173.03 DUTIES OF THE MBE OFFICER.

(a) It is the policy of the City that Disadvantaged Business Enterprises and Minority Business Enterprises, as defined herein, shall have the maximum practical opportunity to participate in the performance of contracts let by the City. In this regard, the City and its contractors are required to comply with both the letter and spirit of this chapter, as well as with the provisions of United States Department of Transportation 49 CFR, Part 23, 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.

(b) The goals which the City establishes for the Disadvantaged and Minority Business Enterprises Program are:

(1) To ensure that Disadvantaged Business Enterprises and Minority Business Enterprises have maximum opportunity to participate in all City contracts;

(2) To encourage all City contractors to make conscientious efforts, consistent with sound procurement practices and applicable law, to afford Disadvantaged Business Enterprises and Minority Business Enterprises a fair opportunity in their subcontracting or supplying processes;

(3) To prohibit City contractors from discriminating against potential subcontractors and potential suppliers because such potential subcontractor or potential supplier is a minority business or a disadvantaged business.

(Ord. 93-001. Passed 1-5-93.)

173.02 DEFINITIONS.

As used in this chapter, the following definitions shall apply:

(a) "Asian-Indian Americans" means persons whose origins are from India, Pakistan, Sri-Lanka and Bangladesh;

(b) "Asian-Pacific Americans" means persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific and the Northern Marianas;

(d) "Black Americans" means persons having origins in any of the Black racial groups of Africa;

(e) "City" means the City of Mansfield, Ohio;

(f) "Contract" means a bidding agreement executed on or after the effective date of this section whereby the City is committed to expend or does expend its funds or other resources for or in connection with the following purposes:

(1) Construction of any public improvements;

(2) Purchase of any personal property;

(3) Purchase of any services;

(4) Lease of any personal property; or

(5) Concession agreements whereby the City grants a specific permission, privilege or license.

(g) "Contractor" means a party who participates, at any level, in a contract as defined in subsection (f) hereof.

(h) "Disadvantaged Business Enterprise" (hereinafter "DBE") means a small business concern:

(1) Which is at least fifty-one percent (51%) owned by one or more socially and economically disadvantaged individuals, or, in the case of any publicly 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.

(i) "Discriminate" means to exclude an individual or group solely on the basis of race, religion, color, sex, national origin, age, handicap, ancestry or Vietnam-era or disabled veteran status.

(j) "Hispanic Americans" means persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;

(k) "Joint venture" means an association of two or more businesses to carry out a single business enterprise for profit for which purpose they combine their property, capital, efforts, skills and knowledge.

(l) "Manufacturer" means a firm (business) that operates or maintains a factory or establishment that produces on the premises a product, materials or supplies, or items (obtained by the recipient or contractor).

(m) "Minority Business Officer" or "MBE Officer" means the person designated by the City to administer this chapter. The Minority Business 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.

(n) "Minority" means a United States citizen or lawful, permanent resident who is: Black American or Hispanic American or Native American or Asian-Pacific American or Asian-Indian American.

(o) "Minority Business Enterprise", (hereinafter "MBE") means a business concern which is at least fifty-one percent (51%) owned by one or more minorities, or in the case of a publicly-owned business, at least fifty-one percent (51%) of the stock is owned by minorities, whose management and daily business operations are controlled by one or more such minority individuals; and that at least fifty-one percent (51%) of the net profits or losses attributable to that business enterprise accrues to minority persons;

(p) "Native Americans" means persons who are American Indians, Eskimos, Aleuts or Native Hawaiians;

(q) "Regular dealer" means a firm that owns, operated or maintains a store, warehouse or other establishment in which the materials or supplies required for the performance of the contract are bought, kept in stock and regularly sold to the public in the usual course of business. To be a regular dealer, the firm shall engage in, as its principal business, and in its own name, the purchase and sale of the products in question. A regular dealer in such bulk items as steel, cement, gravel, stone and petroleum products need not keep such products in stock, if it owns or operates distribution equipment. Brokers and packagers shall not be regarded as manufacturers or regular dealers within the meaning of this chapter.

(r) "Small business concern" means a small business as defined in Section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto except that a small business concern shall not include any concern or group of concerns controlled by the same socially and economically disadvantaged individual or individuals which has annual average gross receipts in excess of fourteen million ($14,000,000) over the previous three fiscal years.

(s) "Socially and economically disadvantaged individuals" ("disadvantaged individuals) means individuals who are citizens of the United States (or lawful 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 disadvantaged by the Small Business Administration pursuant to Section 8 (a) of the Small Business Act.

(t) "Subcontractor" means one who has contracted with the prime contractor for the performance of all or a part of the work or services which such prime contractor has contracted to perform. The purchases of materials and/or equipment by a contractor or a subcontractor for the performing of the work or service of its contract shall not be regarded as subcontracting.

(u) "HUD" means the United States Department of Housing and Urban Development.

(v) "DOT" means the United States Department of Transportation.

(w) "FAA" means the Federal Aviation Administration.

(Ord. 93-001. Passed 1-5-93.)

173.03 DUTIES OF THE MBE OFFICER.

In addition to those duties specified in other sections of this chapter, the MBE Officer and such other employees as are necessary shall implement and enforce this chapter in accordance with the duties listed hereunder. The duties of the MBE Officer shall include, but not be limited to:

(a) Developing, monitoring implementation of and providing continuing evaluation of the City's MBE/DBE Program;

(b) Reporting annually to Council on the MBE/DBE Program and recommending changes as needed. Reporting responsibility also includes compilation and submission of reports required by federal agencies related to the MBE/DBE Program (including those records necessary to comply with 49 CFR Section 23.49), and maintenance of accurate and up-to-date records demonstrating City efforts and progress; with respect to its DBE/MBE goals as set forth in this chapter.

(c) Reviewing all applications and other information supplied to determine whether individual contractors have been certified or are certifiable as MBE's and/or DBE's;

(d) Compiling and maintaining a directory identifying MBE's and DBE's by name, address and other designations deemed appropriate by the MBE Officer. Each such business enterprise shall be classified in the directory as a MBE and/or DBE. The directory shall be updated at least annually and shall be made available in the office of the MBE Officer for review by bidders;

(e) Assisting in securing management and technical assistance resources for MBE's and DBE's;

(f) Publicizing business opportunities with the City suitable for MBE, WBE or DBE participation including, but not limited to, those involving the use of funds provided by HUD, DOT and FAA;

(g) Assisting MBE's and DBE's in locating resources to aid in bidding on City contracts and subcontracts by planning and/or participating in training sessions, workshops, seminars, etc. This assistance shall include pre-bid and pre- construction meetings to explain MBE/DBE requirements;

(h) Monitoring the subcontracting practices of City contractors to ensure continued compliance;

(i) Receiving and reviewing rules and regulations issued by the State of Ohio or the Federal Government relevant to contract compliance, and assuring that the City is conforming to those rules and regulations applicable to the City; and

(j) Investigating complaints of discrimination against MBE's and DBE's by City contractors.

(Ord. 93-001. Passed 1-5-93.)

173.04 MBE ELIGIBILITY AND CERTIFICATION.

(a) Each business, including the MBE partner in a joint venture, wishing to participate in City contracts as a MBE, shall complete and submit an MBE application. Each entity wishing to participate as a joint venture MBE shall in addition complete and submit a MBE joint venture application. The application shall be signed by the authorized representative of the business entity and shall be sworn to before a notary public. A business seeking certification as an MBE shall submit the required application with its bid.

(b) The MBE Officer shall apply the following standards in determining whether a business enterprise qualifies for MBE status:

(1) Bona fide minority group membership shall be established on the basis of the individual's claim that he or she is a member of a minority group and is so regarded by that particular minority community.

(2) An eligible MBE under this part shall be an independent business. The ownership and control by minorities shall be real, substantial and continuing and shall be beyond the pro forma ownership of the firm as reflected in its ownership documents. The minority owners shall enjoy the customary incidents of ownership and shall share in the risks and profits commensurate with their ownership interests, as demonstrated by an examination of the substance rather than form of arrangements. Recognition of the business as a separate entity for tax or corporate purposes is not necessarily sufficient for recognition as a MBE. In determining whether a potential MBE is an independent business, the MBE Officer shall consider the date the business was established, the adequacy of its resources for the work of the contract, and the degree to which financial, equipment leasing and other relationships with non-minority firms vary from industry practice.

(3) The minority owners shall also possess the power to direct or cause the direction of the management and policies of the firm and to make the day- to-day as well as major decisions on matters of management, policy and operations. The firm shall not be subject to any formal or informal restrictions which limit the customary discretion of the minority. There shall be no restrictions through, for example, bylaw provisions, partnership agreements or requirements in articles of incorporation for cumulative voting rights or otherwise that prevent the minority owners, without the cooperation or vote of any owner who is not a minority, from making a business decision of the firm.

(4) If the owners of the firm who are not minorities are disproportionately responsible for the operation of the firm, then the firm is not controlled by minorities and shall not be considered an MBE within the meaning of this chapter. Where the actual management of the firm is contracted out to individuals other than the owner, those persons who have the ultimate power to hire and fire the managers can, for the purpose of this part, be considered as controlling the business.

(5) All securities which constitute ownership and/or control of a corporation for purposes of establishing it as an MBE under this part shall be held directly by minorities. No securities held in trust, or by any guardian for a minor, shall be considered as held by a minority in determining the ownership or control of a corporation.

(6) Newly formed firms and firms whose ownership and/or control has changed since the date of the advertisement of the contract shall be reviewed to determine the reasons for the timing of the formation of or change in the firm.

(7) A previous and/or continuing employer-employee relationship between or among present owners shall be reviewed to ensure that the employee-owner has management responsibilities and capabilities discussed in this section.

(8) Any relationship between an MBE and a business which is not an MBE, but which has an interest in the MBE, shall be reviewed to determine if the interest of the non-MBE conflicts with the ownership and control requirements of this section.

(c) A joint venture is eligible under this section if the MBE partner of the joint venture meets the standards for an eligible MBE set forth above and the MBE partner is responsible for a clearly defined portion of the work to be performed and shares in the ownership, control, management responsibilities, risks and profits of the joint venture.

(d) A business wishing to be certified as an MBE or joint venture MBE shall provide such additional information to the City as the MBE Officer shall request.

(e) If after review and applying the above standards, the MBE Officer determines that applying business enterprise is a bona fide MBE, he shall certify the business enterprise as an MBE firm and issue an MBE certification number to the firm. The certification shall be effective as long as the information in the relevant MBE application continues to be true, but no longer than for a period of twelve months.

(f) Once certified, an MBE shall update its MBE application annually. If at any time there is a change in ownership or control of the firm, the MBE shall submit a new MBE application.

(Ord. 93-001. Passed 1-5-93.)

173.05 DBE ELIGIBILITY AND CERTIFICATION.

(a) Each business, including the DBE partner in a joint venture, wishing to participate in City contracts as a DBE, shall complete and submit a DBE application. Each entity wishing to participate as a joint venture DBE shall in addition complete and submit a DBE joint venture application. The applications shall be signed by the authorized representative of the business entity and shall be sworn to before a notary public. A business seeking certification as a DBE shall submit the required application with its bid.

(b) The MBE Officer shall apply the following standards in determining whether a business enterprise qualifies for DBE status:

(1) Bona fide minority group membership, including women, shall be established on the basis of the individual's claim that he or she is a member of a minority group and is so regarded by that particular minority community.

(2) An eligible DBE under this part shall be an independent business and shall be a small business concern. The ownership and control by disadvantaged individuals shall be real, substantial and continuing and shall go beyond the pro forma ownership of the firm as reflected in its ownership documents. The disadvantaged individuals shall enjoy the customary incidents of ownership and shall share in the risks and profits commensurate with their ownership interests, as demonstrated by an examination of the substance rather than form of arrangements. Recognition of the business as a separate entity for tax or corporate purposes is not necessarily sufficient for recognition as a DBE. In determining whether a potential DBE is an independent business, the MBE Officer shall consider the date the business was established, the adequacy of its resources for the work of the contract and the degree to which financial, equipment leasing and other relationships with non-disadvantaged individual firms vary from industry practice.

(3) The disadvantaged individuals who are owners shall also possess the power to direct or cause the direction of the management and policies of the firm and to make the day-to-day as well as major decisions on matters of management, policy and operations. The firm shall not be subject to any formal or informal restrictions which limit the customary discretion of the disadvantaged individual. There shall be no restrictions through, for example, bylaw provisions, partnership agreements or requirements of the articles of incorporation for cumulative voting rights or otherwise that prevent disadvantaged individuals, without the cooperation or vote of any owner who is not a disadvantaged individual, from making a business decision of the firm.

(4) If the owners of the firm who are not disadvantaged individuals are disproportionately responsible for the operation of the firm, then the firm is not controlled by disadvantaged individuals and shall not be considered a DBE within the meaning of this chapter. Where the actual management of the firm is contracted out to individuals, other than the owner, those persons who have the ultimate power to hire and fire the managers can, for the purpose of this part, be considered as controlling the business.

(5) All securities which constitute ownership and/or control of a corporation for purposes of establishing it as a DBE under this part shall be held directly by disadvantaged individuals. No securities held in trust, or by any guardian for a minor, shall be considered as held by a disadvantaged individual in determining the ownership or control of a corporation.

(6) The contributions of capital or expertise by the disadvantaged individual owners to acquire their interests in the firm shall be real and substantial. Examples of insufficient contributions include a promise to contribute capital, a note payable to the firm or its owners who are not socially and economically disadvantaged, or the mere participation as an employee, rather than as a manager.

(7) Newly formed firms and firms whose ownership and/or control has changed since the date of the advertisement of the contract shall be reviewed to determine the reasons for the timing of the formation of or change in the firm.

(8) A previous and/or continuing employer-employee relationship between or among present owners shall be reviewed to ensure that the employee-owner has management responsibilities and capabilities discussed in this section.

(9) Any relationship between a DBE and a business which is not a DBE which has an interest in the DBE shall be reviewed to determine if the interest of the non-DBE conflicts with the ownership and control requirements of this section.

(c) A joint venture is eligible under this section if the DBE partner of the joint venture meets the standards for an eligible DBE set forth above and the DBE partner is responsible for a clearly defined portion of the work to be performed and shares in the ownership, control, management responsibilities, risks and profits of the joint venture.

(d) A business wishing to be certified as a DBE or joint venture DBE shall provide such additional information to the City as the MBE Officer requests.

(e) If, after review, the MBE Officer determines that the applying business enterprise is a bona fide DBE, he shall certify the business enterprise as a DBE firm and issue a DBE certification number to the firm. The certification shall be effective as long as the information in the relevant DBE application continues to be true, but no longer than for a period of twelve months.

(f) Once certified, a DBE shall update its DBE application annually. If at any time there is a change in ownership or control of the firm, the DBE shall submit a new DBE application.

(Ord. 93-001. Passed 1-5-93.)

173.06 REQUIRED STEPS IN EVALUATING MBE AND DBE APPLICATIONS.

The MBE Officer shall take the following steps in evaluating each MBE application:

(a) Perform an on-site visit to the offices of the applicant firm and to any job sites on which the applicant firm is working at the time of the eligibility investigation;

(b) Obtain the resumes or work histories of the principal owners of the applicant firm and personally interview such individuals;

(d) Analyze the bonding and financial capacity of the applicant firm;

(e) Determine the work history of the applicant firm, including contracts it has received and work it has completed;

(f) Obtain or compile a list of equipment owned or available to the applicant firm and the licenses of the firm and its key personnel to perform the work it seeks to do in participating in the MBE or DBE Program;

(g) Obtain a statement from the applicant firm of the type of work it prefers to perform as part of the MBE or DBE Program; and

(h) Perform such additional investigation as the MBE Officer deems necessary to thoroughly and fairly evaluate each MBE application.

(Ord. 93-001. Passed 1-5-93.)

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