participation goals for business enterprises owned and controlled by minorities in accordance with the following standards: A. Goals shall be based on projections of contract awards and the size and nature of the total contracts and procurements estimated for any given year. B. Goals shall be related to the availability of DBEs who have the capability to perform the types of services or to furnish the types of procurements which will satisfy the CITY's projected contract needs during the course of a given year. C. Goals shall take into account the minority population of the area in which the CITY operates.. D. Goals shall take into account the CITY's prior experience with the types, nature and scope of minority business participation. A DBE is defined as a small business concern pursuant to the Small Business Act in: 2 A. Which at least 51 percent of the ownership is owned by one or more socially and economically disadvantaged individuals, or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals, B. Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. "Small Business Concern" is defined as a small business pursuant to Section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto, except that a small business concern shall not include any concern or group of concerns controlled by the same socially and economically disadvantaged individual or individuals which has annual average gross receipts in excess of $14 million over the previous three (3) fiscal years. Therefore, DBE firms must be graduated from the DBE program if their average annual gross receipts over three (3) years exceed $14 million, The Secretary of the Department of Transportation shall adjust this figure from time -to -time for inflation. Socially and economically disadvantaged individuals mean those individuals who are citizens of the United States (or lawfully admitted permanent residents) and who are women, Black Americans, Hispanic Americans or other Spanish or Portuguese, Native Americans, Asian -Pack Americans, Asian - Indian Americans and any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to Section 8(a) of the Small Business Act. The DBE program as described here will be implemented and administered by the CITY's DBE Officer. The DBE Officer shall develop a referral system on managerial and technical assistance for interested DBE as well as disseminate information on available business opportunities to the disadvantaged business community to facilitate DBE bidding on CTI'Y projects. Although the DBE Officer is the primary person responsible for implementing the DBE policy, the DBE Officer will work closely with other departments and consultants of the Cl"I'Y, including legal, procurement, engineering, government affairs and others who are responsible for making management and other decisions relative to the CITY's procurement and construction contracts. The DBE Officer shall offer guidance to the above -referenced CITY personnel regarding the DBE responsibilities. The DBE Officer shall also, from -time-to-time_report progress of the program to the Santa Clarita City Council through the City Manager. II. DBE OFFICER It shall be the primary responsibility of the DBE Officer to administer and monitor the DBE Program against specific objectives. The DBE Officer will ensure compliance with Federal, State and local laws and regulations while assisting DBEs in overcoming barriers to participation in the CITY's programs. 91 The specific duties and responsibilities of the DBE Officer are set forth in Exhibit A. attached hereto and incorporated herein by this reference. III. PROCEDURES TO ENSURE DBE EQUAL OPPORTUNITY TO COMPETE FOR CONTRACTS AND SUBCONTRACTS A. Where appropriate statutes and regulations permit and are economically feasible, the CITY will undertake the following actions: 1. Develop bid packages and Request for Proposals (RFP) so as to increase potential DBE participation. 2. When designing facilities, take into consideration the types of trades or firms available. 3. Work with joint ventures among DBE and non -DBE firms. 4. Consider purchasing supplies and/or leasing the required equipment and contracting only for the expertise required to perform the work. 5. Provide DBE associations with specification and RFPs in a timely manner. Whenever necessary, the cost of providing DBEs with specifications and RFPs will be bome by the CITY and included in the project grant application to FTA. 6. Solicitation for prime contracts must state what the DBE percentage is for the contract. Potential prime contractors must submit an assurance with their bids or proposals that they will make sufficient reasonable effort to meet the goal. B. Means to Overcome Barrier to Program Participation - the CITY will offer the following additional assistance to DBEs as deemed necessary: 1. Information, upon request, of the CITY's organizational structure and its procurement requirements. Further explanation will be provided on procurement policy procedures and general bid requirements. Each bid package will identify the CITY's DBE Officer as the contact point for additional assistance. 2. Open public records will be made available for the DBE's review and evaluation of successful bid documents of already completed similar procurements. 4 3. Debriefing sessions will be held, as requested by bidders, to explain specific reasons for unsuccessful bids. 4. How plans and specifications can be obtained. 5. CITY personnel shall be available during normal business hours to answer procurement questions. 6. To develop types of supplies and services needed. C. Challenge: I. Any third party may challenge the socially and economically disadvantaged status of any individual (except an individual who has a current Section 8(a) Certification from the Small Business Administration) presumed to be socially and economically disadvantaged if that individual is an owner of a firm certified by or seeking certification from the CM as a disadvantaged business. The challenge shall be made in writing to the CITY. 2. With its letter, the challenging party shall include all information available to it relevant to a determination of whether there is reason to believe that the challenged party is, in fact, not socially and economically disadvantaged. 3. The CITY shall determine, on the basis of the information provided by the challenging party, whether there is a reason to believe that the challenged party is in fact not socially and economically disadvantaged. a. If the CTTY determines that there is not reason to believe that the challenged party is not socially and economically disadvantaged, the CITY shall so inform the challenging party in writing. This terminates the proceeding. b. If the CITY determines that there is reason to believe that the challenged party is not socially and economically disadvantaged the CITY shall begin a proceeding as provided in paragraphs (b)(i), (ii) and (iii) of this paragraph. 5 i. The CITY shall notify the challenged party in writing that his or her status as a socially and economically disadvantaged individual has been challenged. The notice shall identify the challenging party and summarize the grounds for the challenged party to provide to the CITY within a reasonable time, information sufficient to permit the CITY to evaluate his or her status as a socially and economically disadvantaged individual. ii. The CITY will evaluate the information available to it and make a proposed determination of the social and economic disadvantage of the challenged party. The CITY will notify both parties of this proposed determination in writing, setting forth the reasons for its proposal. The CITY will provide an opportunity to the parties for an informal hearing, at which they can respond to this proposed determination in writing and/or in person. Following the informal hearing, the CITY will make a final determination. The CITY will inform the parties in writing of the final determination, setting forth the reasons for its decision. The final determination of the CITY may be appealed to the Department of Transportation by the adversely affected party. In addition, the CITY will have an open door policy and will work closely with DBE associations to encourage DBEs to discuss their capabilities with the DBE Officer. Outreach efforts will also be made to inform DBEs of bid notices and specifications related to their capability areas. IV. SERVICES OF DISADVANTAGED BANKS The CITY shall explore the full extent of services offered by banks owned and controlled by disadvantaged individuals in the Santa Clarita and greater Los Angeles area and determine areas in which the CITY may utilize their services. The CITY shall also encourage its prime contractors to use the services of such banks. V. DBE DIRECTORY The.DBE Officer shall continue to maintain a current list of DBEs which provide commodities and services which might typically be used by the CITY. The CITY shall also draw on the services of Equivest (Program Management Center) for assistance in identifying DBEs to work on specific required contract categories. This listing will be compiled from existing sources and will be updated annually. The CITY will invite DBEs to submit supplemental information to this list. In addition, the CITY will maintain copies of other local directories. VI. DETERMINING DBE ELIGIBILITY The DBE Officer shall require that the DBE listed by bidders for participation in the contract, be certified as eligible DBEs. The DBE Officer may accept certifications of DBEs made by the Department of Transportation or agencies thereof, the Small Business Administration, other FCA recipients and the CITY. Where the eligibility of a DBE has not yet been determined, the DBE Officer shall require the submittal of information including, but not limited to, that contained in Exhibit A, attached hereto and incorporated herein by this reference. VII. PERCENTAGE GOAL A. The CITY hereby established a 15 percent goal for participation by DBEs in contracts, subcontracts and/or joint ventures awarded by the CITY. B. The CITY's overall DBE participation goals for the procurement category of equipment, materials, supplies and professional and non-professional services is 15 percent for firms owned and controlled by disadvantaged individual or individuals. In arriving at these goals, the CITY has evaluated (1) the previous years' procurement activities to determine the DBE participation level achieved; and (2) the Short Range Transit Plan, Transportation Improvement Program and the current budget to identify the projected procurement activities available to DBEs. The CITY then compared the availability and capability of those DBEs Listed with the projected procurement activities. The CITY will re-evaluate goals for equipment, materials, supplies and professional and non-professional services on an annual basis, analyzing the projected versus the actual DBE participation for the previous year. The 15 percent DBE goal is a commitment to strive for, to the extent possible. The estimate for DBE participation is in excess of the ten percent goal, as mandated by the Surface Transportation Assistance Act of 1982, is being implemented and is an optimistic expectation that the CITY can find enough qualified funis, based on previous experience. [f/ In establishing contract goals, the CITY shall consider the following factors: 1. The overall projection of contract awards in the particular areas. 2. The availability of fu -ms owned and controlled by minorities in each category or area of specialty. In defining the geographic area for determining availability, the CITY shall follow the same approach it takes with respect to non -DBE firms for each type of procurement. 3. The dollar amount and percentage of procurement projected to be required from "sole -source" vendors., (This includes material and supplies required to be purchased from Original Equipment Manufacturers). 4. Comparison of the goals established for the previous year to the actual percentage utilization for that year and the experience of the CITY in obtaining participation in its procurement and professional services contracts from firms owned and controlled by socially and economically disadvantaged individuals. 5. Unique characteristics of the procurements of equipment, supplies, materials and professional and non-professional services proposed for the following year. 6. Any suggestions and information developed from the DBE Advisory Committee, industry and professional sources and other public agencies.. (This will include all revised Small Business Administration size standards). 7. Any other relevant criteria. In calculating goals, the "sixty (60) percent rule" has been observed. The 60 percent rule states that the CITY may count toward its DBE goals 60 percent of its expenditures for materials and supplies required under a contract and obtained from a DBE dealer. In an effort to identify DBEs in a reasonably wide geographical area to expand on the CITY's DBE directory, copies of available published directories are obtained on a yearly basis from the Southern California Association of Governments and the Southern California Rapid Transit District. 9 VM. IDENTISCATTON OF DBEs BY COhrPE7TTOP IX. The CITY shall indicate goals for the use of firms owned and controlled by minorities in solicitation for FTA assisted contracts which provide opportunities for DBE participation. Solicitation shall require all bidders/proposers to submit a written assurance of meeting the goals in their bids or proposals. Within a reasonable time, ten (10) days after the opening of bids and before the award of the contract, the CITE' shall require all bidders or proposers wishing to remain in competition for the contract, to submit the names of DBE subcontractors, a description of the work each is to perform and the dollar value of each proposed DBE subcontract. TO COMPETITORS THAT MEET BE GOALS The CITY shall determine whether the competitor offering the lowest price of the firms meeting the DBE contract goals has offered a reasonable puce for the conttaage participation ct. The selection process will consider the competitors price and percent of DBE in the contract and will utilize a DBE participation matrix nt tank the b competitors. The CITY will award contracts in accordance with t ids of CFR Part id DETERMINATION OF LOWEST RESPONSIBLE BIDDER A. "Reasonable Price." Prior to the bid opening, the City Engineer shall state publicly the contract price which has been determined to be a reasonable one for the subject contract. The reasonable price determination shall be based on the estimate of the CITY's consultants and/or staff relative to the cost of the contract and other relevant criteria that the CITY would consider in the event that only one bid was submitted to perform the contract, including, but not Limited to, the amount of funds available in the CITY's budget for the specific contract work. The factors considered in arriving at the reasonable price and the basis therefore shall be documented. B. "Evaluation of Bid " After the bid opening, the DBE Review Committee shall evaluate all bid proposals and requiredinformationsubmitted by bidders for the contract to determine a recommendation for award of tate contract to the lowest responsible bidder. The Committee shall fust consider all bids that Fare equal to -or less than the reasonable price established for the contract. Within this group, the bidder with the lowest bid price who also meets the specified DBE goals shall be deemed the lowest responsible bidder. In the event that none of the bidders in this group has met the specified DBE goals, the lowest responsible bidder shall be deemed that bidder within this group with the highest total DBE participation. In the event that no bidder within this group has DBE participation, the Committee will consider the bidder with the lowest bid price who has demonstrated that sufficient reasonable efforts were made to meet the specified DBE goals as the lowest responsible bidder. E In the event that none of the bids submitted is equal to or less than the reasonable price established, the Committee may recommend award of the contract to any bidder that demonstrates that sufficient reasonable efforts were made to meet the specified DBE goals. X. DBE COMPLIANCE BY CONTRACTORS AND SUBCONTRACTORS The CITY shall assist proposers and/or DBEs in all contracts involving FTA financial assistance as outlined in Section lII. The CITY has deemed necessary, the following means to determine compliance of contractors and subcontractors (1) review of payroll records, (2) submission of payment document and (3) other compliance insurance measures as considered appropriate in the circumstance. Contractors and subcontractors will be required to maintain project records for a period of three (3) years after completion of the contracts. The CITY or any authorized FTA or Federal agency shall have access and inspection right to those contract records during the retention period.. XI. SET -ASIDES The CITY is aware that setting aside some portion of its purchasing requirements for DBE -only bidding is a technique available for assuring DBE participation. However, the law as interpreted by ruling of the California Supreme Court appears to prohibit such set -asides as violation of the State and Federal Constitutions. At this time, therefore, the set-aside is not part of the Ci"I'Y's DBE Program. 10 EXHIBITS INFORMATION FOR DETERI�vIINING DISADVANTAGED BUSINESS ENTERPRISE ELIGIBILITY I. Name of firm II. Address of firm M. Business telephone IV. Indicate whether firm is sole proprietorship, partnership, joint venture, corporation or other business entity (please specify) V. Nature of firm's business VI. Years firm has been in business VII. Ownership of firm: Identify those who own five (5) percent or more of the firm's ownership. Columns a and f need to be completed only if the fum is less than one hundred (100) percent disadvantaged owned. a b c d Name Race SexYears of Ownership e Ownership Percentage f Voting Percentage With firms less than one hundred (100) percent disadvantaged owned, list the contributions of money, equipment, real estate or expertise of each of the owners. 11 VIII. Control of firm: Identify by name, race, sex and title in the fum those individuals (including owners and non -owners) who are responsible for day-to-day management and policy decision-making, including, but not limited to, those with prime responsibility for: A. Financial decisions B. Management decisions, such as; 1 Estimating 2. Marketing and sales 3. Hiring and ruing of management personnel 4. Purchase of major items or supplies C. Supervision of field operations IX. For each individual or individuals Listed in Section VIII, provide a brief summary of the person's expertise and number of years with the firm. Please indicate the person's qualifications for the responsibilities given him or her. X. Describe or attach a copy of any stock options or other ownership options that are outstanding, and any agreements between owners or between owners and third parties which restrict ownership or control of disadvantaged owners. XI. Identify any owner (see Section VII) or management official (see Section VIII) of the named firm who is or has been an employee of another fu -in that has had an ownership interest in or a present business relationship with the named firm. Present business relationships include shared space, equipment, financing or employees as well as both funis having some of the same owners. XII. What are the gross receipts of the firm for each of the last three (3) years? Year ending Year ending Year ending XIII. Name of bonding company, if any: 12 XIV. Are you authorized to do business in the State as well as locally, including all necessary business licenses? XV. Indicate if this firm or other firms with any of the same officers have previously received or been denied certification of participation as a DBE and describe the circumstances. Indicate the name of the certifying authority and the date of such certification or denial. AFFIDAVIT "The undersigned swears that the foregoing statements are true and correct and include all material information necessary to identify and explain the operations of (name of firm) as well as ownership thereof. Further, the undersigned agrees to provide through the prime contractor or, if no prime, directly to the CITY current, complete and accurate information regarding actual work performed on the project, the payment therefore and any proposed changes, if any, of the foregoing arrangements and to permit the audit and examination of books, records and files of the named firm. Any material misrepresentation will be grounds for terminating any contract which may be awarded and for initiating action under Federal or State laws concerning false statements." Note -- If, after filing Exhibit B and before the work of this firm is completed on the contract covered by this regulation, there is any significant change in the information submitted, you must inform the CITY of the change through the prime contractor or, if no prime contractor, inform the CITY directly. Signature Name Title Date Corporate Seal (if appropriate) _ y Date State of County of On this day of 19 , before me appeared (Name), to me personally known, who, being duly sworn, did execute the foregoing affidavit, and did state that he or she was properly authorized by 13 (Name of firm) to execute the affidavit and did so as his or her free act and deed. Seal Notary Public Commission expires 14 EXHIBIT B INFORMATION FOR DETERIVIINING JOINT VENTURE ELIGIBILITY (This form need not be filled out if all joint venture firms are disadvantaged owned). I. Name of joint venture II. Address of joint venture M. Telephone number of joint venture IV. Identify the funis which comprise the joint venture. (The DBE partner must complete Exhibit A.) A. Describe the role of the DBE fu-rn in the joint venture B. Describe, briefly, the experience and business qualifications of each non -DBE joint venturer V. Nature of the joint venture's business VI. Provide a copy of the joint venture agreement. VII. What is the claimed percentage of the DBE ownership? VIII. Ownership of the joint venture (This need not be filled out if described within the joint venture agreement provided by Item VI.) A. " Profit and loss sharing B. Capital contributions, including equipment C. Other applicable ownership interests 15 IX. Control of and participation in this contract. Identify those individuals (and their titles) who are responsible policy decision-making, including, but not limited to, for: A. Financial decisions B. Management decisions, such as: Estimating Marketing and sales by name, race, sex and firm, for day-to-day management and those with prime responsibility 3. Hiring and firing of management personnel 4. Purchasing of major items or supplies C. Supervision of field operations AFFIDAVIT "The undersigned swear that the foregoing statements are correct and include all material information necessary to identify and explain the terms and operation of our joint venture and the intended participation by each joint venturer in the undertaking. Further, the undersigned covenant and agree to provide to the CITY current, complete and accurate information regarding actual joint venture work and the payment therefore and any proposed changes if any, of the joint venture arrangements and to permit the audit and examination of the books, records and files of the joint venture or those of each joint venturer relevant to the joint venture, by authorized representatives of the, CITY or the FTA. Any material misrepresentation will be grounds for terminating any contract which may be awarded and for initiating action under Federal or State law concerning false statements." Name of firm Signature Name Title Date 16 Name of Firm Signature Name Title Date Name of Firm Signature Name Title Date Date State of County of On this day of , 19 before me appeared (Name) to me personally known, who, being duly sworn, did execute the foregoing affidavit, and did state that he or she was properly authorized by (Name of fum) and deed. I to execute the foregoing affidavit and did so of his or her free act Seal Notary Public' Commission expires 17 SPECIFIC RESPONSIBILITIES OF THE DBE OFFICER I. The specific responsibilities of the DBE Officer shall include, but not be limited to the following: A. Analyzing and assessing the mechanisms and resources for the establishment of goals to be achieved in the awarding of contracts to DBEs. B. Developing, monitoring and evaluating the DBE Affirmative Action Program. C. Maintaining and continually updating registry of DEBs with specific information on expertise, work performance and other information that verifies status of ownership. D. Assisting in securing management of technical assistance for the establishment, expansion and overall development of DBEs. E. Providing DBEs with information in sufficient time to prepare bids and quotations.. F. Attending pre-bid conferences to explain DBE requirements. G. Participating on bid and proposal review panels. H. Working with other interested agencies, public and private, to further the objectives of the CITY'S DBE program. This would include, but not be limited to, DBE community economic development agencies and applicable Federal and State assistance agencies. 1. Encouraging the arrangement of joint ventures between DBE and non -DBE firms and two or more DBE firms. J. Providing assistance to contractors in meeting the obligations of the DBE program, contract goals and related Affirmative Action agreements stipulated in contracts. K. Planning and participating in training seminars for the purpose of informing potential bidders of the DBE programs and of business opportunities. L. Monitoring contractors and the overall compliance with DBE commitments during the term(s) of the contract(s). H. The DBE Officer shall offer support services to DBEs in the form of referring them to financial institutions and insurance and bonding companies. The DBE Officer shall work closely with prime contractors in an effort to alleviate potential financial barriers to program participants. 18 DETERNIINING DBE ELIGIBILITY In accordance with 49CFR, Part 23.51, I. To ensure that this part benefits only DBEs which are owned and controlled in both form and substance by one or more minorities or women, the CITY shall use Exhibits A and B to certify firms who wish to participate as DBEs in DOT -assisted contract under this part. II. Except as provided in Paragraph III of this section, each business, including the DBE partner in a joint venture, wishing to participate as a DBE under this part in a DOT - assisted contract shall complete and submit Exhibit A. Each entity wishing to participate as a joint venture DBE under this part in DOT -assisted contracts shall in addition complete and submit Exhibit B. The exhibit(s) shall be signed and notarized by the authorized representative of the business entity. A business seeking certification as a DBE shall submit the required exhibits with its bid or proposal for transmission to the contracting agency involved. III. Under the following circumstances, a business seeking to participate as a DBE under this subpart need not submit Exhibit A or B if - A. A CITY has established a different certification process that DOT has determined to be as or more effective than the process provided for by this section. Where such a process exists, potential DBE contractors shall submit the information required by that CITY's process. B. The potential DBE contractor states in writing that it has submitted the same information to or has been certified by the CITY involved, any DOT element, or other Federal agency that uses essentially the same definition and ownership and control criteria as DOT. The potential DBE contractor shall obtain the information and certification (if any) from the other agency and submit it to the CITY or cause the other agency to submit it. The CITY may rely upon such certification. Where another agency has collected information but not made a determination concerning eligibility, the CITY shall make its own determination based on the information it has obtained from the other agency. C. The potential DBE contractor has been determined by the Small Business Administration to be owned and controlled by socially and economically disadvantaged individuals under Section 8(a) of the Small Business Act, as amended. The potential DBE contractor shall submit proof of such determination. 19 In accordance with 49CFR, Part 23.53 I. The following standards shall be used by the CITY in determining whether a firm is owned and controlled by one or more minorities or women is, and shall therefore be, eligible to be certified as a DBE. Businesses aggrieved by the determination may appeal in accordance with procedures set forth in Section 23.55. A. Bona fide minority group membership shall be established on the basis of the individual's claim that he or she is a member of a minority group and is so regarded by that particular minority community.. However, the CITY is not required to accept this claim if it determines the claim to be invalid. B. An eligible DBE under this part shall be an independent business. The ownership and control by minorities or women shall be real, substantial and continuing and shall go beyond the pro forma ownership of the firm as reflected in its ownership documents. The minority or women owners shall enjoy the customary incidents of ownership and shall share in the risks and profits commensurate with their ownership interests, as demonstrated by an examination of the substance rather than form of arrangements. Recognition of the business as a separate entity for tax or corporate purposes is not necessarily sufficient for recognition as a DBE. In determining whether a potential DBE is an independent business, the CITY shall consider all relevant factors, including the date the business was established, the adequacy of its resources for the work of the contract and the degree to which financial, equipment leasing and other relationships with non -minority firms vary from industry practice. C. The minority or women owners shall also possess the power to direct or cause the direction of the management and policies of the firm and to make the day- to-day as well as major decisions on matters of management, policy and operations. The firm shall not be subject to any formal or informal restrictions which limit the customary discretion of the minority or women owners. There shall be no restrictions through, for example, bylaw provisions, partnership agreements or charter requirements fgr cumulative voting rights or otherwise that prevent the minority or women business owners, without the cooperation or vote of any owner who is not a minority or woman, from making a business decision of the firm.. D. If the owners of the firm who are not minorities or women are disproportionately responsible for the operation of the firm, then the firm is not controlled by minorities or women and shall not be considered a DBE within the meaning of this part. Where the actual management of the firm is contracted out to individuals other than the owner, those persons who have the ultimate power to hire and fine the managers can, for the purposes of this part, be considered as controlling the business. 20 E. All securities which constitute ownership and/or control of a corporation for Purposes of establishing it as a DBE under this part shall be held directly by minorities or women. No securities held in trust, or by any guardian for a minor, shall be considered as held by minorities or women in determining the ownership or control of a corporation. F. The contributions of capital or expertise by the minority or women owners to acquire their interests in the firm shall be real and substantial. Examples of insufficient contributions include a promise to contribute capital, a note payable to the fum or its owners who are not socially and economically disadvantaged or the mere participation as an employee, rather than as a manager. II• In addition to the above standards, the CITY shall give special consideration to the following circumstances in determining eligibility under this part. A. Newly formed firms and firms whose ownership and/or control has changed since the date of the advertisement of the contract are closely scrutinized to determine the reasons for the timing of the formation of or change in the fum. B. A previous and/or continuing employer-employee relationship between or among present owners is carefully reviewed to ensure that the employee -owner has management responsibilities and capabilities discussed in this section. C. Any relationship between a DBE and a business which is not a DBE which has an interest in the DBE is carefully reviewed to determine if the interests of the non -DBE conflicts with the ownership and control requirements of this section. M. A joint venture is eligible under this part if the DBE partner of the joint venture meets the standards for an eligible DBE set for the above and the DBE partner is responsible for a clearly defined portion of the work to be performed and shares in the ownership, control and management responsibilities. IV. A joint venture is eligible to compete in a DBE set aside under this part if the DBE partner of the joint venture meets the standards of an eligible DBE set forth above, and the DBE partner's share in the ownership, control and management responsibilities, risks and profits of the joint venture is at least fifty-one perc (51) ent and the DBE partner is responsible fora clearly defined portion of the work to c performed. V. A business wishing to be certified as a DBE or joint venture DBE by the CITY shall cooperate with the CITY in supplying additional information which may be requested in order to make a determination. 21 VI. Once certified, a DBE shall update its submission annually by submitting a new Exhibit A or certifying that the Exhibit A on file is still accurate. At any time there is a change in ownership or control of the firm, the DBE shall submit a new Exhibit A. VII. Except as provided in section 23.55, the denial of a certification by DOT or the CITY shall be final for that contract and other contracts being let by the CITY at the time of the denial or certification. DBEs and joint ventures denied certification may correct deficiencies in their ownership and control and apply for a certification only for future contracts. VIII: The CITY shall safeguard from disclosure to unauthorized persons, information that reasonably may be regarded as confidential business information, consistent with Federal, State and local law. In accordance with 49CFR, Part 23.45(f)(3). The CITY, in determining whether a firm is an eligible DBE, will take the following steps: (i) Perform an on-site visit to the offices of the fum and to any job sites on which the firm is working at the time of the eligibility investigation; (ii) Obtain resumes or work histories of the principal owners of the firm and personally interview these individuals; (iii) Analyze the ownership of stock in the firm, if it is a corporation; (iv) Analyze the bonding and financial capacity of the firm; (v) Determine the work history of the firm, including contracts it has received and work it has completed; (vi) Obtain or compile a list of equipment owned or available to the firm and the licenses of the firm and its key personnel that are being proposed to perform the work the firm is seeking to do as part of the DBE program; and (vii) Obtain a statement from the firm of the type of work it prefers to perform as part of the DBE program. blP: Comm dbe.tm 22 RESOLUTION NO. 94 - 95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA APPROVING A DISADVANTAGED BUSINESS ENTERPRISE PROGRAM AND THE 1994 ANNUAL GOAL TO SECURE TRANSIT FUNDING IN ACCORDANCE WITH SECTION 9 OF THE URBAN MASS TRANSPORTATION ACT OF 1964, AS AMENDED WHEREAS, the Urban Mass Transportation Act of 1964, as amended, provides funding for a variety of transportation projects, and WHEREAS, on February 23, 1993; the City Council adopted Resolution No. 93-19 authorizing the City Manager to execute and file on the City's behalf, all future applications for funds under the Urban Mass Transportation Act of 1964, as amended, and WHEREAS, on March 8, September 28, and December 14, 1993 applications were filed with the Federal Transit Administration for Section 9 funds, and WHEREAS, on July 12, 1994, at a regular Council meeting, the City Council reviewed and considered agenda material explaining the need to approve a Disadvantaged Business Enterprise Program and set an annual goal. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Clarita as follows: Section 1. As part of the Council meeting of July 12, 1994, City Council authorized the City Manager to approve a Disadvantaged Enterprise Program and a 1994 Annual Goal of between fifteen and twenty percent (15 -20%). Section 2. The City Clerk shall certify the adoption of this resolution. PASSED, APPROVED, AND ADOPTED THIS 1994 MAYOR day of Resolution No. 94 - 95 Page 2 ATTEST: CM CLERK I HEREBY CERTIFY that the foregoing resolution was duly adopted by the City Council of the City of Santa Clarita at a regular meeting thereof, held on the day of , 1994, by the following vote of the Cjuncil: Wd NOES: COUNCILMEMBERS ABSENT: COUNCILMEMBERS CITY CLERK sec%dbeW.mar