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HomeMy WebLinkAboutReso 1985-12113 FESOLUTION NO. 12113 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A MINORITY BUSINESS ENTERPRISE/WOMEN BUSINESS ENTERPRISE/ SECTION 3 PLAN FOR COMMUNITY DEVELOPMENT BLOCK GRANT FUNDED PROJECTS The City Council of the City of Chula Vista does hereby resolve as follows: WHEREAS, the City of Chula Vista receives Community Develop- ment Block Grant (CDBG) funds from the U. S. Department of Housing and Urban Development (HUD); and, WHEREAS, HUD requires CDBG entitlement cities to take affirmative steps to utilize small, minority and women-owned businesses; and, WHEREAS, the HUD recommended method of complying with this requirement is the development of a Minority Business Enterprise (MBE)/Women Business Enterprise (WBE)/Section 3 Plan; and, WHEREAS, the City was found by HUD to be in nonconformance with this requirement; and, WHEREAS, adoption by the City of a MBE/WBE/Section 3 Plan will bring the City into compliance with HUD regulations. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby approved a Minority Busines Enterprise/Women Business Enterprise/Section 3 Plan for Community Development Block Grant-funded project, attached hereto and incorporated herein, as though fully set forth. .~ Approved as to form by · aul G. D~es'rochers, Community Thdmas J. Harron, City Attorney r/x Development Director ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, this 6th do~j of August 85 19 __, by the following vote, to--wit: Malcolm, Scott, Moore AYES: Councilmen: None NAYES: Councilmen: None ABSTAIN: C(xxx:ilmen: McCandliss, Mayor Cox ABSENT: Councilmen: MAYOR PRO TEMPORE ~ Cify Cler~/ ~ STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) s s. 31TY OF CHULA VISTA ) I, JENNIE M FULASZ, CMC, CITY CLERK of the City of Chulo Vista, California, )O HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 12113 ,and that the some has not been amended or repealed. )ATED (seal) Cify Clerk SECTION 3 l/ CITY OF CHULA ~RMATIVE ACTION PROGRAM FOR ALL PROJECTS FUNDED WITH HOUSING AND URBAN DEVELOPMENT FUNDS The Developer, Contractor and all subcontractors shall comply with Section 3 of the Housing and Urban Development Act of 1968, as amended.(12 U.S.C. 1701U). PURPOSE: To provide business and employment opportunities for small ~ses and 1 ower income persons 1 ocated i n San Diego County. BUSINESS OPPORTUNITIES: To the greatest extent feasible, contracts for work in connection with the improvement or construction of the Project shall be awarded to small businesses {see attached S.B.A. size and standards, Exhibit "A") which are located in, or owned in substantial part (51%) by person(s) residing in the project area which is defined as San Diego County (see attached map for boundaries). EMPLOYMENT OPPORTUNITIES: To the greatest extent feasible, the Contractor and subcontractors will provide employment opportunities and training to lower income persons residing in the project area who reside in the South San Diego Bay Area (see attached map for boundaries). Lower income persons are defined as persons earning no more than 80% of the HUD-published annual median income for the San Diego metropolitan statistical area. PRE-AWARD REQUIREMENTS: At least ten {10) days prior to the award of the contract, the City will hold a pre-award conference to review the requirements of the City's Affirmative Action Program and Section 3 of the Housing and Urban Development Act of 1968. In addition, interested community persons or organizations may be invited to participate to voice their concerns as they relate to the project's Affirmative Action Program. Prior to the pre-award conference, the contractor and subcontractor are required to complete the attached Section 3 Employment and Contracting Plan Format (Exhibit B). SECTION 3 CONTRACT PROVISIONS Sec. 13.20 Assurance of compliance with regulations. a. Every contract or agreement for a grant, loan, subsidy, or other direct financial assistance to aid in the development or redevelopment of housing, public or community facilities, entered into by the Department of Housing and Urban Development (HUD) with respect to a Section 3 covered project shall contain conditions requiring the applicant or recipient to carry out the provisions of Section 3, the regulations set forth in this part, and any applicable rules and orders of the Department, prior to approval of an application for assistance for a Section 3 covered project. b. Every applicant, recipient, contracting party, contractor and subcontrator shall incorporate, or cause to be incorporated, in all contracts for work in connection with a Section 3 covered project, the following clause (referred to as a Section 3 clause): ATTAC!',I ,iENT A Section 3 Clause ~ °~ ) ) 1. The work to be performed under this contract is on a project assisted under a program providing direct Federal financial assistance from the Department of Housing and Urban Development and is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701U. Section 3 requires that to the greatest extent feasible opportunities for training and employment be given lower income residents of the project area and contracts for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in the area of the project. 2. The parties to this contract will comply with the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth in 24 CFR 135, and all applicable rules and orders of the Department of Housing and Urban Development issued thereunder prior to the execution of this contract. The parties to this contract certify and agree that they are under no contractual or other disability which would prevent them from complying with these requirements. 3. The contractor will send to each labor organization or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding, if any, a notice advising the said labor organization or worker's representative of his/her commitments under this Section 3 clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment or training. 4. The contractor will include this Section 3 clause in every subcontract for work in connection with the project and will, at the direction of the applicant for or recipient of Federal financial assistance, take appropriate action pursuant to the subcontract upon a finding that the subcontractor is in violation of regulations issued by the Secretary of Housing and Urban Development, 24 CFR, 135. The contractor will not subcontract with any subcontractor where he/she has notice or knowledge that the latter has been found in violation of regulations under 24 CFR, 135 and will not let any subcontract unless the 'subcontractor has first provided it with a preliminary statement of ability to comply with the requirements of these regulations. 5. Compliance with the provisions of Section 3, the regulations set forth in 24 CFR, 135, and all applicable rules and orders of the Department of Housing and Urban Development issued thereunder prior to the execution of the contract, shall be a condition of the Federal financial assistance provided to the project, binding upon the applicant or recipient for such assistance, its successors, and assigns. Failure to fulfill these requirements shall subject the applicant or recipient, its contractors and subcontractors, its successors, and assigns to those sanctions specified by the grant or loan agreement or contract through which federal assistance is provided, and to such sanctions as are specified by 24 CFR 135. ATTABII)J!NT A EXHIBIT B SECTION 3 EMPLOYMENT AND CONTRACTING PLAN FOR~tAT Name of Contractor or Subcontractor: Services to be Provided: Contract Amount: The following work force is anticipated to be necessary to satisfactorily complete this work: NUMBER OF NUMBER OF TRADE/JOB EXISTING ANTICIPATED CLASSIFICATION WORK FORCE NEW HIRES Either A or B A. The proposed work will not require hiring additional personnel. In the event that such hiring is required, will recruit NAME OF FIRM from the following sources: Priority will be given to lower income residents from the South San Diego Bay area. B. anticipates that new hires will be NAME OF ~IRM required. Recruitment of new personnel will be done through the following sources: Priority will be given to lower income residents from the South San Diego Bay area. EXHIBIT B Con't has established the following Section 3 NAME OF fIRM goals: JOB # LOWER INCO~ SOUTH SAN CLASSIFICATION NEW HIRES DIEGO BAY RESIDENTS currently anticipates using the services of the NAME OF CONTRACTOR following small businesses located within San Diego County as subcontractors or material suppliers. DESCRIPTION NAME OF WORK OR MATERIALS CONTRACT AMOUNT agrees to undertake a good faith effort to NAME OF FIRM comply with all of the provisions of Section 3 of the Housing and Urban Development Act of 1968. SIGNED: NAME: TITLE: I? tlu.q CITY OF CHULA VISTA MINORITY AND WOrN BUSINESS ENTERPRISE CONSTRUCTION PROGRAM I. Objective To establish goals for the participation of minority business enterprises and women business enterprises in City of Chula Vista construction contracts and to establish a program for the achievement of the goals. II. Definitions 1. Minority group member - a person who is Black, Hispanic, Asian or Pacific Islander, or Native American. (a) Black - all persons descended from the original peoples of the Black racial groups of Africa. (b) Hispanic - all persons of Mexican, Puerto Rican, Cuban, Central or South American descent and Spanish culture. The Portuguese are excluded from the Hispanic category, and are to be classified according to their race. (c) Asian or Pacific Islander - all persons descended from any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. (d) Native American all persons descended from any of the original peoples of North America. 2. Minority Business Enterprise (MBE) A United States business wherein the minority group members or stockholders have at least 50% ownership interest in the business and possess control over management, capital and earnings. If the business is publicly owned, the minority group members or stockholders must have at least 51% ownership interest in the business and possess control over management capital and earnings. 3. Women Business Enterprise (WBE) - A United States business wherein women members or stockholders have at least 50% ownership interest in the business and possess control over management, capital and earnings. If the business is publicly owned, the women members or stockholders must have at least 51% ownership interest in the business and possess control over management, capital and earnings. 4. Small Business Enterprise (SBE) A business which meets the definition of a minority business enterprise or women business enterprise, and in addition, meets the small business size standards of the Small Business Administration (Exhibit A). 5. Contractor - The individual, partnership, corporation, joint venture or other legal entity entering into a contract with the City of Chula Vista. 19 II 6. Subcontractor An individual partnership, corporation or other legal entity entering into a contract with the contractor to perform a portion of the work. III. Goal s The Minority and Women Business Enterprise Construction Program establishes the following goals: 1. A goal of 15% of the contract amount for the participation of minority business enterprises from South San Diego Bay area construction contracts. (a) 50% of the Minority Business Enterprises should qualify as small business enterprises. 2. A goal of 1% of the contract amount for the participation of women business enterprises from South San Diego Bay area in City of Chula Vista construction contracts. (a) 50% of the women business enterprises should qualify as small business enterprises. (b) A business owned by minority women will be counted towards fulfillment of the goal for the participation of women business enterprises and minority business enterprises. IV. Program The City shall require that contractors bidding on construction contracts abide by the provisions of the Minority and Women Business Enterprise Construction Program and make every effort to obtain minority and women business enterprise participation. Failure to provide the information referenced in various sections of this pro~ram will result in a determination by the City that the contractor is not a responsible bidder. It is the intention of the City to award construction contracts to ~ lowest responsible bidder who has achieved, or made a good faith effort to achieve, the goals for minority and women business enterprise participation. In order to address the goals for minority and women business enterprise construction participation, the contractor may award a portion(s) of the contract to bona fide minority or women-owned firms, equipment operators, brokers, and suppliers or prefabricators. A minority or women business enterprise will be considered bona fide if the minority or women group members' ownership interests are real and continuing, and not created solely to meet the City's goals for minority and women business enterprise construction participation. The minority or women business enterprise must perform work or provide services and/or supplies and not merely act as a passive conduit. Where a minority or women business enterprise acts as a broker or agent, only the commission or fee earned may be counted towards the contractor's goals. This commission or fee will not be counted if the minority or women business enterprise performs no substantive service. In the event the City has reason to question the ownership of a minority or women business enterprise, the burden of proof is on the claimant and/or contractor to provide documentation to substantiate the minority or women ownership of the business. The City will not automatically accept the determination of another agency in this matter. V. Joint Ventures Whenever a joint venture involves a business owned by minorities or women, the contractor shall provide the City with a full account of the nature of the minority or women ownership interest, the basis for the creation of the joint venture, and the particular financial participation and administrative responsibilities of the interested parties. Such joint venture, partnership or other multi-entity relationship shall ensure that the participating business owned by minorities or women has a comensurate share of the profit or loss to be realized from the joint venture. The joint venture, partnership or other multi-entity relationship shall be in writing. Joint ventures, partnerships or other multi-entity relationships must conform to the pertinent laws which govern the creation of such business arrangements. The City shall have the right to review same and determine if such arrangement is proper wi thin the requirements of the Minority and Women Business Enterprise Construction Program. The dollar amount of the joint venture, which is to apply towards the goals for minority or women participation, is calculated by the following formula: Joint % of Minority or $ of Joint Venture X Women Joint Venture = Venture Applicable Contract Financial Participation To Goals $ Amount VI. Bid Process Contractors shall notify minority and women contractor associations, and business development centers of their intention to solicit minority and women business enterprise participation at least two weeks prior to the bid opening. Such notification shall be by registered or certified mail. Contractors shall also seek out minority or women subcontractors by making positions and opportunities known to the news media servicing minority and women contractors and subcontractors. This outreach effort must be judged acceptable by the City. So as to afford minority and women suppliers and prefabricators an opportunity to participate in the work, contractors shall notify minority and women supplier associations or clearinghouses of their supply or prefabrication needs at least two weeks prior to the bid opening. Such notification shall be by registered or certified mail. 1. Bid Opening In addition to any other documents required by the bid specifications, the contractor shall submit the Contractor Questionnaire (Exhibit C) and the List of Subcontractors (Exhibit D). 2. Pre-award Meeting The apparent low bidder will be required to attend a pre-award meeting to determine compliance with the Minority and Women Business Enterprise Construction Program. The low bidder shall submit a complete list of subcontractors, suppliers, truckers, and owner/operators of equipment to be used on the project. This list should include name, address, telephone number, trade, contact person(s), and the total dollar amount of the subcontract. The contractor shall also indicate the businesses claiming to be owned by minorities or women. Minority or women business enterprises which have not been certified as such by the City shall submit a Schedule A Form, Minority and Women Business Enterprise Eligibility Questionnaire and/or Joint Venture (Exhibit £). Minority or women business enterprises entering into a joint venture with another business shall also submit a Schedule A Form. Prior to the pre-award meeting, the contractor and subcontractor are required to submit the Section 3 Employment and Contracting Plan Format (Exhibit B). 3. Pre-construction Meeting - Upon request, the contractor shall provide a copy of all subcontractor agreements or other verification of the total amount to be paid to each subcontractor. VII. Evaluation If the contractor has not achieved the goals for minority and women business enterprise participation, the City shall determine whether the contractor made a good faith effort to achieve the goals. This determination will be done by reviewing the documentation submitted by the contractor. Good faith documentation submitted by the contractor shall, as a minimum, include the following: (a) Report of responses, proposals, and bids received from minority and women owned businesses. This report shall indicate the action taken by the contractor in response to the proposals and/or bids received from minority or women businesses and from joint ventures which include minority or women businesses. In cases where proposals and/or bids have been rejected by the contractor, the reason(s) for rejection shall be indicated. (b) Documented contacts with minority and women owned firms, minority and women contractors" associations, minority and women business development centers, or any other related agency which disseminates bid information to minority and women business enterprises~ (c) Copy of registered or certified letters sent to groups in (b) notifying them of the contractor's intent to solicit minority and women business enterprise participation. (d) Description of assistance provided to minority and women owned firms relative to obtaining plans and specifications, reviewing sub-bid requirements, and referrals for bonding requirements. (e) Documentation of efforts undertaken to encourage subcontractors to obtain minority and women business enterprise participation. {f) Documentation of methods used in soliciting bids from minority and women subcontractors or suppliers such as, but not limited to, advertisements in the Daily Construction Service, minority and women trade association publications, local minority newspapers, or other applicable daily or weekly newspapers or trade journals or other media. (g) Documented contacts with minority and women brokers or agents and minority and women owner/operators of equipment. {h) Documentation of any other effort undertaken by the contractor to encourage minority and women business enterprise participation. VIII.Protest Procedure - Appeal Procedure In the event a determination is made that the apparent low bidder has not made a good faith effort to achieve the minority and women business enterprise participation goals, said party shall have the right to protest such determination before the City Council. The City shall notify said party by certified or registered mail of the date when the City Council will consider the rejection of the bid of the apparent low bidder and also hear and consider the protest. If the Council sustains the detemination that a good faith effort was not made, the Council shall award the contract to the lowest responsible bidder. IX. Program Review The Minority and Women Business Enterprise Construction Program will be periodically reviewed by the City Manaqer. Changes in the program which are required to effectively administer the program may be made by the City Manager. EXHIBIT C CITY OF CHULA VISTA CONTRACTOR QUESTIONNAIRE Date: Phone: ;IRM NAME ~TREET ADDRESS CITY STATE ZIP ~AILING ADDRESS CIIY STATE ZIP tYPE OF ORGANIT~ATION ~heck Individual Name of Owner Corporation State of Incorporation Partnership (Indicate [Gl General, [L] Limited) Name of Partners Joint Venture Joint Venture Participants .ocal Address OWNERSHIP INTEREST Asian or Black Hispanic Native American Pacific Islander Caucasian Women Assets )wried OINT VENTURE COMPOSITION Minority Non-Minority Women Number Percentage COMPOSITION OF EMPLOYEES Asian or Black Hispanic Native American Pacific Islander Caucasian Women lumber of Total imployment t Bidders' .ddress FOR CITY USE ONLY (LEAVE BLANK) ~xplain whether current work force is racially proportionate to the area from which the (ork force is drawn (National, State, or Local). IPC 1347E EXHIBIT D ~ITY OF CHULA VISTA LIST OF SUBCONTRACTORS MINORITY OR WOMEN OWNED FIRM FRADE NAME OF SUBCONTRACTORS ADDRESS & PHONE NO. YES NO MINORITY AND WOMEN SUPPLIERS ~AME OF SUPPLIER ADDRESS AND PHONE NO. · C 1333E EXHIBIT E CITY OF CHULA VISTA SCHEDULE A MINORITY AND WOrN BUSINESS ENTERPRISE ELIGIBILITY OUESTIONNAIRE AND/OR JOINT VENTURES 1. Name of firm 2. Address of finn City State Zip Code 3. Phone Number of finn 4. Indicate whether finn is sole proprietorship, partnership, joint venture, corporation or other business entity (please specify). 5. Nature of finn's business 6. Year(s) finn has been in business under present ownership 7. Ownership of firm: Identify those who control 5 percent or more of the firm's ownership. Columns E and F should be filled out only if the finn is less than lO0 percent minority owned. A B C D E F NAME RACE SEX YEARS OF OWNERSHIP VOTING OWNERSHIP PERCENTAGEPERCENTAGF With finns of less than 100 percent minority or women ownership, list the contributions of money, equipment, real estate, or expertise of each of the owners. MONEY EQUIPMENT REAL ESTATE EXPERTISF Schedule A (cont) 8. Control of firm: (a) identify by name, 'race, sex, and title 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: (1) Financial decisions (2) Management decisions, such as: a. Estimating b. Marketing and sales c. Hiring and firing of management personnel d. Purchases of major items or supplies (3) Supervision of field operations 9. For each person listed in answers to question 8, provide a brief summary of the person's experience and number of years with the firm. Indicate the person's qualifications for the responsibilities given him or her. 10. 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 minority or women owners. ll. Identify any owner (see item 7) or management official (see item 8) of the firm who is or has been an employee of another firm that has 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 each firm having some the same owners. 12. What are the gross receipts of the firm for each of the last two years? Year ending $ Year ending $ Schedule A (cont) 13. Name of bonding company, if any: Bonding limit Source of letters of credit, if any 14. Do you have authority to do business in the state as well as locally, and do you have all necessary business licenses? 15. Indicate if this firm or other firms with any of the same officers have previously received or been denied certification or participation as an MBE or WBE and describe the circumstances. Indicate the name of the certifying authority and the date of such certification or denial. (Attach additional sheets, if necessary. ) Affi davit "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 the ownership thereof. Furthermore the undersigned agrees to provide through the prime contractor or directly to the City, current, complete and accurate information regarding actual work performed on the project, the payment therefor and any proposed changes, if any, of the foregoing arrangements and to permit the audit and examination of books, records and files of the firm. The undersigned understands that any material misrepresentation will be grounds for termination by the City of any contract which may be awarded and for initiation by the City or by HUD of action under Federal or State laws concerning fal se statements." NOTE: If, after filing this Schedule A 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 directly or through the prime contractor. Si gnature Name Ti tl e Date State of County of Attach appropriate notary. WPC 1332E - o~m Attachment O 9. Contracting with Small and Minority Firms, Women's Business Enterprise and Labor Surplus Area Firms a. It is national policy to award a fair share of eontraets to small and minority business firms. Accordingly, affirmative steps must be taken to assure that small and minority businesses are utilized when possible as sources of supplies, equipment, construction and services. Affirmative steps shall include the following: (1') Including qualified small and minority businesses on solicitation lists. (2) Assuring that small and minority businesses are solicited whenever they are potential sources. (3) When economically feasible, dividing total requirements into smaller tasks or quantities so as to permit maximum small and minority business participation. (4) Where the requirement permits, establishing delivery schedules which will encourage participation by small and minority business. (5) Using the services and assistance of the Small Business Administration, the Office of Minority Business Enterprise of the Department of Corrmeree and the'Corrmunity Services Administration as required. (.~) If any subcontracts are to be let, requiring the prime contractor to take the affirmative steps in I 'through 5 above. b. Grantees shall take similar appropriate affirmative action in support of women's business enterprises. _ ~- c. Grantees are encouraged to procure goods and services from labor surplus areas. d. Grantor agencies may impose additional regulations and requirements in the foregoing areas only to the extent specifically mandated by statute or presidential direction. 10. Selection procedures a. All procurement transactions, regardless of whether by sealed bids or by negotiation and without regard to dollar value, shall be conducted in a manner that provides maximum open and 5 3/82 Fednral Re~ister / Vol. 48. No. 186 / Friday, September 23, 1983 / Rules and Regulations 43571 [3) If the owner or occupant of a will be provided in the grant agreement lb] Section 302 of the Lead-Baaed roperty disagrees with the recipient's executed by the grantee. Poisoning Prevention Act (42 U.S.C. etermination that the Uniform Act and 4822) directs the S~cretary to establish ..gulations at 24 CFR Part 42 do not o99o~t~nlfle~, practicable the hazards of lead-based pply to the acquisition of the property (a) Grantees shall comply with paint poisoning with respect to any r to a displacement resulting from the Executive On!er 11246 and the existing housing which may present cquisition` he/she may fil~ an appeal regulations issued pursuant thereto (41 hazards and which is covered by an nder 24 CFR Part 42 Subpert J CFR Chapter 60) which provides that no application for mortgage insurance or ~,ppeals), -,vhether or not the person shall be discriminated against on housing assistance payments under a cqu/sitiun or displacement occurs the basis of race, color, religion, sex, or program administered by the Secretary. afore or after submission of the national origin in all phases of Pursuant to such authority and the pplicatiun for financial assistance {or employment during the performance of Secretary's general mlemaking hal statement}, The specific payments Federal or federally assisted authority, the Secretary has promulgated nd other assistance for which an construction contracts. As specified in requirements regarding the elimination ppesl may be filed are set forth in 24 Executive Orde'r 11246 and the of lead-based paint hazards in HUD-' iI-'R 42.703{a). implementinl~ regulations, contractors associated housing at 24 CFR Part 35, (4} The costs of relocation payments and subcontractors on Federal or Subpart C, and requirements regarding nd assistance trader Title I1 of the federally assisted construction contracts notification to purchasers and tenants of !nifcrm Act shah he pa d f, om funds shall take affirmative action to insure HUD-associated housing constructed rovided by tiffs Part and/or such other fair treatment in employment, prior to 195.9 at 24 CFR Part 35. Subpart ands aa may be available by the upgrading, demotion or transfer, A. The requirements of 24 CFR Part 35. ~culity from any source, recruitment or recruitment advertising, Subpart A, are applicable to purchasers (b} Pursuant to section 105(a){ll) of layoff or termination, rates of pay, or and tenants of residential structures he Act. the grantee may also provide other forms of compensation and constructed prior to 1950 and assisted elocation payments and assistance for selection for training and under this Part, and the requirements of ndividuals, families, businesses, apprenticeship. 24 CFR Part 35. Subpart C, are ionprofit organizations and farm lb) Section 3 of the ttousing and ~perations d:sptsced by an activity that Urban Development Act of'1968 (12 applicable to existing residential structures which are rehabilitated with s not subiect to the Uniform Act, and U.S.C. l?01u) requires, in connection dso may provide reincatiun payments with the planning and carrying out of assistance provided under this Part. ind ether assistance at levels above any project assisted under the Act, that § $?o.6og Use of deba~rmt, suspandecl, or %t. Unless such payments and opportunities for training and CDBG funds shall not be used directly ocal law, the recipient shall make such persons residing within the unit of local to, or otherwise engage the services of. )ayments only upon the basis of a government or the metropolitan area (or or fund any contractor or subrecipient ~vritten determination that such nonmet~ opolitan county} in which the during any period of debarment, ~ayments are appropriate (see project is located, and that contracts for suspension, or placement in ineligibility i 570.201(i}) and shall adopt a written work in connection.with the project be status under the provisions of 24 CFR mlicy available to the public setting awarded to eligible business concerns Part 24. 'orth the relocation payments and which are located in, or owned in tssi~tance it elects to provide and substantial part by persons residing in § 57o.610 Uniform sdmlnlatraflve ~-os4din8 for equal payments and the same metropolitan area Car requirements aM cost principles. assistance within each class of nonmetropolitan county} as the project. The recipient, its agencies or Grantees shall adopt appropriate instrumentalities, and subrecipients lisplacees, procedures end requirements to assure shall comply with the policies. (c) Section 305 of the Uniform Act (42 good faith efforts toward compliance guidelines, and requirements of OMB JiS.C. 4655} provides that the head of · with the statutory directive. HUD Circular Nos. A-102. Revised. A-Il0. A- ?ederal agency shall not approve any regulations at 24 CFR Part 135 are not 87, and A-199. as applicable, as they ~ State agency under which Federal under this Part but may be referred to as Federal funds under this Fart. [inancial assistance will be available to guidance indicative of the Secretary's pay all or part of the cost of any view 6f the statutory obie~tives in other § 570.611 Conflict of Interest. program or project which will result in contexts. {a) Applicability. ~he acquisition of real property unless (1) In the procurement of supplies,. he/she receives satisfactory assurances § sTo.aoa Lead-bas~ pa)nt equipment, construction, and services Irom such State agency that: (1) In (a) Section 401(b) of the Lead-Based by recipients, and by subrecipients acquiring real property ii w/Ii be guided. Paint Poisoning Prevention Act (42 (including those specified st tn th~ grestest extent precticsble under U.S.C. 4831(b)) directs the Secretary to § 570.204(c)), the conflict of'interest St&t~ law, by the land acquisition prohibit ~ use of lead-based paint in provisions in Attachment O of OMB policies in section 301 of the Uniform residential structures constructed or Circulars A-lOP. and A-Il0, Act [42 U.S.C. 4651) and the provisions rehabilitated with Federal assistance in respectively, shall apply. of section 302 thereof (42 U.S.C. 4651) any form. Such prohibitions are (21 In all cases not guvemed by and (2) property owners will be paid or contained in 24 CFR part 35. Subpart B. Attachment O of the OMB Circulars. the reimbursed for necessary expenses as and are applicable to residential provisions of this section shall apply. specified in sections 303 and 304 of the structures constructed or rehabilitated Such cases include the acquisition and Uniform Act [42 U.S.C. 4653, 4C-~J. with assistance provided under.this disposition of real property end the Appropriate assurances to such effect Part. provision of assistance by the recipient. July 31, 1985 TO: The Honorable Mayor and Members of the City Council VIA: Oohn Goss, City Manager Desrochers, Community Development Director~ FROM: Paul G. SUBJECT: Minority Business Enterprise/Women Business Enterprise/Section 3 Plan for Community Development Block Grant Funded Projects At your meeting of July 23, 1985, you considered the adoption of a Minority Business Enterprise (MBE)/Women Business Enterprise (WBE)/Section 3 Plan for Community Development Block Grant (CDBG) funded projects. You continued this item to allow staff time to obtain additional information. Prior City Experience with MBE/WBE Plans: The Council approved the San Diego County Region's MBE/WBE Program for projects funded with Federal Transportation funds on May 18, 1982, per the regulations of the U. S. Department of Transportation (DOT). The established goals for the program are currently 10% MBE and 1% WBE, although these may be changed by CalTrans on September 30, 1985, to 13% MBE and 3% WBE. No Federal transportation-funded contracts subject to the adopted plan have been let to date. However, the City will be using these funds to make street improvements on Broadway during this fiscal year and will have to follow the MBE/WBE requirements adopted by the Council. In 1977, the City used federal Economic Development Administration (EDA) funds to construct storm drainage systems at 6 locations under more stringent MBE requirements than the proposed block grant plan, requirements which constituted a quota. EDA required contractors to spend at !east 1~% of.the contract amount for MBEs. Contractors were required to submit certifications prior to construction regarding the designation of MBEs and Equal Employment Opportunity. Actual MBE participation beyond the 10% requirement was not monitored. ~ Additional Information on Other Jurisdictions: County: 15% overall MBE/WBE - Goal 17% - MBE 4% WBE - Accomplishment San Diego: 15% MBE 5% WBE - Goal - Accomplishment The City of San Diego'adopted its MBE/WBE program in early 1985. The City has only constructed one project under the MBE/WBE requirements. Members of the City Council - 2 - July 31, 1985 Port District: Lindbergh Field: 6% MBE 1% WBE - Goal 25% MBE - Accomplishment Convention Center, Phase I: 15% MBE 3% WBE - Goal 21% MBE .1% WBE - Accomplishment Metropolitan Transit District Board {MTDB): 16% DBE 4% WBE - Goal 20% DBE 3.4% WBE - Accomplishment MTDB adopted its DBE/WBE program in early 1985. A Disadvantaged Business Enterprise {DBE) is a small business concern which is at least 51 percent owned by and whose management and daily business operations are controlled by one or more socially and economically disadvantaged individuals who are citizens of the United States. Socially and economically disadvantaged individuals are those individuals who are Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian-Indian Americans and any other minorities or individuals found to be disadvantaged by the Small Business Administration. Goals Versus Quotas: The proposed MBE/WBE plan sets goals for minority and women participation in construction contracts to be striven for by the City and by bidding contractors; it does not set quotas. The goal is a target to be pursued in good faith; a quota is a required accomplishment. The .City ~r the contractor would not be ~ to attain a percentage participation.. The City or the contractor wou~ be required to make good faith efforts to try to achieve these goals. Therefore, neither the City nor a bidding contractor would have to ignore cost or capability in selecting bids. The City could accept the lowest responsible bidder who had made good faith efforts to employ MBE/WBE subcontractors, even if the bidder were unsuccessful in getting MBE/WBE participation. The bidding contractor could reject bids from MBE/WBE subcontractors who were not competitive or responsible. What would have to be demonstrated would be efforts to attract competitive, responsible bids from MBE/WBE subs. Regardless of whether the next lowest responsible bidder had higher MBE/WBE participation than the lowest responsible bidder, the City could still accept the lowest bidder if good faith effort were evident. Quality, cost effectiveness, and open competition all would remain accomplishable. What would be required would be outreach to minority and women businesses. Ramifications of Not Adopting Goals: HUD representatives have directed us to adopt a plan setting MBE/WBE goals. They have interpreted the applicable regulations as requiring such goals. They have further instructed us not to award any Block Grant-funded construction contracts without goals. If a plan with goals is not adopted by the City and approved by HUD, or if, in lieu of a plan, goals are not included in any Block Grant contract, it can be anticipated that HUD would do the following: The Honorab'le Rayor and Members of the City Council 3 July 31, 1985 1. Require repayment to HUD of any contract amounts expended after the recent finding by HUD that we lacked the required goals (no expenditures to date). 2. Withhold all of our 1985 and future entitlement funds. If the Council chooses to adopt and submit to HUD a ~BE/WBE plan not containing goals, it is recommended that no Block Grant-funded CIP expenditures be made until resolution of the anticipated dispute. Projects which would have to be held include the following: - Woodlawn Avenue Storm Drain Project - Chula Vista Jr. High School Drainage System - Central Drainage Basin Channel - Harborside School Park - Telegraph Canyon Creek Flood Control Project Changes to Draft Plan: Attached are two amended pages of the MBE/WBE/Section 3 Plan, which have been changed in two sections as a result of further scrutiny. The first change is to Section I, Objective, where language was added to clarify that the Plan applies only to proj~ funded with Housing and Urban Development funds. The other change is to Section VIII, Protest Procedure and Appeal Procedure. The words "Appeal Procedure" were deleted and the reference to sending notices to protesting bidders by certified or registered mail was deleted. A sentence was added stating that the Council's determination of good faith by a bidder shall be conclusive, if supported by substantial evidence. This change was recommended by.the City Attorney's office to parallel the protest procedures for all City contract awards. WPC 1685H