COMMITTEE SUBSTITUTE
FOR ORDINANCE NO. 070504, AS AMENDED
Amending Chapter 38, Code of Ordinances, by adding new Sections 38-83.1 through 38-83.13, to establish a
construction employment program, that sets goals for utilization of minority,
women and resident workers on construction projects and establishing an
effective date.
BE IT ORDAINED BY THE
COUNCIL OF KANSAS CITY:
Section 1. That
Chapter 38, Code of Ordinances of the City of Kansas City, Missouri, is hereby
amended by enacting new Sections 38-83.1 through 38-83.13, to read as follows:
Sec. 38-83.1. Definitions
applicable to the Construction Employment Program.
The following
definitions apply to Sections 38-83.1 through 38-83.13:
Apprentice
means person of legal working age who has entered into a program for training
and employment to learn a skilled construction trade.
Apprenticeship
Program means a program approved by the Bureau of Apprenticeship Training
providing for no less than 2,000 hours of reasonably continuous employment and
for participation in an approved schedule of work experience through
employment, which shall be supplemented by a minimum of 144 hours per year of
related instruction.
City means the
City of Kansas City, Missouri.
City Construction
Contract means a contract estimated by the City prior to solicitation as
requiring more than 800 construction labor hours and with an estimated cost
that exceeds $324,000.00 for the construction, reconstruction, improvement,
enlargement or alteration of any fixed work for which tax abatement has been
granted, or in which any portion is paid for out of city funds, tax increment
financing, or funds administered by the City pursuant to a federal or state
grant, including, but not limited to any building, road, street, public utility
or other public facility, regardless of the contracts dollar amount, and
regardless further of whether the City is a signatory to the contract.
Construction
Contractor means any individual, partnership, corporation, association or
other entity, or any combination of such entities, who or which enters into a
City Construction Contract, regardless of the number of employees.
Construction
Employment Goals means the percentages of construction labor hours to be
performed by, minority and women workers for a Construction Contractor on all
construction projects of that Construction Contractor throughout the Kansas
City Metropolitan Statistical Area, on a particular City Construction Contract,
during the construction time period of that City Construction Contract unless
otherwise waived by the Director or the Construction Work Force Board.
Construction
Employment Program means a program enacted by ordinance regarding the
recruitment, training, mentoring and retention of employees, including
apprentices and journeymen, on construction projects. The term Construction
Employment Program shall also mean Workforce Ordinance.
Construction Hours
Affidavit means a statement by a Construction Contractor, verified under
oath, setting forth the Construction Contractors intent to meet or exceed the
Construction Employment Goals while performing a City Construction Contract.
Construction Labor
Hour means a sixty minute period of time devoted by a worker, employed by a
contractor or subcontractor, performing labor on a construction project job
site; or, preparing, fabricating or painting materials or equipment to be used
or incorporated on a construction project job site.
Construction
Project means any project performed by a Construction Contractor in the
Kansas City Metropolitan Statistical Area.
Construction
Workforce Board means a board, created as provided herein.
Director means
the Director of the Human Relations Department of the City of Kansas City,
Missouri or his/her designee, or the person within the City Managers Office
that is assigned to perform the tasks delegated to the Director of the Human
Relations Department by this Article.
Equal Opportunity
Clause means a statement prohibiting discrimination on construction
projects based on race, color, sexual orientation, age, gender, national
origin, religion, mental or physical disability as proscribed in the Kansas City
Code of Ordinances, Chapter 38, Article III, Section 38-132.
Good Faith Waiver
means a waiver that is granted by the Director, or upon appeal of the
Directors decision, by the Construction Workforce Board based upon a showing
by a Construction Contractor that despite undertaking in good faith the actions
outlined in this Ordinance, the Construction Contractor was unable to achieve
the Minimum Employment Goals.
Incentive
Construction Employment Goal means an aspirational goal for company-wide
employment of minorities and women intended to encourage Construction
Contractors to invest additional money and resources to hire and retain
minorities and women on their workforce in order to achieve participation
percentages well in excess of the Minimum Employment goals and the percentage
of minorities and women generally available in the workforce by providing
public recognition upon the completion of a City Construction Contract, to the
Construction Contractor who achieves such goal.
Journeyperson
means one who has completed an apprenticeship in a trade or craft and is
recognized in the particular trade or craft as a journeyperson.
Labor Union
means any organization which exists, in whole or in part, for the purpose, of
collective bargaining; for dealing with employers concerning grievances, terms
or conditions of employment; or, for other mutual aid or protection of workers
in relation to employment.
Metropolitan
Statistical Area (MSA) means the Kansas City metropolitan statistical area
as defined by the United States Department of Labor.
Minimum
Construction Employment Goal means a minimum goal for company-wide
employment of minorities and women that a Construction Contractor is expected
to endeavor to meet by undertaking in good faith the actions outlined in this
Ordinance.
Minority means
a person who is a citizen or lawful permanent resident of the United States and who is:
(1) African American, a person whose origins are in any of the
Black racial groups of Africa, and who has historically and consistently
identified himself or herself as being such a person; or
(2) Hispanic American and/or Latino American, a person whose
origins are in Mexico, Central or South America, or any of the Spanish speaking
islands of the Caribbean, (for example Cuba and Puerto Rico) regardless of
race, and who has historically and consistently identified himself or herself
as being such a person; or
(3) Asian and/or Pacific Islander American, a person whose
origins are in any of the original peoples of the Far East, Southeast Asia, the
islands of the Pacific or the Northern Marianas, or the Indian Subcontinent,
and who has historically and consistently identified himself or herself as
being such a person; or
(4) Native American, a person having origins in any of the
original peoples of North America, and who maintain tribal affiliation or
demonstrate at least one-quarter descent from such groups, and who has
historically and consistently identified himself or herself as being such a
person.
Resident
means an individual residing or domiciled within the City.
Woman
means a person who is a citizen or lawful permanent resident of the United States and who is a female.
Workforce
Preparedness Program means a program that actively seeks the participation
of minorities and women and provides them with the skills and resources
necessary to enter a program for training and employment to learn a skilled
construction trade.
Sec.
38-83.2. Establishing and Declaring the Purpose of the Construction Employment
Program.
(a) The
Construction Employment Program is hereby established. The purpose of the
Construction Employment Program is to:
(1)
Increase recruitment, training, and retention of residents, minorities and
women on City Construction Contracts and throughout the Kansas City MSA; and
(2)
Prescribe policies and procedures to implement the Citys objective in
accordance with this Ordinance; and
(3) Promote Workforce Preparedness Programs
and Apprenticeship Programs to increase the number of skilled minority and
women employees in the construction trades with the goal of increasing minority
participation in Apprenticeship Programs to 30% by 2011 and female
participation in Apprenticeship Programs to 5% by 2011.
(4) Further the retention of
minorities and women in the current workforce by promoting mentoring programs
to assist such workers and establishing goals to encourage City Contractors to
retain such workers.
(b)
This ordinance shall not be construed as requiring or encouraging a
Construction Contractor, or any subcontractor or supplier working in
conjunction with the Construction Contractor, to make employment decisions or
otherwise alter the terms and conditions of employment based upon race or
gender.
(c) The
Director is authorized to adopt rules and regulations to implement the
Construction Employment Program.
Sec. 38-83.3. Application of
Ordinance.
(a) The provisions of this Ordinance shall apply to all City
Construction Contracts as defined in this Ordinance.
(b) Entities with the authority to issue tax increment financing or grant
tax abatement shall adopt a workforce policy that is consistent with this
Ordinance.
Sec.
38-83.4. Construction Employment Goals.
(a) Construction
Employment Goals, expressed as a percentage of total construction labor hours
of a Construction Contractor on all Construction Projects within the Kansas
City MSA shall be established by this Ordinance for an initial five year time
period subject to adjustment and renewal by the City Council as provided
herein. Such goals shall be reviewed annually by the Director in consultation
with the Construction Workforce Board and the Director and Construction
Workforce Board shall have the right to recommend to the City Council
adjustments as it deems to be in the best interests of the City and its
citizenry.
(b) In
establishing the Construction Employment Goals the City has considered:
(1) The general population in the City and in
the Kansas City Metropolitan Statistical Area (MSA); and
(2) The general workforce in the City and in
the Kansas City Metropolitan Statistical Area (MSA); and
(3) The availability of minority and women in
the workforce in the City and in the Kansas City Metropolitan Statistical Area
(MSA); and
(4) The utilization of minorities and women in
the workforce in the City and in the Kansas City Metropolitan Statistical Area
(MSA); and
(5) The projected growth of the Kansas City construction industry;
(6) Information from contracting associations,
labor organizations, workforce preparedness programs and community groups
concerning workforce availability in the commercial marketplace; and
(7) Any other requirements imposed by federal,
state or local laws.
(c)
In recommending any adjustments to the Construction Employment Goals, the
Director in consultation with the Construction Workforce Board shall consider
all of the information described in subsection (b) and any statistical data
subsequently gathered regarding the Construction Employment Program
(d) Construction
Employment Goals are established as follows:
(1)
For minorities an Incentive Goal of 20% and a Minimum Goal of 10%
(2)
For women an Incentive Goal of 4% and a Minimum Goal of 2%
(e)
These Construction Employment Goals are not the goals for individual City
Construction Contracts; they are company-wide goals for any Construction
Contractor performing work on a City Construction Contract. Company-wide goals
are intended to further the Citys interest in promoting greater long term
retention of minorities and women. Both goals shall be based upon minorities
and women working sufficient hours to qualify for benefits.
(f)
The Construction Employment Goals shall be reviewed on an annual basis by the
Director in consultation with the Construction Workforce Board. The Director
and the Construction Workforce Board shall present an evaluation to the City
Council of the Construction Employment Program every year. Annually, the City
Council shall review the Directors and Construction Workforce Boards
evaluation of the Construction Employment Program and evaluate whether the
Program should be amended. Every five years, the City Council shall evaluate
whether the Program should be extended or terminated, but failure to do so
shall not invalidate this Ordinance or any contract or solicitation.
(g)
A Construction Contractor is expected to meet the Minimum Employment Goals
unless granted a Good Faith Waiver. In the event that Minimum Construction
Employment Goals have not been met, the City Construction Contractor may
request that the Director waive the goals. The Director shall grant a
Construction Contractors request for waiver if the Construction Contractor can
demonstrate that good-faith efforts have been made to achieve the goals. In
determining whether a Construction Contractor made a good faith effort to meet
the Minimum Employment Goals, the Director shall consider whether the
Construction Contractor undertook the following actions:
(1) For those Construction Contractors that
are not signatories to a collective bargaining agreement with organized labor:
a.
Requested in writing the assistance of the Director with respect to
efforts to promote the utilization of, minorities and women in the workforce
and acted upon the Directors recommendations; and
b. Advertised in minority or women trade
association newsletters and/or minority or women owned media at least 15
calendar days prior to the utilization of any construction services on the City
Construction Contract, and used terminology that sufficiently describes the
work available, the pay scale, the application process, and anything else that
one might reasonably be expected to be informed of relevant to the position
being advertised; and
c. Maintained
copies of each advertisement and a log identifying the publication and date of
publication; and
d.
Conducted real and substantial recruitment efforts, both oral and
written, targeting resident, minority and women community-based organizations,
schools with a significant minority student population, and training
organizations serving the recruitment area; and
e.
Established and maintained a current list of resident, minority and
women recruitment sources, providing written notifications to the recruitment
sources of available employment opportunities, and maintained records of the
notices submitted to the organizations and any responses thereto; and
f.
Maintained a current file for the time period of the City Construction
Contract with the name, address, and telephone number of each resident,
minority and woman job applicant, the source of the referral, whether or not
the person was hired, and in the event that the applicant was not hired, the
reason therefore; and
g.
Required by written contract all subcontractors to comply with this
provision.
h.
Promoted the retention of minorities and women in its workforce with the
goals of achieving sufficient annual hours for minorities and women to qualify
for applicable benefits.
(2) For those Construction Contractors that
are signatories to collective bargaining agreements with organized labor:
Support the efforts of the Joint
Apprenticeship Training Committee (JATC) a joint effort of Labor Unions and
Contractors, or some other Apprenticeship Program, whose purpose is to recruit,
train and employ new workers for a full time career in the construction
industry.
b. Requested in writing from
each Labor Union representing crafts to be employed by the City Contractor
that:
i.
The Labor Union make efforts to promote the utilization of residents of
the City, minorities and women in the workforce;
ii. The Labor Union identify any residents of the City,
minorities and women in its membership eligible for employment by the City Contractor;
iii. the JATC take substantial and real steps to increase the
participation of minorities in the union Apprenticeship Programs in the
aggregate to 30% by 2011 and encourage other Labor Unions to do the same;
iv. the JATC take substantial and real steps to increase the
participation of women in the union Apprenticeship Programs in the aggregate to
5% by 2011 and encourage other Labor Unions to do the same
v. the JATC partner with workforce
preparedness programs, community based organizations, employment referral
programs and school-sponsored programs to accomplish these goals
c. Collaborate with Labor Unions in promoting
mentoring programs intended to assist minorities and women in increasing
retention with the goals of achieving sufficient annual hours to qualify for
applicable benefits.
d. Maintained
a current file with the name, address, and telephone number of each resident,
minority and woman worker identified by the Labor Union, whether or not the
person was hired, and in the event the person was not hired, the reason
therefore.
e. To
the extent that the good-faith effort requirements set forth in this section
are in conflict with the procedures implemented by the Construction Contractor
in order to comply with a competitive bargaining agreement, the Construction
Contractor shall substitute other procedures, as may be approved by the
Director in writing, in order to accomplish the purpose and intent of this
section
(h) Required by written contract all subcontractors
to comply with this provision; and
(i)
Notwithstanding anything contained in this section, if the waiver is required
by federal or state or local law, the Director shall grant a waiver to a
Construction Contractor that nonetheless fails to meet: (a) the minority and
women employment goals; and (b) the standards set forth in Section 38-83.4.
(j) When
a request for Good Faith Waiver has been filed and the Director has determined
that the Construction Contractor has not met the goals despite its good faith
efforts as defined in this section, the Director may grant a full or partial
waiver to the Construction Contractor. If the Director denies a Construction
Contractors request for waiver, the Construction Contractor may appeal the
Directors decision to the Construction Workforce Board.
Sec.
38-83.5. City Sponsored Recruitment of Construction Workforce.
The
City shall partner with Workforce Preparedness Programs, Apprenticeship
Programs, Labor Unions, other construction training programs, community-based
organizations, employment referral programs and school-sponsored programs to
accomplish the goals of the Construction Employment Program. Activities to
increase resident, minority and women participation shall be conducted on a
scheduled basis and shall include:
(1)
Sponsoring workshops and events involving local minority community-based
organizations and educational institutions to promote the construction industry
and encourage residents to apply for Apprenticeship Programs and journey worker
jobs on construction projects; and
(2) Partnering with community-based
organizations, the Kansas City School District, and post secondary educational
institutions to create programs that facilitate entry into the construction
industry by providing job readiness training, construction trades awareness,
construction trades training, skills assessment testing, and increasing the
ability to pass the construction trades entrance examinations.
(3)
Establishing a First Source program intended to give the first
opportunity during the first 30 days of the 60 day notice period as described
herein to qualified residents of Kansas City, Missouri to apply, be interviewed
and be hired on City Construction Contracts.
(4)
Making a good faith effort to inform residents of Kansas City, Missouri
and minorities and women, regardless of residency, through advertisements in
media in the City and in minority or women trade association newsletters and/or
minority or women owned media at least 60 calendar days prior to the issuance
of an invitation for bid for a particular City Construction Contract, if deemed
practical by the City to do so, of:
(1.)
the name of the project;
(2.)
the nature of the work to be performed;
(3.)
the crafts anticipated to be required for the work; and,
(4.)
locations within the City of Kansas City, Missouri and a website in
which residents of the City may register for consideration for employment on
the City Construction Project.
Failure of the City to advertise shall not invalidate any solicitation
or contract .
(5) Conducting real and substantial
recruitment efforts, both oral and written, targeting resident, minority and
women community-based organizations, schools with a significant minority
student population, and training organizations serving the recruitment area;
and
(6) Establishing and maintaining a current
list of resident, minority and women recruitment sources, providing written
notifications to the recruitment sources of available employment opportunities,
and maintaining records of the notices submitted to the organizations and any
responses thereto; and
(7) Collaborating with Labor Unions,
contractors and their respective associations to determine information that may
be reasonably required of prospective workers.
(8) Collecting and furnishing such information
to Labor Unions, contractors and their respective associations for their use in
identifying qualified residents of the City desiring work on City Construction
Contracts.
(9) Establishing a pre-qualification program
for subcontractors whereby subcontractors can provide employment data to the
Director evidencing that they meet or exceed the Minimum Construction
Employment Goals for the purpose of being included in a Subcontractor Directory
on HRDs website to assist Construction Contractors in identifying those
subcontractors that can assist the Construction Contractor in meeting the
Construction Employment Goals.
(10) Submitting an Affirmative Action Monthly
Report (AAMR) to the Construction Workforce Board by the end of each month for
the previous month stating the number of resident, minority and women
construction labor hours performed by Construction Contractors, in a format
acceptable to the Construction Workforce Board.
Sec.
38-83.6. Incentive Construction Employment Goals.
The
Director, in consultation with the Construction Workforce Board, is authorized
to provide public recognition to Construction Contractors on a City
Construction Contract that achieve the minority and female Incentive
Construction Employment Goals of the Construction Employment Program.
Sec.
38-83.7. Monitoring and Compliance with Construction Employment Program.
(a) At
the time a bid is submitted, the Construction Contractor shall submit a
Construction Hours Affidavit in a format determined by the Director stating the
City Construction Contractors intent to meet or exceed the Minimum
Construction Employment Goals while performing the City Construction Contract
or request a waiver.
(b) After
the City Construction Contract has been awarded, but before construction
begins, the Director may require the selected Construction Contractor to meet
with the Director or his/her designee for the purpose of discussing first
opportunity given to residents of the City, the Construction Employment Goals
for minority and women workers, how the Construction Contractor will endeavor
in good faith to meet the Minimum Construction Employment Goals, and any
problems that may affect the Construction Contractors ability to employ
residents of the City or achieve the Construction Employment Goals.
(c) After completion of work on the City Construction
Contract but before release of retainage, final acceptance and closeout, the
Construction Contractor shall provide to the Director, in a format approved by
the Director, the payroll records of the Construction Company and its
subcontractors on the City Construction Contract, for the economic quarter
years spanning the duration of the City Construction Contract: (i) the total
number of hours of work performed by minorities and women on the City
Construction Contract and company-wide on all projects in the Kansas City MSA
as compared to the total number of hours of work performed by all workers on
the City Construction Contract and company-wide on all projects in the Kansas
City MSA and (ii) the hours worked per capita by minorities and women as
compared to the hours worked per capita by all other workers in the workforce.
(d) All City Contractors are expected to comply with all
federal laws, including those of the Immigration and Naturalization Service and
the Department of Homeland Security. Only those hours performed by workers in
compliance with federal law may be counted towards the Construction Employment
Goals.
(e) On
all City Construction Contracts, the Director shall have access, at all
reasonable times, to all books, papers, records, reports or accounts in
possession of or under the control of all Construction Contractors and
subcontractors as may be reasonably necessary to ascertain compliance with this
Ordinance, and all Construction Contractors and their respective subcontractors
shall furnish such further information as may be required of such person within
ten working days of the date it is so requested in writing. The Construction
Contractor shall require all its subcontractors to comply with the requirements
of this subsection.
(f) The
Director shall be authorized to conduct on-site audits and records inspections
of any Construction Contractor and subcontractor without prior notice as may be
necessary to ascertain compliance with this Ordinance. The Construction
Contractor shall require all its subcontractors to comply with the requirements
of this subsection.
(g) The
Construction Contractor is required to obtain and retain documentation
establishing the residence of record for any person working on a Construction
Project. The documentation must show an address within the City and may be one
of the following:
(1) drivers license or identification card
issued by a government or governmental agency with a photograph of the holder;
or
(2) voters Registration Card; or
(3) utility bill showing the account holders
name and address; or
(4) valid United States Passport; or
(5) document falling within any other category
that the Director determines sufficiently establishes residency.
(h) Monthly
Reporting: The Construction Contractor performing work on a City Construction
Contract shall submit a Contractor Affirmative Action Monthly Report (CAAMR) to
the Director by the 15th of each month through the duration of the
City Construction Contract. The Contactor Affirmative Action Monthly Report
shall state the number of resident, minority and women construction labor hours
performed on site per trade, and shall be submitted in a format determined by
the Director.
Sec.
38-83.8. Equal Employment Standards.
(a) All City Construction Contracts shall contain language requiring as a condition thereof
that all Construction Contractors will adhere to the Equal Opportunity Clause
set forth in the Kansas City Code of City Ordinances, Chapter 38, Article III,
Section 38-132. The Equal Opportunity Clause shall include, at a minimum, the
following provisions:
(1) The Construction Contractor will not
discriminate against any employee or applicant for employment because of race,
color, religion, sex, national origin, disability or sexual orientation.
(2) The Construction Contractor will take
affirmative action to ensure that employees are treated fairly during
employment without regard to their race, color, religion, sex, national origin,
disability or sexual orientation. Such action shall include, but not be limited
to the following: Employment, promotion, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
(3) The Construction Contractor agrees to post
in conspicuous places, available to employees and applicants for employment,
notices to be provided setting forth the provisions of the nondiscrimination
clause.
(b) The
Construction Contractor will, in all solicitations or advertisements for
employees placed by or on behalf of the Construction Contractor, state that all
qualified applicants will receive consideration for employment without regard
to race, color, religion, sex, national origin, disability or sexual
orientation.
(c) In
the event of the Construction Contractor's noncompliance with the
nondiscrimination clauses of this contract or with any of the said rules,
regulations, or orders, the contract may be canceled, terminated, or suspended
in whole or in part and the Construction Contractor may be declared ineligible
for further contracts with the City. A Construction Contractor may appeal any
such determination to the Construction Workforce Board.
Sec. 38-83.9.
Complaint Procedures.
The
City shall provide complaint procedures set forth in the Code of City
Ordinances, Chapter 38, Article III, Section 38-132 to all persons working
under the Construction Employment Program.
Sec.
38-83.10. Remedies.
(a)
If the Director shall find after investigation that a Construction Contractor
has not met the Construction Employment Goals and the Construction Contractor
has not made a good faith effort to meet the goals, the Director may:
(1) recommend the assessment of liquidated
damages, as specified in the City Construction Contract;
(2) recommend that the Construction Contractor
be declared ineligible to receive any City Construction Contract for a period
of time up to one year.
(b)
Any recommendation by the Director to assess liquidated damages or to
bar a Construction Contractor from bidding on City Construction Contracts may
be appealed by the Construction Contractor to the Construction Workforce Board.
Sec. 38-83.11. Construction
Workforce Board.
(a) There
is hereby established the Kansas City Construction Workforce Board for the
purpose of offering community input to the Director; reporting issues and
recommendations to the City Manager and City Council concerning the construction
employment program; hearing certain appeals of determinations and
recommendations of the Director; and making certain recommendations to the City
Council. The Construction Workforce Boards responsibilities specifically
include:
(1) Meeting quarterly in a forum open to the public, to review
the monthly workforce reports including the Directors AAMR, monitor compliance
with the provisions of the Ordinance, and make recommendations to the Director
regarding enforcement of this Ordinance; and
(2) Hearing appeals brought by Construction Contractors after a
determination by the Director that a Construction Contractor has failed to make
a good faith effort to meet the resident, minority and women workforce goals
and has recommended a remedy authorized by this Ordinance.
(b) The
Construction Workforce Board shall be composed of eleven members and ten
alternates proposed by the following groups to represent the following groups
and appointed by the mayor, as follows:
(1) One member and one alternate representing the local labor
organizations/unions;
(2) One member and one alternate representing the school
sponsored training programs;
(3) One member and one alternate representing the workforce
referral organizations;
(4) Two members and two alternates representing the community;
(5) One member and one alternate representing the Heavy
Constructors Association;
(6) One member and one alternate representing the Builders
Association;
(7) One member and one alternate representing the MBE Contractors
Coalition (Minority Contractors Association (MCA) and Kansas City Hispanic
Association Contractors Enterprise (KCHACE));
(8) One member and one alternate representing WBE Contractors
Coalition (Women Construction Owners and Executives and National Association of
Women in Construction),
(9) One member and one alternate representing the subcontractor
associations (Sheet Metal Contractors National Association (SMACNA), National
Electrical Contractors Association (NECA), and Mechanical Contractors
Association (MCA))
(10) Chairperson appointed by the mayor.
(c) Board
members serve at the leisure of the constituents each board member represents
and may be recalled by such constituents or the mayor at anytime .
(d) In the
event a board member is unable to attend a meeting of the board or has a
conflict of interest with regard to a particular contract or issue, the
alternate shall temporarily serve in such member's stead. The term of an
alternate shall expire at the expiration of the term of the board member.
(e) The
following are ineligible to serve on the Construction Workforce Board:
(1) Members of the City Council; and
(2) Employees of the City.
(f) In the
event a board member becomes ineligible or is unable to serve on the
Construction Workforce Board after appointment, the represented group shall
nominate and the mayor shall appoint another person to fill the vacancy for the
remainder of the board members unexpired term.
(g) In the
event a Board member has a conflict of interest in a contract or issue that
comes before the board, the member shall be temporarily replaced by the
alternate. In the event an alternate has a conflict of interest in a bid,
contract or issue that comes before the Construction Workforce Board, the
alternate shall recuse himself.
(h) In the
event the chairperson is not in attendance at any Construction Workforce Board
meeting, a majority of board members shall select a member to act as chairman
for that meeting.
(i) Six
members of the Construction Workforce Board shall constitute a quorum.
(j) The
Construction Workforce Board shall adopt rules to govern the exercise of their
duties.
Sec.
38-83.12. Appeals to the Construction Workforce Board.
(a) Any Construction Contractor may appeal to the Construction
Workforce Board:
(1) Determinations of the Director that a Construction Contractor
did not meet the Construction Employment Goals and did not use good faith
efforts to meet the goals; and
(2) The Directors recommendation of assessment of liquidated
damages pursuant to this Workforce Ordinance; and
(3) The Directors recommendation that a Construction Contractor
be declared ineligible to receive any City Construction Contract for a period
of time up to one year.
(b) Appeals
shall be made to the Construction Workforce Board by filing with the Director
within ten (10) working days after notice of the Director's determination, a
written request for review by the Construction Workforce Board, stating the
grounds of such appeal with specificity. The Director shall promptly forward to
the chairperson and members of the Construction Workforce Board a copy of any
appeal.
(c) Failure to
file a timely appeal shall constitute a waiver of the right of a Construction
Contractor to appeal the Director's determination and such person shall be
estopped to deny the validity of any order, recommendation, determination or
action taken by the Director which could have been timely appealed.
(d) The
Construction Workforce Board shall have authority to require that a party first
make a written submission of its appeal prior to permitting a hearing and may
summarily dispose of those appeals that it determines to be frivolous and
without merit.
(e) After
receiving an appeal from the City Construction Contractor, the Construction
Workforce Board shall set a date upon which a hearing shall be held by the
Construction Workforce Board and shall notify all parties of the date thereof.
The notice of hearing shall be served upon the parties at least ten (10)
calendar days prior to the date of the hearing. A copy of the Directors
determination shall be attached to each such notice. A hearing shall be set no
later than twenty-one (21) calendar days after receipt of the request for
appeal by the Director.
(f) The
hearing shall be conducted under rules adopted by the Board. The Board may
subpoena witnesses, compel their attendance, administer oaths, take the
testimony of persons under oath, and require the production for examination any
books, papers or other materials relating to any matter under investigation or
in question before the Board.
(g) The
Board shall cause all proceedings before it to be either audio recorded or held
before a certified court reporter.
(h) The Board
shall have authority to affirm, modify or reverse the determination of the
Director.
Sec.
38-83.13. Severability.
If
any section, subsection, clause, or provision of this ordinance is deemed to be
invalid or unenforceable in whole or in part, Sections 38-83.1 through
38-83.12 shall be deemed amended to delete or modify, in whole or in part, if
necessary, the invalid or unenforceable subsection(s), clause(s), provision(s)
or portion(s) thereof, and alter the balance of those same sections in order to
render the same valid and enforceable.
Section
2. This ordinance takes effect on July 1, 2007.
__________________________________________________
Approved
as to form and legality:
___________________________________
Brian
T. Rabineau
Assistant City Attorney