Loading...
HomeMy WebLinkAbout01-31-11 Community & Economic Development ComA ~ ,,.,.~ v.; R. - .. .° nonnr~r Community and Economic Development Committee 2011 South Bend Common Council The January 31, 2011 meeting of the Community and Economic Development Committee of the South Bend Common Council was called to order by its Chairperson Council Member Timothy A. Rouse at 5:00 p.m. in the Council's Informal Meeting Room. Persons in attendance included Council Members Puzzello, Varner, Rouse, and Henry Davis, Jr.; Mayor Stephen J. Luecke, Public Works Director Gary Gilot, P.E., City Attorney Charles Leone, Mr. G. Lee Byers, Sr., Don Inks, Glenda Rae Hernandez, Colleen Boman, Dr. Marty Wolfson, Kimber Sorenson- Bireuh, Karl Nichols, Joseph Shabazz, Marvin A. Shabazz, Linda Wolfson, members of the news media and Kathleen Cekanski-Farrand, Council Attorney. Council Member Rouse noted that the Committee members include Council Members Henry Davis, Jr., Karen L. White, Ann Puzzello and himself, as Chairperson. Council Member Rouse noted that Council President Dieter contacted the Office of the City Clerk that he would be unable to attend today's Committee meeting; and that Council Member White also contacted the Clerk's Office. He noteded that Council Member White may be late or may be unable to attend today's meeting at all in light of an emergency at IU South Bend. Bill No. 86-10: Proposed Ordinance to Promote Employment and Contracting Diversity Council Member Rouse stated that a reformatted version of Bill No. 86-10 would be reviewed today, with copies being made available (copy attached) He thanked City Attorney Charles Leone and his staff for assisting in the reformatting of the proposed ordinance. Council Member Rouse announced that the primary focus for today's meeting would be for Mr. Byers to review the Bill and address any preliminary questions from the Council Members. The meeting will be limited to one hour. If time permits, input from the public may be possible. He then called upon the Council Attorney to address the Indiana law in this area. Council Attorney Cekanski-Farrand stated that the committee meeting is governed by the Indiana Open Door Law which requires among other things a minimum of 48-hour notice of the time, place and topic of the meeting; with such meeting notice being properly posted. She added that all such meetings must, under the Open Door Law, permit members of the public to observe and record; but does not require public participation.. Council Member Rouse then called upon G. Lee Byers, Sr. to review the proposed ordinance. Mr. Byers reviewed the working draft and highlighted each of the Articles highlighting proposed changes which included but were not limited to the following: Article 1. General Provisions Sec. 14.5-1 Legislative Findings ~ Would add ¶ (c), ¶ (d), ¶ (e), ¶ (f) Community and Economic Development Committee Meeting Minutes January 31, 2011 Page 2 Sec. 14.5-2 Definitions -> Would delete "Affirmative" and insert "Diversity" Action in ¶ (a) ---~ Would delete ¶ (i) Minority business enterprise, ¶ (j) Subcontractor, ¶ (k) Women business enterprise --> Would add ¶ (b) Affidavit of Business Diversity Utilization, ¶ (i) Diversity Compliance Officer, ¶ (j) Disadvantaged Business Enterprises, ¶ (1) Minority Business Enterprise, ¶ (m) Small business concern, ¶ (n) Socially and economically disadvantaged individuals, ¶ (o) Small local business enterprise, ¶ (p) Subcontractor, ¶ (q) Women Business Enterprise Council Member Rouse then opened the floor to Council Members for any preliminary questions. Council Member Henry Davis, Jr. inquired about the references to "diversity" and directed the question to the Council Attorney. Council Attorney Cekanski-Farrand noted the this was briefly discussed at prior committee meetings, noting that case authority and the Urban Institute articles provided background references for the requested change. She added that in reviewing regulations in other Indiana communities, that diversity was the term used throughout. Council Member Rouse noted that the local regulations were never designed to create quotas or set asides, but rather were goal, objective and inclusiveness oriented. Article 2. Diversity Action in Employment [deleting "Affirmative" and inserting "Diversity"] Sec. 14.5-3 Application of this Article Sec. 14.5-4 Diversity Action Procedures [deleting "Affirmative" and inserting "Diversity"J ~ Would include provisions on: • Recruitment • Hiring • Personnel Policies and Practices • Duties of Department Heads • Noncompliance Procedures Council Member Rouse then opened the floor to Council Members for any preliminary questions which they may have. Council Member Puzzello inquired about the definition of "Hispanic" on page 4. Glenda Rae Hernandez suggested that the Committee consider using "Latino" instead. Community and Economic Development Committee Meeting Minutes January 31, 2011 Page 3 Council Member Henry Davis, Jr. asked what "good faith" means as used in the ordinance. Mr. Byers noted that if one would do everything within reason and no contractor within a given category was found, that that would constitute a good faith effort. Council Member Henry Davis, Jr. noted that he wanted better clarity especially with regard to enforcement, and inquired whether a data base similar to one used in Indianapolis was anticipated. Council Member Rouse noted that the Council Attorney has provided information on programs in place in Evansville and Vanderburgh County, and in Indianapolis and Marion County; which is currently being reviewed. City Attorney Charles Leone stated that "good faith" is a term of art which is used in contracts. There is a responsibility to have real and substantiated efforts validated. The Council attorney agreed with Mr. Leone's comments. Council Member Rouse stated that by including good faith concepts plus a remedial component, that it would be consistent with the data from BB Consulting, noting that that document was over 400 pages. Council Member Rouse noted that the program utilized by the State of Indiana was evaluated and that suggestions were provided to further enhance the program in certain areas. Council Member Henry Davis, Jr. inquired whether there is "too much red tape" for developers as he listens to the concerns of the various developers throughout the city. Mr. Byers responded that the city is required to seek "responsible and responsive" prime contractors, with the proposed regulations being seen as developing good partnerships. He cited Zilkowski Construction and their positive results in working on the Kroc project. Council Member Rouse noted that the proposed regulations should enhance, especially for the local economy. Mr. Joseph Shabazz voiced concern about goals and a diversity study, to which Council Member Rouse would be addressed at a future time when more time would be made available for such discussion. He then asked Mr. Byers to continue reviewing the working draft of Bill No. 86-10. Mr. Byers noted that data was still being collected for the following Article and highlighted the following: Article 3. Diversity Action in Contracting [deleting "Affirmative" and inserting "Diversity"] Sec. 14.5-5 Application of this Article Sec. 14.5-6 Diversity Action Procedures [deleting "Affirmative" and inserting "Diversity"] ~ Would include provisions on: • Qualification Community and Economic Development Committee Meeting Minutes January 31, 2011 Page 4 • Contract Requirements • Certification • Procedure for Awarding Contracts • Establishment of Goals • Compliance Mechanisms • Noncompliance Procedures Sec. 14.5-7 Penalties --~ Would include provisions on: • Forfeiture of Performance Bond • Cancellation of Contract • Review of other City Contracts • Suspension • Legal Remedies Article 4. Diversity Action in Compliance Policy and Procedures -~ Would include the following provisions: Sec. 14.5-8 Conformity with Applicable Federal and State Laws of the Code of the City of South Bend Sec. 14.5-9 HUD "Section 3 Requirements" (24 C.F. R. Part 135) in the Provisions of Training Employment and Business Opportunities Sec. 14.5-10 Diversity Compliance Officer Sec. 14.5-11 Establishment of Goals Sec. 14.5 -12 Award of Contracts to WMBE Enterprises Sec. 14.5--13 Time Requirements and Procedure for Noncompliance Sec. 14.5-14 Third Party Complaints Council Member Rouse noted that in the few moments remaining, he would entertain some questions. Karl Nichols suggested that a more comprehensive definition of "Minority" than the one which appears on page 4. He noted that South Bend has a growing Burmese and Asian populations. Dr. Marty Wolfson inquired about the rationale of the proposed ordinance. Council Member Rouse stated that the existing program is proposed to be revised. He highlighted that the current ordinance was passed in 1987. It was sponsored by then 2°d District Council Member Eugenia Community and Economic Development Committee Meeting Minutes January 31, 201 l Page 5 Braboy and had many groups and organizations involved throughout the community. It began as Bill No. 103-87 and when passed by the South Bend Common Council by an 8-1 vote it became Ordinance No. 7811-87. Council Member Puzzello voted for that ordinance; the Council Attorney was present for the debate and passage; and then Council Member at Large John Voorde was the only person voting in opposition citing concerns over how it would be implemented. It is his hope that the revisions would help facilitate the overall intent of the law for certified disadvantaged business enterprises (DBEs) , minorirty business enterprises (MBEs) and women business enterprises (WBEs). Marvin Crayton suggested that the committee look at Indianapolis, noting that there would be benefits from being able to partner with the state. He further suggested that the process should be more consolidated. Council Member Rouse thanked everyone for their in~ut. He added that originally he had hoped to hold the next Committee meeting on Monday, February 7t . However, in light of that being Mayor Luecke's last State of the City Address at a special meeting of the South Bend Common Council, another date will be selected. There being no further business to come before the Committee, Council Member Rouse adjourned the Committee meeting at b:02 p.m. Respectfully sub fitted, ~ ~ ~ ~- Council Member othy A. Rouse, Chairperson Community a conomic Development Committee Attachment Working Draft of 01-31-11 Ordinance No. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 14.5 OF THE SOUTH BEND MUNICIPAL CODE TO PROMOTE EMPLOYMENT AND CONTRACTING DIVERSITY STATEMENT OF PURPOSE AND INTENT In 1987 South Bend enacted Chapter 14.5 of the South Bend Municipal Code, intended to equalize opportunity for Blacks, Hispanics and women in City employment and contracting. At this time participation of Blacks and Hispanics in City contracting continues to be significantly lower than for non-minorities. It is in the best interest of South Bend and its citizens to promote greater participation of minority contractors, subcontractors, and employees in City construction projects and in City service contracts. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA as follows: SECTION I. Article 1 of Chapter 14.5 of the South Bend Municipal Code is amended to read as follows; ARTICLE 1. GENERAL PROVISIONS Sec. 14.5-1. Legislative findings. (a) Based on information presented to it at public hearings, the South Bend Common Council hereby finds that there is a responsibility to provide for equal employment opportunity in all City of South Bend jobs and equal business opportunity in all City contracts without regard to race, sex or national origin. (b) The South Bend Common Council declares that the following diversity .,~~v~ action procedures are established for the purpose of facilitating equal opportunity, prohibiting discrimination against minorities and women, and remedying instances of underrepresentation of minorities and women in certain aspects of City employment and contracting. (c) Private corporations, firms, or persons receiving tax abatement or tax credit development incentives from the City shall award their construction and purchase contracts consistent with the objectives set forth in this section. ~d) The City of South Bend's procurement process will include lan uage in all solicitations that utilize local tax systems or mixed financing (inclusive of municipal bonds), as a funding_mechanisms, that: (1) Give priority to local contractors that have Diversit~Utilization Programs that demonstrate compliance with this ordinance. (2) Local Contractors biddin on City work must submit competitive bids consistent with fair market value estimates. If local bids exceed the estimated fair market value for solicited goods or services (by more than 10% of the fair market value) the City of South Bend Common Council may waive the requirements of this ordinance. (3) To qualify for this preference Small Local Business Enterprises (SLBE) must have an Approved Diversity Utilization Action Plan. SLBE must commit to becoming si natory to Project Labor Agreements that commit to local contracting and labor utilization plans for all construction projects over $2,000,000 dollars. If local bids exceed the estimated fair market value for solicited goods or services (by more than 10% of the fair market value) or parties to the Project Labor Agreement refuse to accept reasonable proposals the City of South Bend Common Council may waive the requirements of this ordinance that pertains to Project Labor Agreements . (e) All of the City's construction projects Request for Proposal for professional, Architect & En ing eering`Construction Management or General Contractors, services will be required to include languag` in the City's solicitation that requires the above contractors to demonstrate the effectiveness of their Diversity Utilization Plan. The City recognizes that professional service contract providers are often the most important part of a successfully enforced Diversity Utilization Pro rg am• (f) The City of South Bend understands that pro rams promoting the utilization of local business and local labor ensure reciprocal economic growth within the local region. This activity creates local jobs and expands (income, property and corporate) tax revenues. Sec. 14.5-2. Definitions. As used in this chapter, the following terms shall have the meanings ascribed to them in this section: (a) ~~~~e-Diversi action means the official program or policy of the City of South Bend as set forth in this chapter and as promulgated pursuant to the directives of this chapter which gives preferential treatment to one or more groups of people who are classified according to race, sex or national origin. (b) ~idavit of Business Diversity Utilization that identifies minority, women and disadvantage business enterprise contractors. The affidavit must state the ~ercentag~e of the diversity contractor's participation and the dollar value of their sub-contract award. The Contractors'must demonstrate good faith efforts to achieve the diversitYgoals of 10% minority subcontract award, 5% women subcontract award and 2% Disadvantaged Business subcontract award. (b~(c) Bidder means any person, partnership, corporation, association or joint venture seeking to be awarded a City contract. ~} City means the City of South Bend, Indiana. (d-} City contract means any contract awarded by the City of South Bend or any of its agencies, boards or commissions for work, labor, services, suppliers, equipment, materials or any combination of the foregoing; the term specifically includes but shall not be limited to any purchase or lease of materials pursuant to IC 36-1-9.5, any public work project authorized pursuant to IC 36-1-12-4, or other contract in which public bids are not required by law. ~ ~f Contracting agency means the City department, agency, board or commission having the power to award a City contract. (I} ~ Contractor means any person, partnership, corporation, association or joint venture which has been awarded a City contract. (g3 ~ Discriminatory practice means the exclusion of a person or persons from equal employment opportunity or equal business opportunity because of race, sex or national origin. ' (i)"Diversity Compliance Off cer" means the person desi nag ted by the Major, City Common Council or Public Works Director to administer this chapter. The Diversity Compliance Officer shall also serve as the City's "DBE Liaison Officer" and shall perform the duties of such office as described in 49 CFR Section 23.45. (j~,"Disadvantaged Business Enterprises," (hereinafter referred to as "DBE") means a small business concern and "Women/Minority Business Enterprise" (hereinafter referred to as "WMBE" means any minority-owned business which has been certified under the requirements of this chapter. (1) Which is at least fi -one percent 51 %) owned by one or more sociallyy and economically disadvantaged individuals, or, in the case of andpublicly owned business at least fifty-one percent 51 %) of the stock of which is owned by one or more socially and economically disadvantaged 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. (3) Business enterprises with 'at least fift~one percent 51%) owned by one or more minority or one or more women, in the case of andpublicly owned business at least fifty-one percent (51°foZof the stock of which_is owned by minority_ or women. 3 (#) ,(I~Minority means any person who is: 1. Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); or 2. Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race). (k) no+-*:~na • r+~ar 4~,e « rr,en4c~ ~f 4~in n{~nr~tnr- (1 "Minority Business Enterprise," (hereinafter referred to as "MBE") means a business concern and "Minority Business Enterprise" (hereinafter referred to as "MBE" means any minority-owned business which has been certified under the requirements of this chapter. ,~) Which is at least fift~ne percent (51 % owned by one or more minority individuals or in the case of any publicly owned business, at least fift -one percent (51 %) of the stock of which is owned by one or more minority individuals; and (b) Whose management and daily business operations are controlled by one or more of the minority individuals who own it. ml "Small business concern" means a small business as defined 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 cross receipts in excess of $1.5 million over the previous three fiscal • ey ars. (n "Socially and economically disadvantaged individuals" (hereinafter referred to as "disadvantaged individuals"~ means those individuals who are citizens of the United States or lawfully admitted permanent residents, and who are women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans or Asian-Indian Americans and any other minorities_ or individuals found to be disadvanta eg d by the Small Business Administration pursuant to Section 3 and Section 8(a) of the Small Business Act. (o) "Small local business enterprise" or "SLBE" means a business enterprise having its 4 principal office in South Bend-Mishawaka Area or located within a 35 mile radius of the City. SLBE will be granted bidding~preference on all constructions contracts as long as they are consider by the City to be in full compliance of the CitX's Affirmative Action Articles as they apply to W/MBE Contracting and minority and women employ guidelines. SLBE must be register in the City as a formal business entity and meet the following, standards: (1) Local Business with annual revenues of $3 million or less. (2) Less than 100 employees (3) Local Contracting License (p) Subcontractor means andperson, partnership, corporation, association or joint venture which supplies an~of the work, labor; services, supplies, equipment, materials or any combination of the fore oing~under a contract with the contractor on a City contract. ~q) "Women Business Enterrise," hereinafter referred to as "WBE") means a business concern and "Women Business Enterprise'.' (hereinafter referred to as "WBE" means any minority-owned business which has been certified under the requirements of this chapter. (1) Which is at least fifty-one percent 51% owned by one or more minority individuals, or, in the case of andpublicly owned business, at least fifty-one percent (51 %) of the stock of which is owned by one or more minority individuals; and (2) Whose management and daily business operations are controlled by one or more of the minorityindividuals who own it. SECTION II. Article 2 of Chapter 14.5 of the South Bend Municipal Code is amended to read as follows; ARTICLE 2. DIVERSITY ACTION IN EMPLOYMENT Sec. 14.5-3. Application of this article. This article shall apply to all City departments, agencies, boards and commissions. Sec. 14.5-4. t1~€ii~t~i~e Diversi action procedures. (a) Recruitment. Each department, agency, board or commission of the City involved in recruitment of employees shall: (1) Analyze current recruiting methods and revise those methods which reflect any discriminatory practice; (2) Actively recruit qualified minorities and women for available positions within the department, agency, board or commission; and (3) Review and update its recruiting methods annually to insure the methods do not reflect any discriminatory practice. (b) Hiring. Each department, agency, board or commission of the City involved in hiring employees shall: (1) Review hiring decisions of the last five (5) years and revise those hiring procedures which reflect any discriminatory practice; (2) If necessary, set remedial goals for hiring qualified minorities and women within each job category of the department, agency, board or commission in order to measure its progress in eliminating any underrepresentation of minorities and women, as follows: a. Jobs which do not require special skills. The goals for job categories which do not require special skills shall be in proportion to the overall percentage of minorities and women within the area work force; , b. Jobs which require special skills. ~ The goals for job categories which require special skills shall be in proportion to the overall percentage of minorities and women within the area work force who have the educational and experience requirements for the job category; and (3) Review and reevaluate its hiring procedures, decisions and goals annually by January 31 in order to insure that they do not reflect any discriminatory practice and in order to measure its progress in eliminating any underrepresentation of minorities and women, as follows: a. ~ Review hiring decisions of the year and revise those hiring procedures which reflect any discriminatory practice; b. Review hiring decisions in light of the remedial goals established for the year and report progress in eliminating the underrepresentation of minorities and women or lack thereof to the Mayor, including any reasons why despite good faith efforts the department, agency, board or commission was unable to meet its goals for the year; c. Reevaluate remedial goals established for each job category to insure that the goals are realistic in relation to the number of qualified minorities and women in the area work force and to insure that the goals are being used as guidelines rather than as quotas which must be met; and 6 d. Discontinue the remedial goal for a particular job category when the underrepresentation of minorities and women is eliminated in that category. (c) .Personnel policies and practices. Each department, agency, board or commission of the City shall: (1) Review all employment policies and`revise those policies which reflect any discriminatory practice; (2) Review personnel actions of the past five years, including but not limited to actions related to employee promotions, raises, benefits, transfers, layoffs, returns from layoffs, and training or educational programs, and revise those personnel procedures which reflect any discriminatory practice; and (3) Actively encourage the promotion of minorities and women to positions for which they are qualified. (d) Duties of department heads. The head of each department shall: (1) Determine in conjunction with the City Personnel Coordinator which job categories in the department require special skills; (2) Implement Diversity action policies in recruitment, hiring and employment within the department by communicating policies internally and developing programs to achieve Diversity action objectives; (3) Direct an initial review of all departmental policies and procedures and provide for the revision of those policies and procedures which reflect any discriminatory practice; (4) Attempt to resolve internally disputes which arise within the department regarding Diversity action procedures; (5) Direct a departmental review of recruitment, hiring and employment procedures and goals annually in order to monitor program effectiveness and to determine where progress has been made and where further action is needed; and (6) Report all pertinent ~r~~~ diversity action data and progress including but not limited to departmental procedures regarding ~~~ diversity action, goals established by the department, information regarding the employment of minorities and women by the department, pertinent personnel actions of the department as well as anticipated future action, to the Mayor annually by January 31. (e) Noncompliance procedures. In the event of a dispute over noncompliance with any of the provisions of this article every effort will be made to resolve disputes within the City. Ideally, disputes should be resolved internally within each department, agency, board or commission. In the event a dispute cannot be resolved internally: (1) A City employee should file a complaint with the Personnel Coordinator; (2) An applicant should notify the Personnel Coordinator of the problem in an effort to resolve the dispute; and (3) A City employee or applicant shall also have all rights available under Chapter 2, Article 9 of this Code, entitled "Human Rights Ordinance." (f) Nothing in this article shall be construed or implemented to permit preferential protection against layoffs to any employee because of that employee's race, sex, or national origin. SECTION III. Article 3 of Chapter 14.Sof the South Bend Municipal Code is amended in its entirety to read as follows; ARTICLE 3. DIVERSITY ACTION IN CONTRACTING Sec. 14.5-5. Application of this article. This article shall apply to all bidders and contractors for all City contracts. Sec. 14.5-6. t1-~~ Diversi action. procedures. (a) Qualiftcation. Each bidder under a City contract must be qualified in order to be considered a responsible and responsive bidder pursuant to IC 36-1-9.5-19 and IC 36-1-12-1 et seq. In this regard the city and its contractors are required to comply with both the letter and spirit of this chapter Section 3 requirements outlined in 24 C.F.R. Part 135, Title VI of the Civil Rights Act of 1964 Executive Order 11625, October 13, 1971, Executive Order 11246 and other laws applicable to providing contracting opportunities to Disadvantaged Business Enterprises and Minority Business Enterprises. (1) Requirements. The requirements for qualification are as follows: a. Nondiscrimination. The bidder shall not discriminate on the basis of race, religion, color, sex, handicap, national origin or ancestry. The bidder must submit a nondiscrimination affidavit, in the form set forth in subsection (b) below, along with its bid. b. ~~~~e Diversi action. The bidder must have adopted and maintain in effect at all applicable times a diversity action plan. The bidder must submit its plan and a diversity action affidavit, in the form set forth in subsection (b) below, to the contracting agency prior to or along with its bid. The diversity action plan must: i. Provide for the recruitment, hiring and employment of minorities and women; 8 ii. Contain appropriate specific goals and timetables for the recruitment, hiring and employment of minorities and women, which shall be determined in the same manner as in section 14.5-4(b); and iii. Be reviewed, updated, and submitted to each applicable City contracting agency annually. iv. All contractors and sub-contractors on City contractingprojects must submit with their bid an affidavit of Business Diversity Utilization that includes the amount of minoritycontracting opportunity to be awarded to minority contractors. Contractors must have demonstrative proof of their good faith effort to achieve the diversityparticipation goals The bidder may submit its plan to the Mayor's designee for review in advance to determine if the plan meets the requirements of this article. The bidder may file its diversity action plan with the contracting agency prior to submitting a bid to that contracting agency. The plan will remain on file for one year. (2) Denial of qualifrcation. In the event the Mayor's designee or the contracting agency determines that a bidder is not qualified with respect to either of the requirements set forth in subsection (1) above, the Mayor's designee or the contracting agency making the determination shall make written findings of the reasons for that decision. The aggrieved bidder may appeal the findings to the Mayor for reconsideration. The Mayor may appoint a person to make an independent review and recommendation to the Mayor. The Mayor's decision shall be final for purposes of judicial review. (b) Contract Requirements. Each bidder must submit the following written commitments with its bid to be included in the City contract if its bid is selected. Failure of the bidder to submit the written commitments with its bid may result in the bidder's being nonresponsive. (1) Nondiscrimination commitment. The contractor and each of its subcontractors agree not to discriminate against any employee or applicant for employment in the performance of this contract with respect to hire, tenure, terms, conditions or privileges of employment, or any matter directly or indirectly related to employment, because of race, religion, color, sex, handicap, national origin or ancestry. Breach of this provision may be regarded as a material breach of the contract. (2) ~~~~ Diversi action affidavit. The contractor has adopted and will maintain in full force and effect for one year from the date of the affidavit, an ~€iat~e diversit action plan for the recruitment, hiring and employment of minorities and women. Contractor certifies that it strongly seeks the use of minority-owned businesses and women-owned businesses in its operations. Contractors' bids must include an affidavit of Business Diversity Utilization that identifies minority, women and disadvantage business enterprise contractors. The affidavit must state the percentage of the diversity contractor's participation and the dollar value of their sub-contract award. The Contractors'must demonstrate good faith efforts to achieve the diversity oals of 10% minority subcontract award, 5% women subcontract award and 2% Disadvantaged Business subcontract award. (c) Certification. A minority-owned or women-owned business who desires to submit a bid or quote on a City contract is eligible to be certified as a minority business enterprise or a women business enterprise. Such certification may be an additional factor to be considered by the contracting agency in determining the lowest responsible and responsive bidder or quoter pursuant to IC 36-1-9-1 et seq., IC 36-1-9.5-8 et seq., IC 36-1-12-1 et seq., and other public bidding and quoting circumstances. (1) Requirements. The requirements for certification are as follows: a. Ownership and control. In order to be certified the ownership and control of a business must be as follows: i. Minorities or women must own and control at least fifty-one (51) percent of the business. The ownership must be continual and must be evidenced in documents of the business; ii. The minority or women owners must direct or have the power to direct the management and policies of the business and make day-to-day decisions on matters of management, policy and operations; iii. The minority or women owners must be responsible for a clearly defined portion of the City contract to be performed; and iv. Newly formed businesses or businesses whose ownership or control has changed recently will be reviewed carefully to determine reasons for the timing of the formation or change in ownership or control; b. Independent business. The minority-owned or women-owned business must be an independent business. Relationships with other businesses will be reviewed carefully to determine if any interest conflicts with certification requirements; and c. Application for certifrcation. Each business seeking to be certified must complete an application for certification as a minority business enterprise/women business enterprise as follows: i. The application for certification must be completed and submitted to the contracting agency prior to or along with its bid. The application must be signed by the authorized representative of the business and notarized; 10 ii. Certification by the contracting agency must occur prior to the award of the City contract in order for the business to be considered certified for a particular bid. Denial of certification by the contracting agency will be final for that City contract or any other contracts being let by the City at the time of denial of certification. A business denied certification may correct all deficiencies and submit a new application for certification prior to or along with a later bid; and iii. All certified businesses must update their application annually by certifying that the previously submitted application on file is still accurate or by updating any specific changes in information. Whenever there is a change in ownership or control of the business, a new application must be filed, and the business will not be considered certified until the new application is considered and certification is authorized based on that new application. (2) Denial of certifrcation. In the event the contracting agency denies a bidder's application for certification it shall make written findings of the reasons for that decision. The aggrieved bidder may appeal the findings to the Mayor for reconsideration. The Mayor may appoint a person to make an independent review and recommendation to the Mayor. The Mayor's determination shall be final for purposes of judicial review. (d) Procedure for Awarding Contracts. (1) The contracting agency will review and evaluate each bid submitted to insure that each bidder is qualified as a responsible and responsive bidder and has met all contract requirements. (2) The contracting agency will also review whether the bidder is certified as a minority business enterprise or a women business enterprise. (3) If the contracting agency has set a remedial goal for awarding contracts to minority business enterprises or women business enterprises within the business category involved in the contract, certification of a bidder as a minority business enterprise or a women business enterprise shall be considered as an additional positive factor in determining the lowest responsible and responsive bidder on the City contract. (4) The contracting agency shall take certification as a minority business enterprise or women business enterprise into consideration as an additional positive factor in determining the lowest responsible and responsive quoter on City contracts which are not required by law to be bid when the contract involves a business category for which the contracting agency has set remedial goals for awarding contracts to minority business enterprises or women business enterprises. (e) Establishment of Goals. Each contracting agency shall: (1) Review contracting decisions of the last five (5) years and revise those contract award procedures which reflect any discriminatory practice; (2) Evaluate contracting awards of the last five (5) years in order to determine the dollar volume of City contracts awarded in each business category per year; (3) If necessary, set remedial goals for awarding its dollar volume of City contracts within each business category to minority business enterprises and women business enterprises in proportion to the percentage of qualified minority-owned and women- owned businesses in the community; (4) In establishing business categories for the establishment of remedial goals, to the greatest extent possible, use major groups of the Standard Industrial Classification Manual, published by the United States Office of Management and Budget, which manual is hereby incorporated by reference and a copy of which is available in the office of the City Clerk; and (5) Review and reevaluate its contract award procedures, decisions and goals annually in order to insure that they do not reflect any discriminatory practice and in order to measure its progress in eliminating any underrepresentation of minority-owned and women-owned businesses, as follows: a. Review contract award decisions of the previous year and revise those contract award procedures which reflect any discriminatory practice; b. Review contract award decisions in light of the remedial goals established for the year and report progress in eliminating any underrepresentation of minorities and women or lack thereof to the Mayor, including any reasons why despite good faith efforts the contracting agency was unable to meet its goals for the year; c. Reevaluate remedial goals established for each business category to insure that the goals are realistic in relation to the number of qualified minority-owned and women-owned businesses in the community and to insure that the goals are being used as guidelines rather than as quotas which must be met; and d. Discontinue the remedial goal for a particular business category when the underrepresentation of minority-owned and women-owned businesses is eliminated in that category. (f) Compliance Mechanisms. In order to insure compliance with diversity action procedures the contracting agency or its designee shall have the right during the term of the City contract to: 12 (1) Inspect any and all of the contractor's records, books and reports, provided such materials relate to contractor's compliance~or noncompliance with diversity action procedures; (2) Conduct on-site inspections in order to evaluate the contractor's business practices; (3) Monitor the contractor's progress toward attaining the goals established in its diversity action plan by requiring the contractor to submit annual diversity action reports to the Mayor's designee; and (4) Review the status of a certified contractor to insure that the contractor still qualifies as a minority business enterprise or a women business enterprise. (g) Noncompliance Procedures. In the event of noncompliance with any of the provisions of this article: (1) The contracting agency shall serve written notice of the noncompliance on the contractor or his representative; (2) Within five (5) days after receiving notice of noncompliance the contractor shall either proceed to correct the ,noncompliance or meet with a designee of the contracting agency to determine a method of correcting the noncompliance; (3) If the contractor does not correct the noncompliance in a manner satisfactory to the contracting agency within thirty (30) days, the contracting agency shall hold a hearing upon written notice to the contractor and shall give the contractor opportunity to show cause why it has not met its diversity action obligations and why it should not be suspended; and (4) If the contractor is unable to establish any reason why despite good faith efforts it has been unable to meet its diversity action obligations, the contracting agency shall have the right to impose one or more of the sanctions prescribed in section 14.5-7. The decision of the contracting agency shall be final for purposes of judicial review. (Ord. No. 7811-87, § 1) Sec. 14.5-7. Penalties. The contracting agency shall have the right, after first following the noncompliance procedures provided in section 14.5-6(g), to impose the following penalties and sanctions in the event of a contractor's noncompliance with any of the provisions of this article: (a) Forfeiture of performance bond. The contracting agency may require the contractor to forfeit to the City its performance bond under the City contract; I~ (b) Cancellation of contract. The contracting agency may cancel, terminate or suspend the City contract or any portion thereof, including, but not limited to, withholding any progress payment or monies payable under the contract; (c) Review of other City contracts. The contracting agency may review other City contracts to which contractor is a party in order to determine if the contractor is in compliance under those contracts; (d) Suspension. The contracting agency may suspend the contractor from working on future City contracts for a period of at least one year (or longer for continued noncompliance with the provisions of this article); and (e) Legal remedies. The contracting agency may avail itself of any and all other legal remedies and sanctions. SECTION IV. Anew Article IV of Chapter 14.5 of the South Bend Municipal Code is included to read in its entirety to read as follows: ARTICLE 4. DIVERSITY ACTION COMPLIANCE POLICY AND PROCEDURES Application of this article. This article shall apply to all City departments, agencies, boards and commissions. Sec. 14.5-8 . Conformity with Applicable Federal and State Laws of the Code of the City of South `Bend. The provisions of this Article shall be construed according to and in conformity with Acts of Congress and of the Legislature of the State of Indiana concerning the bidding and awarding of contracts in accordance with United States Department of Transportation, 49 CFR Part 23, 24 CFR. part 135 (Section 3), Title VI of the Civil Rights Act of 1964, Executive Order 11625, October 13, 1971, Executive Order 11246, and other laws applicable to providing contracting opportunities to Disadvantaged Business Enterprises(DBE), Women and Minority Business Enterprises (WMBE) and Section 3 Business Enterprise. Where provisions of this Article came into conflict with either federal or state law or Code of the City of South `Bend, the federal or state law or City Code shall prevail. Sec. 14.5-9. HUD "Section 3 Requirements" (24 C.F.R. Part 135) In The Provision Of Training Employment And Business Opportunities: Borrowers receiving more than $200,000 of federal funds for a project and any contractor or subcontractor with a contract on such a project in excess of $100,000 are subject to the Section 3 requirements outlined in 24 C.F.R. Part 135. All Section 3 covered contracts shall include the following clause (referred to as the "Section 3 Clause"): 14 (1). The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701 u (Section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. (2). the parties to this contract agree to comply with HUD's regulations in 24 C.F.R. part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contracts certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. (3). The contractor agrees to send to each labor organization or representative or workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers representative of the contractor's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. (4). The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 C.F.R: part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 C.F.R. part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 C.F.R. part 135. (5). The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 C.F.R. part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 C.F.R. part 135. (6). Noncompliance with HUD's regulations in 24 C.F.R. part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. Sec. 14.5-10. Diversity Compliance Officer The Mayor shall designate a Diversity Compliance Officer (DCO) or designated Consulting Firm. The DCO's duties will include the following: monitor contractors awarded contracts with the City for construction services for compliance with all applicable Federal, State and Local ~ fir- laws, statues, and codes regarding minority, women and Section 3 employment requirements and women and minority business enterprise contracting and subcontracting levels during the contractual term. The Compliance Official shall also prepare a list of all minority business enterprises in -the Standard Metropolitan Statistical Area, compliance guidelines for contractors with the City for construction services, with said guidelines to include monitoring and reporting procedures, and recommendation for actions to be taken should non-compliance occur and procedural guidelines for City allocation of contracts to minority business enterprises as provided by this ordinance. Said guidelines shall be subject to the approval of City Council. The Compliance Official or designated Consulting Firm shall also perform such other duties relating to the provisions of this Article as may be directed by the Mayor. Sec. 14.5-11. Establishment of Goals. (1) To achieve parity there is hereby established a goal of 15% (10% minority and 5% women) of the City's annual monetary value of contracts and subcontracts for supplies, services and construction to be awarded to minority business enterprises meeting contract specifications. Calculation of the 15% monetary value shall not include the amounts for contracts for which no minority business enterprise bid or contracts where no W/MBE meets the specifications. (2) The goals for minority group employment levels and minority enterprise subcontract levels to be achieved by contractors with the City for construction are hereby set at 18%. (3) On an annual basis the City Council shall review the levels of minority business enterprise participation for the City's contracting, subcontracting and work force participation, and shall in addition annually review minority population totals and percentages for the St. Joseph County area. After said reviews, the City Council may adjust the percent goals for contracts, subcontracts and work force participation to reflect a more representative share of the minority population or available market of minority business enterprises. (4) In determining the MBE/WBE participation on a contract, the following facts will be taken into consideration: (a) On contracts where the estimated material portion of the contract exceeds thirty percent (60%) of the project cost and the materials in question are not available to be furnished through City certified MBE/WBE firms, the Diversity Compliance Officer or his designee is authorized to effect reductions in the goals for the project to reflect the unavailability of the materials. It is intended that this provision will only be utilized for projects involving major equipment items such as pipe, equipment, fabrications, etc. (b) The costs of materials which will be used in determining the MBE/WBE participation at the time of bid shall be those estimates as compiled by the City of South `Bend. The City's adjusted goal will be the official goal on any particular project subject only to other provisions of this ordinance. (5) In all instances, any MBE/WBE company performing under a contract with the City of South `Bend may only claim, as part of his/her MBE/WBE participation, those materials which the 16 company purchases and actually fully installs as part of their responsibility under the contract, if such work is listed as one of the areas of expertise under which the company is certified or recognized to perform. (6) If a certified or recognized material supplier, exists, that portion of the contract filled by the supplier will count directly against the 10% MBE & 5% WBE goals and will not be adjusted according to the Project Labor Agreement.. The percent of the total contract price which is performed by the material supplier shall first be deducted from the City's goals, i.e.: eighteen percent (10%) in the case of minority business enterprises and six percent (5%) in the case of woman-owned business enterprises. Any remaining MBE/WBE percentage which the material supplier has failed to satisfy shall then be adjusted according to Project Labor Agreement. The prime contractor shall then have to make a good faith effort to provide subcontracts to minority or woman-owned companies, as the case may be, to fulfill the City's goals. Sec. 14.5-12. Award of Contracts to WMBE~ Enterprises. ~1) If, during any fiscal year, bids are being sought by the City for a contract to provide supplies, services or construction and the City has not achieved the goal established in accordance with Section 14.5-11) of this Chapter, the contract shall be awarded to the lowest bidding minority business enterprise meeting contract specifications unless it appears that the minority business enterprise's bid is unreasonably priced or the minority business enterprise's bid is neither in the best interest of the City nor the lowest and best bid. All other factors being equal, preference shall be given to minority business enterprises located in St. Joseph County. For the purpose of this subsection, an "unreasonable price" is a price above competitive levels which cannot be attributed to the minority business' enterprise's attempt to cover costs inflated by the present effect of disadvantage or discrimination. (2) For the purpose of this subsection, determination of the "lowest and best bid" shall include an evaluation of such factors as the nature of the supplies or services sought, prices of similar products in the relevant market area, minority employment levels achieved by the prospective contracting entities, location of business offices, general conditions in the market area, minority participation in the marketplace and such other factors as may be deemed relevant. Sec.14.5-13 Time Requirements and Procedure for Noncompliance (1) Whenever the Diversity Compliance Officer determines a contractor to be in violation of a provision of this chapter, he shall issue a written finding setting forth such determination and the basis of his decision, together with notice to the contractor of the right to object to the finding. Such written finding shall be served upon the contractor by certified mail at such contractor's last known address. Any contractor taking exception to a finding of the Diversity Compliance Officer first shall attempt to reconcile the situation with the Diversity Compliance Officer. A good faith attempt to achieve informal reconciliation is a prerequisite to the contractor filing a written objection with the City Manager. ~? (2) If, after attempting to reconcile the .violation by informal means, the situation is not alleviated, a contractor may file a written objection with the City Manager within fifteen days of the receipt by the contractor of the Diversity Compliance Officer's written finding. Thereupon, the Diversity Compliance Officer shall, within seven days, forward to the City Manager all materials relating to the determination which is appealed, together with recommendations of appropriate remedial action to be taken. The contractor may file a request for a hearing before the City Manager when filing the written objection. (3) If the Diversity Compliance Officer finds a contractor to be in violation of this chapter and no reconciliation is attempted by the contractor within fifteen days of the receipt by the contractor of the written finding, the Diversity Compliance Officer shall forthwith forward his finding to the City Manager along with any recommendation of appropriate remedial action to be taken. (4) Under the direction of and upon authorization from the City Manager, the Diversity Compliance Officer shall determine when a violation of this section exists and when the attempts at reconciliation taken by the contractor will not reasonably alleviate the situation. (5) If the contractor objects to the decision. of the City Manager or Consulting Firm, the contractor must next pursue the appeal process set forth in 49 CFR 23.55. Sec14.5-14. THIRD PARTY COMPLAINTS Any person or organization with information indicating unjust participation by an enterprise or individuals under this program, or who believes that the DBE and W/MBE participation is being improperly applied, should file a written complaint with the City Manager which shall contain a detailed statement in writing of the basis of the complaint.(Ord. No. 7811-87, § 1) SECTION V. This ordinance shall be in full force and effect from and after its passage by the Common Council and approval by the Mayor. Attest: Member of the Common Council City Clerk Presented by me to the Mayor of the City of South Bend, Indiana, on the day of , 2011, at o'clock _ . m. City Clerk 18 Approved and signed by me on the day of , 2011, at o'clock . m. Mayor, City of South Bend, Indiana ~~ -'A'.'.. Y:~„~~: '.. `,,.`,,,111 ~Ij~f~~_.~ ~~ ~~ •:6 ~ ~ ~ ~ f •e~ . K,-.~ Y• .:'Y :jt~. ~-. ~! 2011 Community and Economic Development Committee South Bend Common Council Informal Meeting Room Monday, January 31, 2011, 5:00 p.m. Please PRINT• NAME ~` ~~~ ~~~~~4~ ~ ~~~ ~,~,~,.~ C~ ct,U~ ~ l ~ D a-v~ ~ ~ K S ~~ ~ vY 6 L YSD~ ~lf~I~.~/1 ~SOlr~tsUyl-~l~vN r~1 c~.C ( tV 1 L~ o ~ S v SEp ~ z Z ~~~,~ __~ -T~ ADDRESS 7D~ t, , Sau,~._5,~ /~l6 4~ ~~~ ~S. C~~~~ w ~ ~~ ~~ ~~ ~ 300 ~ ` ~ ao-t~ ~ ~ SG % f A,~~ ~v~ S~ 7 I~~r' ~ ~v-P~ t53 v c_o(1e"c~c S~-~ 3 ~~ ~: ~ 21~~ ~a. ~~