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;

   (c)   Analyze the ownership of stock in the applicant firm, if it is a corporation;

   (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.)

173.07 CONTRACTING GOALS.

   (a)   Goals shall be established for MBE and DBE participation in contracts awarded by the City, the following three areas:

      MBE participation in contracts funded by HUD;

      DBE participation in contracts funded by DOT and FAA;

      MBE participation in contracts financed with City funds.

   When a project is wholly financed with City funds, MBE participation goals may be satisfied either by meeting the MBE percentage referred to above or by the general contractor employing a same or greater percentage of minority workers on the project.

   When a project has state or federal funding, a pre-set minority requirement included in the grant agreement shall supersede the City's goal.

   Each goal shall be set on a percentage basis and the percentage shall be determined initially within sixty days after the effective date of this section and yearly thereafter by the Minority Contracting Goals Committee which is hereby established consisting of the following:

      (1)   Mayor.

      (2)   City Engineer.

      (3)   Director of Public Works.

      (4)   Service Safety Director.

      (5)   Manager of Community Development.

      (6)   Two members from Council, one of whom shall be the chairman of the Public Affairs Committee and the other shall be appointed every two years by Council from its membership.

      (7)   MBE Officer.

   (b)   The Committee shall consider the known availability of qualified MBE's and DBE's in establishing each goal.

   (c)   Each contractor who is awarded a contract funded by HUD, DOT or FAA shall use its best efforts to meet the goal established by the City for the contract awarded.

   (d)   Contractors shall, at a minimum, seek MBE's in the Richland County area. If the contractor cannot meet the goals using MBE's from this geographic area, the contractor, as part of its efforts to meet the goal, can expand its search to a reasonable wider geographic area, or under City funded dollars the workforce approach can be used.

   (e)   Bidders, submitting a bid for any contract shall disclose to the MBE Officer, in writing, the names and addresses of each DBE and MBE firm that will participate in the contract, if awarded to the bidder, a description of the work each named MBE or DBE will perform, and the dollar amount of participation in the contract by each named MBE or DBE. Such disclosure shall be made to the MBE Officer prior to award of the contract.

   (f)   Contractors shall make good faith efforts to replace an MBE subcontractor that is unable to perform successfully with another MBE and replace a DBE subcontractor that is unable to perform successfully with another DBE.

   (g)   Requests for bids published by the City in connection with projects funded by HUD, DOT and FAA shall inform potential bidders of the information which must be submitted to demonstrate their ability to comply with MBE/DBE requirements of the City.

   (h)   The City MBE Officer shall have discretion to decide whether each contractor has exercised its best efforts to meet its MBE/DBE contract goal. In deciding whether a contractor has exercised its best efforts, the City MBE Officer shall consider the following:

      (1)   If a pre-solicitation and/or pre-bid meeting is held whether the contractor attended any meetings that were scheduled to inform DBE's and MBE's of contracting and subcontracting opportunities;

      (2)   Whether the contractor advertised in general circulation, trade association and minority-focus media, as available, concerning the subcontracting opportunities;

      (3)   Whether the contractor provided written notice to a reasonable number of specific DBE's and MBE's enabling the DBE's or MBE's to participate effectively;

      (4)   Whether the contractor followed initial solicitations of interest by contacting MBE's to determine with certainty whether the DBE's and MBE's were interested;

      (5)   Whether the contractor selected portions of the work to be performed by DBE's and MBE's in order to increase the likelihood of meeting the DBE and MBE goals (including, where appropriate, breaking down contracts into economically feasible units to facilitate DBE and MBE participation);

      (6)   Whether the contractor provided interested DBE's and MBE's with adequate information about the plans, specifications and requirements of the contract;

      (7)   Whether the contractor negotiated in good faith with interested DBE's and MBE's, not rejecting DBE's and MBE's as unqualified without sound reasons based on a thorough investigation of their capabilities;

      (8)   Whether the contractor effectively used the services of available minority community organizations; minority contractors' groups; local, state and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of DBE's and MBE's; and

      (9)   Whether the contractor has provided documents and information which the MBE Officer has requested the contractor to provide to the City.

   The general contractor has an obligation to contract with qualifying minority contractors and vendors in the Richland County area. In the event no minority contractors or vendors are available in its scope of work or services, and the general contractor has documented that they have exhausted all means possible to contact qualified MBE's or DBE's in the Richland County area, depending on the funding, the contractor then can request a waiver from the MBE Officer.

   (i)   If the MBE Officer decides that a contract awardee has not exercised good faith to meet the contractor's individual contract goal, the MBE Officer shall recommend to the City Board of Control that the award of contract to such contractor be revoked.

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

173.08 COUNTING MBE/DBE PARTICIPATION.

   (a)   MBE participation shall be counted toward meeting MBE goals set in accordance with this chapter as follows:

      (1)   Once a firm is determined to be an eligible MBE, in accordance with this chapter, the total dollar value of the contract or subcontract awarded to the MBE is counted toward the applicable MBE goals.

      (2)   A contractor may count toward its MBE goals the following expenditures to MBE firms that are not manufacturers or regular dealers:

         A.   The fees or commissions charged for providing a bona fide service, such as professional, technical, consultant or managerial services and assistance in the procurement of essential personnel, facilities, equipment, materials or supplies required for performance of the contract, provided that the fee or commission is determined by the recipient to be reasonable and not excessive as compared with fees customarily allowed for similar services.

         B.   The fees charged for delivery of materials and supplies required on a job site (but not the cost of the materials and supplies themselves) when the hauler, trucker or delivery service is not also the manufacturer of or a regular dealer in the materials and supplies, provided that the fee is determined by the recipient to be reasonable and not excessive as compared with fees customarily allowed for similar services.

            The fees or commissions charged for providing any bonds or insurance specifically required for the performance of the contract, provided that the fee or commission is determined by the recipient to be reasonable and not excessive as compared with fees customarily allowed for similar services.

   (b)   DBE participation shall be counted toward meeting DBE goals set in accordance with this chapter as follows:

      (1)   Once a firm is determined to be an eligible DBE in accordance with this chapter, the total dollar value of the contract or subcontract awarded to the DBE is counted toward the applicable DBE goals.

      (2)   A contractor may count toward its DBE goals only expenditures to DBE's that perform a commercially useful function in the work of a contract. A DBE is considered to perform a commercially useful function when it is responsible for execution of a distinct element of the work of a contract and carrying out its responsibilities by actually performing, managing and supervising the work involved. To determine whether a DBE is performing a commercially useful function, the MBE Officer shall evaluate the amount of work subcontracted, industry practices and other relevant factors.

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

173.09 NONDISCRIMINATION BY CONTRACTORS.

   (a)   The goals hereof are established to encourage affirmative action by all parties who participate in contracts with the City and apply to all contractors and subcontractors.

   (b)   No contractor shall discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, handicap, ancestry or Vietnam-era or disabled veteran status. Contractors shall take such affirmative action as is required by law to ensure that applicants are employed and that employees are treated during employment without regard to race, religion, color, sex, national origin, age, handicap, ancestry or Vietnam-era or disabled veteran status. As used herein, "treated" means without limitation the following: recruited whether by advertising or other means; compensated, whether in the form of rates of pay or other forms of compensation; selected for training, including apprenticeship, promoted, upgraded, demoted, transferred, laid off and terminated. Contractors shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the hiring representatives of the contractors setting forth the provisions of this nondiscrimination clause.

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

173.10 MISREPRESENTATION OR FALSIFICATION.

   (a)   Any person who intentionally misrepresents himself/herself as owning, controlling, operating or participating in an MBE or DBE for the purpose of obtaining contracts, subcontracts or any other benefits under this chapter shall be guilty of theft by deception as provided in Ohio R.C. 2913.02 or in a substantially similar provision in the Codified Ordinances of the City.

   (b)   No person shall knowingly make a false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this chapter, or knowingly swear or affirm the truth of a false statement previously made, or make such a falsification with purpose to mislead a public official in performing his official function. Whoever violates this subsection is guilty of a misdemeanor of the fourth degree on a first offense; on each subsequent offense such person is guilty of a misdemeanor of the third degree. (Ord. 93-001. Passed 1-5-93.)

173.11 TIME REQUIREMENTS AND PROCEDURE FOR NONCOMPLIANCE.

   (a)   Whenever the MBE Officer determines a contractor to be in violation of a provision of this chapter, he/she 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 or by hand delivery. Any contractor taking exception to a finding of the MBE Officer first shall attempt, within seven working days, to reconcile the situation with the MBE Officer. A good faith attempt to achieve informal reconciliation is a prerequisite to the contractor filing a written objection with the City's MBE Officer.

   (b)   If, after attempting to reconcile the violation by informal means, the situation is not alleviated, within seven working days, a contractor may file a written objection with the City's Public Works Director. Thereupon, the MBE Officer shall, within seven days, forward to the City's Public Works Director all materials relating to the determination which is appealed, together with recommendations of appropriate remedial action to be taken.

   (c)   If the MBE 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 MBE Officer shall forthwith forward his finding to the City's Public Works Director along with any recommendation of appropriate remedial action to be taken.

   (d)   Under the direction of and upon authorization from the City, the MBE 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.

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

173.12 ENFORCEMENT.

   Whenever the MBE Officer is satisfied that a contractor is in violation of the provisions of this chapter, he may serve a written notice upon the violator which notice shall contain a brief and concise statement of the violation and shall order correction of the condition that is in violation, within ten days of such extended time as such officer may determine to be appropriate.

   The notice shall also advise the contractor or other responsible person that the order may be appealed under the provisions of this chapter or any applicable appeal provision of the Ohio Revised Code.

   Service of the notice shall be made by certified mail or personally upon the contractor or the person responsible on the contractor's behalf. Service shall be considered made upon date of mailing.

   Any contractor or other responsible person aggrieved by an order issued pursuant to provisions of this chapter may appeal such order to the City's Safety Director who is hereby designated as the officer by whom the hearing is conducted. The Safety Director shall serve written notice, by personal delivery or by certified mail, upon the person appealing, of the time, date and place of the appeal hearing which shall be within ten days of the filing of the appeal provided that notice of the hearing date must be served on the appellant not less than five days prior to the hearing date set. The Safety Director shall have authority to grant one continuance of the date of hearing, upon application of the appellant and for good cause shown, which continuance shall not exceed twenty days. Failure of the appellant to appear at the time and place set for the hearing shall be deemed a withdrawal of the appeal and the Safety Director shall affirm the order of the MBE Officer.

   Within five days from the date of the hearing, the Safety Director shall render his decision in writing to all the parties. The Safety Director may order any appropriate relief including rescission or cancellation of a contract and/or removal from a certification or bidders listing. The decision of the Safety Director shall be a final administrative order and the party adversely affected thereby may seek judicial appeal according to law.

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