COMMITTEE SUBSTITUTE
FOR ORDINANCE NO. 130041
Repealing various provisions of
Chapters 2, Code of Ordinances; repealing and reenacting various provisions of
Chapter 38, Code of Ordinances; enacting a new Chapter 3, Code of Ordinances,
dedicated to city contracting processes and programs; and establishing an
effective date.
BE IT ORDAINED
BY THE COUNCIL OF KANSAS CITY:
Section 1. That
Chapter 2, Article XI, Division 1, Code of Ordinances is hereby repealed in its
entirety and such division reserved for future use.
Section 2. That
the following provisions of Chapter 2, Article XI, Division 3, Code of
Ordinances, are hereby repealed in their entirety: Section 2-1645, Execution
and filing of contracts and leases; Section 2-1648, Leases of city-owned real
estate; Section 2-1649, Debarment of bidders for public works contracts; and
Section 2-1653, Prompt payment.
Section 3. That
the following provisions of Chapter 2, Article XI, Division 6, Code of
Ordinances, are hereby repealed in their entirety: Section 2-1753, Making
purchases and term-supply and service contracts; Section 2-1754, Bonds and
insurance; Section 2-1755, Requisitions; Section 2-1756, Reverse auction;
Section 2-1757, Definitions of terms used in sections 2-1758 through 2-1763;
Section 2-1758, Cooperative purchasing—Authorized; Section 2-1759, Same—Sale,
acquisition or use of supplies; Section 2-1760, Same—Cooperative use of
supplies or services; Section 2-1761, Same—Joint use of facilities; Section
2-1762, Same—Supply or personnel and services; Section 2-1763, Same—Cooperative
purchasing not to adversely affect city employees; Section 2-1764, Employee
conflict of interest; Section 2-1765, Gratuities and kickbacks; Section 2-1766,
Contingent fees; Section 2-1767, Contemporaneous employment of city employee by
person contracting with city; Section 2-1768, Waivers from conflict of interest
and contemporaneous employment prohibitions; Section 2-1769, Use of
confidential information; Section 2-1770, Sanctions for violation of ethical
standards; and Section 2-1771, Recovery of value transferred or received in
breach of ethical standards.
Section 4. That
Chapter 2, Article XI, Division 7, Code of Ordinances is hereby repealed in its
entirety and such division reserved for future use.
Section 5. That
Chapter 38, Code of Ordinances, is hereby repealed in its entirety, and a new
Chapter 38, Code of Ordinances, is enacted in lieu thereof, to read as follows:
CHAPTER 38
HUMAN RELATIONS
ARTICLE I. IN
GENERAL
DIVISION 1.
DEFINITIONS
Sec. 38-1. Definitions.
(a) The
following words, terms and phrases, when used in this chapter, shall have the
meanings ascribed to them in this section, except where the context clearly
indicates a different meaning or an alternative definition has been provided:
(1) Age means an age of 40 or more years, except
that it shall not be an unlawful employment practice for an employer to require
the compulsory retirement of any person who has attained the age of 85 and who,
for the two-year period immediately before retirement, is employed in a bona
fide executive or high policymaking position, if such person is entitled to an
immediate nonforfeitable annual retirement benefit from a pension, profit
sharing, savings or deferred compensation plan, or any combination of such
plans, of the employer, which equals, in the aggregate, at least
$344,000.00.
(2) City means the City of Kansas City,
Missouri.
(3) Commission means the city human rights
commission.
(4) Complainant means any person claiming injury by the
alleged violation of Chapter 213, RSMo, or of this Chapter, including persons
who believe they will be injured by an unlawful discriminatory practice that is
about to occur.
(5) Complaint means a verified written statement of
facts and circumstances, including dates, times, places and names of persons
involved in any alleged violation of any provision of Chapter 213, RSMo, or of
this Chapter.
(6) Contract means any contract to which the city shall be
a contracting party, except the following:
a. Personal services contracts.
b. Emergency requisitions for goods, supplies or services.
c. Impressed accounts in the nature of petty cash funds.
d. Contract or lease, the cost of which will not exceed
$300,000.00.
(7) Covered multifamily dwelling means a building
consisting of four or more units if the building has one or more elevators or a
ground floor unit in a building consisting of four or more units.
(8) Department means the department of human
relations.
(9) Director means the director of the human
relations department or their delegate.
(10) Disability means with respect to employment, a person
who is otherwise qualified and who, with reasonable accommodation, can perform
the essential functions of the job in question. Generally, a person with a
disability is any person who:
a. Has a physical or mental impairment which substantially
limits one or more major life activities;
b. Has a record of having such impairment; or
c. Is regarded as having such an impairment.
(11) Dwelling means any building, structure or portion
thereof which is occupied as, or designed or intended for occupancy as, a
residence by one or more families, and any vacant land which is offered for
sale or lease for the construction or location thereon of any such building,
structure or portion thereof.
(12) Employee means any individual employed by an
employer, but does not include an individual employed by his parents, spouse or
child or any individual employed to render services as a domestic in the home
of the employer.
(13) Employer includes any person employing six or more
employees.
(14) Employment agency means any person, agency or
organization, regularly undertaking, with or without compensation, to procure
opportunities for employment or to procure, recruit, refer or place
employees.
(15) Familial status means one or more individuals, who
have not attained the age of 18 years, being domiciled with:
a. A parent or another person having legal custody of such
individual or individuals; or
b. The designee of such parent or other person having such
custody, with the written permission of such parent or other person. The
protection afforded against discrimination on the basis of familial status
shall apply to any person who is pregnant or is in the process of securing
legal custody of any individual who has not attained the age of 18 years. No
provision in this chapter regarding familial status shall apply to housing for
older persons, as defined in section 3607 of title 42 of the United States Code
Annotated.
(16) Family includes a single individual.
(17) Franchise holder means any individual,
partnership, corporation, association or other entity, or any combination of
such entities, holding a franchise hereafter granted or renewed by the city.
(18) Gender identity means the actual or perceived
appearance, expression, identity or behavior of a person as being male or
female, whether or not that appearance, expression, identity or behavior is
different from that traditionally associated with the person's designated sex
at birth.
(19) Labor organization means any organization which
exists for the purpose in whole or in part of collective bargaining or for
dealing with employers concerning grievances, terms or conditions of
employment, or for other mutual aid or protection in relation to
employment.
(20) Performance of work means the furnishing of any
personal service, labor, materials or equipment used in the fulfillment of a
contractor's obligation under a city contract.
(21) Person includes one or more individuals,
corporations, partnerships, associations, labor organizations, legal
representatives, mutual companies, joint stock companies, trusts,
unincorporated organizations, trustees, trustees in bankruptcy, receivers,
fiduciaries and other organizations; except the term "person" does
not include any local, state or federal governmental entity.
(22) Prohibited dress code means a set of rules
governing, prohibiting or limiting access to a place or business, or portion
thereof, defined herein as a "public accommodation" because of any of
the following:
a. The wearing of jewelry, the manner in which jewelry is worn
or the combination of items of jewelry worn,
b. The wearing of a garment or headdress which is generally
associated with specific religions, national origins or ancestry,
c. The length of the sleeve of a shirt or the leg of a pair of
pants or shorts is too long, except that nothing herein shall be construed to
prohibit a dress code that requires the wearing of a shirt,
d. The style, cut or length of a hair style,
e. The colors of the garments,
f. In conjunction with a major Kansas City sporting event the
wearing of athletic apparel which displays either a number, a professional or
college team name or the name of a player;
g. The wearing of tee-shirts, except that nothing herein shall
be construed to prohibit a dress code that requires such tee-shirts to have
sleeves, or to prohibit a dress code that does not allow undershirts,
undergarments, or tee-shirts of an inappropriate length. Designer tee-shirts,
which are fitted and neat, cannot be banned.
(23) Public accommodation means any place or business
offering or holding out to the general public goods, services, privileges,
facilities, advantages or accommodations for the peace, comfort, health,
welfare and safety of the general public, or providing food, drink, shelter,
recreation or amusement, including but not limited to:
a. Any inn, hotel, motel or other establishment which provides
lodging to transient guests, other than an establishment located within a
building which contains not more than five rooms for rent or hire and which is
actually occupied by the proprietor of such establishment as his residence.
b. Any restaurant, tavern, cafeteria, lunchroom, lunch counter,
soda fountain or other facility principally engaged in selling food for
consumption on the premises, including but not limited to any such facility
located on the premises of any retail establishment.
c. Any gasoline station, including all facilities located on the
premises of such gasoline station and made available to the patrons thereof.
d. Any motion picture house, theater, concert hall, sports
arena, stadium or other place of exhibition or entertainment.
e. Any public facility owned, operated or managed by or on
behalf of this city or any agency or subdivision thereof, or any public
corporation; and any such facility supported in whole or in part by public
funds.
f. Any establishment which is physically located within the
premises of any establishment otherwise covered by this definition or within
the premises in which is physically located any such covered establishment, and
which holds itself out as serving patrons of such covered establishment.
g. Any institution, association, club or other entity that has
over 250 members, provides regular meal service, and regularly receives payment
for meals, beverages, dues, fees, the use of its facilities or services
directly or indirectly from or on behalf of nonmembers in furtherance of trade
or business.
(24) Redevelopment area means a tax increment
redevelopment area as defined in section 99.805(11); RSMo, a planned industrial
expansion project area as defined in section 100.300, et seq., RSMo; an urban
renewal project area or land clearance project area as defined in section
99.300, et seq., RSMo; any area under the control of the port authority of
Kansas City, Missouri, or subject to a contract, lease or other instrument to
which the port authority is a party; or an area determined by the city to be blighted
pursuant to chapter 353, RSMo.
(25) Rent means to lease, sublease, let or otherwise
grant for a consideration the right to occupy premises not owned by the
occupant.
(26) Respondent means any person against whom it shall
be alleged by complaint or identified during the course of an investigation
that such person has violated, is violating or is about to violate any
provision of Chapter 213, RSMo, or this Chapter.
(27) Sex shall include sexual harassment.
(28) Sexual orientation means actual or perceived
heterosexuality, homosexuality or bisexuality.
(29) Subcontractor means any individual, partnership,
corporation, association or other entity, or other combination of such entities,
which shall undertake, by virtue of a separate contract with a contractor, to
fulfill all or any part of any contractor's obligation under a contract with
the city, or who shall exercise any right granted to a franchise holder, and
who has 50 or more employees exclusive of the parents, spouse or children or
such subcontractor.
(30) Unlawful discriminatory practice means any
discriminatory practice as defined and prohibited by sections 38-103, 38-105,
38-107, 38-109, 38-111 and 38-113.
Section 38-2---38-20.
Reserved.
ARTICLE II. ADMINISTRATION
DIVISION 1. ENFORCEMENT
Sec.
38-21. Powers and duties of director.
(a) The
director is hereby charged with administration and enforcement of all sections
of this chapter and is hereby authorized and empowered to do the following:
(1) Rules and regulations. To adopt, amend and
enforce rules and regulations relating to any matter or thing pertaining to the
administration of this chapter.
(2) Complaint investigation. To receive, investigate
and, upon finding probable cause on any complaint of violation of Chapter 213,
RSMo, to bring such complaint before the human rights commission. If the
director finds probable cause to believe that a violation of this chapter has
occurred, he may refer the matter to the city counselor's office for
prosecution in municipal court. Any staff assigned to assist the commission
shall be supervised by the director of human relations. The director shall not
have the power to process complaints of discrimination brought against the city
and shall defer any such complaints to the state commission on human rights or
any appropriate federal agency for processing.
(3) Authority regarding discrimination within city
administration. To investigate and recommend to the city manager any
policy changes or specific actions that the director determines are necessary
to ensure that the city administration is in compliance with the provisions of
this chapter or with state and federal discrimination laws.
(4) Initiation of complaints. Whenever the director
has reasonable cause to believe that an unlawful discriminatory practice has
occurred, he may initiate a complaint alleging violation of any section Chapter
213, RSMo, or of this chapter.
(5) Compliance investigation. To investigate, survey
and review any and all affirmative action programs, city contracts and
franchises which are subject to this chapter and to take such action with
respect thereto as shall ensure compliance with this chapter.
(6) Conciliation. To attempt to eliminate any
unlawful discriminatory practice or any other violation of the terms of this
chapter by means of conference, conciliation, persuasion and negotiation and to
enter into conciliation agreements.
(7) Authority to dismiss complaints. To dismiss any
complaint upon finding such complaint to be frivolous or without merit on its
face or upon a finding that the allegedly unlawful discriminatory practice has
been eliminated through conciliation.
Sec. 38-23. Complaint procedure.
(a) Filing of complaint.
(1) Any
person claiming injury by an allegedly unlawful discriminatory practice may, by
himself or by his attorney, make, sign and file a verified written complaint
with the director on forms provided by the director, which shall state the name
and address of the person alleged to have committed the unlawful discriminatory
practice complained of and which shall set forth the particulars thereof and
contain such other information as may be required by the director for the
investigation of the complaint.
(2) Any
complaint filed pursuant to Chapter 213, RSMo, or this chapter must be filed
within 180 days after the alleged unlawful discriminatory practice was
committed.
(b) Investigation.
After the filing of any complaint, the director shall:
(1) During
the period beginning with the filing of such complaint and ending with the
notice of public hearing before the commission, to the extent possible, engage
in conciliation with respect to such complaint. Any agreement reached during
these conciliation efforts shall conform to the requirements of subsection (d)
of this section.
(2) Promptly
serve notice upon the complainant acknowledging and advising the complainant of
the time limits and choice of forums provided under Chapter 213, RSMo, and this
chapter.
(3) Promptly
serve notice on the respondent or the person charged with a discriminatory
practice advising of his or her procedural rights and obligations under this
chapter, together with a copy of the complaint.
(4) Commence
investigation of the complaint within 30 days of the receipt of the complaint.
(5) For
housing and public accommodation complaints, complete the investigation of the
complaint within 100 days unless it is impracticable. If the director is unable
to complete the investigation within 100 days, the director shall notify the
complainant and the respondent in writing of the reasons for not doing so.
(6) Make
final administrative disposition of a housing or public accommodations
complaint within one year of the date of receipt of a complaint unless it is
impracticable to do so, in which case the director shall notify the complainant
and respondent in writing of the reasons for not doing so.
(c) No probable cause
finding. If it shall be determined after such investigation that no
probable cause exists for crediting the allegations of the complaint, the
director shall cause to be issued and served upon all parties written notice of
such determination.
(d) Probable cause finding;
conciliation.
(1) If it
shall be determined after such investigation that probable cause exists for
crediting the allegations of the complaint, the director shall immediately
endeavor to eliminate the unlawful discriminatory practice complained of by
conference, conciliation and persuasion. Each conciliation agreement shall
include provisions requiring the respondent to refrain from the commission of
such allegedly unlawful discriminatory practice in the future and may contain
such further provisions as may be agreed upon by the complainant and the
respondent subject to the approval of the director. The director shall not
disclose what has transpired in the course of such endeavors and shall not make
or maintain a public record of such endeavors as the term "public
record" is defined in Chapter 610, RSMo.
(2) If the
respondent, the complainant and the director agree upon conciliation terms, the
director shall compile the terms of the conciliation agreement for the
signature of the complainant, respondent and director. Each conciliation
agreement shall be made public unless the complainant and respondent otherwise
agree and the director determines that disclosure is not legally required and
is not required to further the purposes of this chapter.
(e) Failure to conciliate;
hearing or prosecution. If the director believes that he has failed to
eliminate an allegedly unlawful discriminatory practice through conciliation,
he shall cause to be issued and served a written notice thereof. If the complaint
alleges a discriminatory practice prohibited by this chapter, the director may
refer the matter to the city counselor for possible prosecution in municipal
court. If the complaint alleges a discriminatory practice prohibited by Chapter
213, RSMo, the director shall refer the matter to the commission for hearing.
Sec. 38-25. Hearing or civil
action.
(a) Hearing
notice. Upon referral from the director of a matter to be set for hearing,
the commission shall set a date upon which a hearing shall be held by a hearing
examiner appointed by the city and shall notify all parties of the date
thereof. The notice shall be served upon the parties at least 20 days prior to
the date of the hearing. A copy of the complaint shall be attached to each such
notice.
(b) Election to file civil
action in housing cases.
(1) When a
written notice of hearing on a complaint of housing discrimination is issued, a
complainant or respondent may elect to have the claims asserted in that
complaint decided in a civil action, in accordance with Section 213.076, RSMo.
Written notice of an election made under this subsection shall be filed with
the commission with notice to all parties within 20 days of the date on which
the notice of hearing was mailed.
(2) If
such an election is made, the director shall request that the city counselor
file suit on behalf of the city and the complainant unless the complainant
chooses to bring an action through his or her own private counsel. Within 30
days of the election, the city counselor shall commence, maintain and pay the
costs of a civil action in the name of the city and any complainant not
represented by private counsel seeking relief as authorized by Chapter 213,
RSMo; however, before such suit is filed by the city on behalf of any complainant,
the complainant will agree in writing that any costs or attorneys' fees
recovered in such an action will be remitted to the city. The complainant shall
have no liability to the city for costs and attorneys' fees except to the
extent that such costs and attorneys' fees are awarded by the court to the
complainant and paid by a respondent (defendant). Should the city counselor
prevail in such suit, he is hereby authorized and directed to seek and recover
costs and attorneys' fees. Any attorneys' fees or costs recovered by the city
or by a complainant and remitted to the city shall be paid into the general
fund of the city.
(c) Record of proceedings.
The hearing examiner shall cause all proceedings before it to be either tape
recorded or held before a certified court reporter.
(d) Hearing procedure.
The hearing shall be conducted in accordance with Chapter 536, RSMo and with
rules adopted by the commission. The commission or the hearing examiner
appointed to hear a matter may subpoena witnesses, compel their attendance,
administer oaths, take the testimony of any person under oath, and require the
production for examination of any books, papers or other materials relating to
any matter under investigation or in question before the commission.
Sec. 38-27. Discovery.
In any case which is before
the commission, any party may obtain discovery in the same manner, upon and
under the same conditions and upon the same notice and other requirements as is
or may hereafter be provided for with respect to discovery in civil actions by
rule of the supreme court of the state for use in circuit court. The designated
hearing examiner for the human rights commission shall have the same
responsibilities and authority with respect to discovery as is vested in
circuit judges by supreme court rule. Enforcement of discovery shall be by the
same methods, terms and conditions as provided by supreme court rule in civil
actions in the circuit court; except that no order issued pursuant to such rule
which requires a physical or mental examination, permits entrance upon land or
inspection of property without permission of the owner, or purports to hold any
person in contempt shall be enforceable except upon order of the circuit court
after notice and hearing. The hearing examiner may limit discovery as is
appropriate in each case.
Sec. 38-29. Penalty for refusal or failure to obey subpoena.
If any person fails, neglects
or refuses to obey all the terms of any subpoena or subpoena duces tecum issued
by the human rights commission or its designated hearing examiner, such failure
shall be dealt with as provided by the applicable section of Chapter 536, RSMo.
Sec. 38-31. Decision and order
by commission.
(a) The hearing examiner
shall make findings of fact and conclusions of law and shall recommend to the
commission an order granting any relief that is necessary to remedy any
discrimination found and which is consistent with Section 213.075, RSMo, or
dismissing the complainant as to the respondent, in accordance with such
findings. The commission or a panel of at least three members of the commission
shall review the record, findings and recommended order of the hearing
examiner. The commission or panel shall thereafter accept or amend the
recommended order, which shall become the order of the commission. All orders
shall be served on the complainant and respondent and such other public officers
as the commission deems proper.
(b) The order of the
commission shall not become final for appeal purposes until it is filed with
and approved by the state commission on human rights, in accordance with the
procedures set forth in Section 213.135, RSMo.
(c) After rendition of the
commission's decision on a contract compliance or affirmative action matter,
the contracting officer shall serve upon the respondent a copy of such order
and decision. The respondent shall have 30 days after delivery of the order and
decision to demonstrate to the director willingness to comply with the terms
and conditions of such order, failing which the contracting officer shall
proceed to cancel, terminate or suspend the contract, or declare the contractor
ineligible to receive any city contract or franchise for a period of one year,
as such order may require. Willingness of the contractor to comply with such
order may be evidenced by his or her written agreement to comply with the terms
and conditions set forth in the order.
Sec. 38-33. Confidentiality of statements and documents.
No documents which have been
submitted nor anything which has been said or done during the course of a
conciliation endeavor or as a result of an affirmative action program
submission shall be made public or used as evidence in any subsequent
proceedings without the written consent of the parties concerned, except as
such statements or documents are public records as defined by state law or
except when such statements or documents are used as evidence before a hearing
examiner for the human rights commission.
Sec. 38-35. Suspension or revocation of business license.
Upon the final determination
of any violation of this chapter, the license of such violator to do business
in this city may be suspended for up to 30 days; and, upon a third final
determination of any violation of this chapter within five years, the license
of such person to do business in this city shall be revoked.
Secs. 38-36—38-40. Reserved.
DIVISION 2. HUMAN RIGHTS
COMMISSION
Sec. 38-41. Establishment;
membership.
(a) There shall
be a human rights commission, formerly known as the civil rights board, which
shall be an agency as such term is defined in Section 536.010, RSMo. Such
commission shall comprise seven members, including a chairperson, to be
appointed by the mayor. The commission shall be a local commission as
authorized by Sections 213.020 and 213.135, RSMo, and as such shall have the
power and authority to hear complaints of violations of Chapter 213, RSMo, in
accordance with procedures set forth in Chapter 213, RSMo, and in this chapter.
(b) All members shall serve
without compensation and shall serve initial staggered terms at the discretion
of the council and mayor of three years for three members, two years for three
members, and one year for one member; provided that all members shall continue
in office until their respective successors shall have been appointed and
qualified. In the event of death or resignation of any appointee, a
successor shall be appointed by the original appointing authority to serve
during the unexpired portion of his or her term.
Sec. 38-43. Powers and
duties.
(a) The
commission may adopt rules of procedure consistent with Chapters 213 and 536,
RSMo, and this chapter.
(b) The
commission shall prepare an annual report to be presented to the mayor and
council concerning the conditions of minority groups in the city, with special
reference to discrimination, civil rights, human relations, hate group
activity, bias crimes and bias practices and attitudes among institutions and
individuals in the community. The report may also include other social and
economic factors that influence conditions of minority groups, as well as the
causes of these conditions and the effects and implications to minority groups
and the entire city. In preparation for the report the commission may conduct hearings and
conduct whatever other research is necessary. The report shall include
appropriate recommendations to the mayor and the council.
(c) The commission shall form task forces as
follows:
(1) The
commission shall form task forces including: youth, business, media, education,
law enforcement, religion, labor, gay and lesbian issues, metropolitan area
cooperation, and others as may be deemed appropriate.
(2) One
member of each task force may be appointed from each councilmanic district,
that member to be agreed upon jointly by the councilmembers from that district.
Councilmembers may recommend additional members as appropriate.
(3) Except
as provided in subsection (c)(2) of this section, the chairperson of the
commission shall appoint the chairs and members of the task forces.
(4) The
task forces shall consist of no more than 15 members except where the
commission chairperson specifically approves additional members.
(5) The
task forces will assist the commission in the preparation of the commission's
annual report to the mayor and council.
(d) The
commission is empowered to investigate hate group activity and incidents of
bias crimes and work with law enforcement agencies and others to implement
programs and activities to combat hate group activity and bias crimes.
(e) The
commission may seek information from any and all persons, agencies and
businesses, in both the public and private sectors, to identify and investigate
problems of discrimination and bias as they affect the citizens of the city
either directly or indirectly.
(f) The
commission may cooperate with public and private educational institutions at
primary, secondary and post-secondary levels to foster better human relations
among the citizens of the city and within the metropolitan Kansas City area.
(g) The
commission may work with civil rights organizations, community organizations,
law enforcement agencies, school districts and others to collect and review
data relating to patterns of discrimination, bias crimes, hate group activity,
and general issues of civil and human rights.
(h) The
commission may conduct studies, assemble pertinent data, implement educational
programs and organize training materials for use by the commission to assist
civil and human rights agencies, neighborhood organizations, educational
institutions, law enforcement agencies, labor unions and businesses and others
to prevent discrimination.
(i)
The commission may serve as an advocate to prevent discrimination and bias
crimes.
(j) The
commission chairperson may appoint such committees from its membership or other
citizens to fully effectuate the purpose of this chapter.
(k) The
commission is empowered to hold hearings regarding issues of general or
specific civil and human rights affecting the citizens of the city, to review
decisions of hearing examiners appointed by the city to hear charges of
violations of Chapter 213, RSMo, to administer oaths, and to take the testimony
of any person under oath.
(l) Based upon
its hearings or those held by its hearing examiners, the commission shall issue
such findings as it deems appropriate under the circumstances. If the
commission finds that a respondent has engaged in an unlawful discriminatory
practice as defined in Chapter 213, RSMo, the commission shall issue and cause
to be served on the respondent an order requiring the respondent to cease and
desist from the unlawful discriminatory practice. The order shall require the
respondent to take such affirmative action or award such relief as in the
commission's judgment will implement the purposes of this chapter and of
Chapter 213, RSMo, including but not limited to the assessment of civil
penalties, reinstatement, back pay, making available the dwelling or public
accommodation, actual damages, or any other relief that is deemed appropriate
and which is consistent with Chapter 213, RSMo.
(m) Should the
respondent also be a city contractor, upon complaint by the human relations
department and after hearing duly held, the commission shall make findings of
fact and conclusions of law; and when it finds a breach of conditions of any
contract or franchise wherein compliance with this chapter is assured, it shall
make an order specifying the terms and conditions under which any contract or
franchise will be continued in force, or in the alternative shall order the
cancellation, termination or suspension of such contract or franchise, or order
that such contractor or franchise holder be ineligible to receive any city
contract or franchise for a period of one year.
(n) The chairperson
may appoint hearing review panels composed of not less three persons to review
hearings conducted by a hearing examiner regarding violations of Chapter 213,
RSMo. Panels shall be appointed on a rotating basis to ensure that all
commission members have an opportunity to review recommended findings of the
hearing examiner. Any member of the commission who has a conflict of interest
or the appearance of a conflict of interest regarding an issue to be heard by
the commission will not participate in the proceedings regarding that issue.
(o)
The commission is empowered to hold hearings, upon complaint of an aggrieved
party or upon an investigation by the director to determine whether the owner,
operator, agent or an employee of a business or facility within a redevelopment
area is using a prohibited dress code. Based upon its hearings, or those held
by its hearing examiners, the commission shall issue such findings as it deems
appropriate under the circumstances. If the commission finds that the owner, operator
or employee of such a business or facility has used, or is using, a prohibited
dress code, and, therefore, has engaged in an unlawful discriminatory practice
as defined in Chapter 213, RSMo, or in Section 38-113, the commission shall
issue and cause to be served on the owner, operator, agent or employee an order
requiring the owner, operator or employee to cease and desist from the use of
the prohibited dress code. The order may also require the owner, operator,
agent or employee to take further affirmative action or award such relief as in
the commission's judgment will implement the purposes of this chapter and of
Chapter 213, RSMo, including but not limited to the assessment of civil
penalties, making access available to those individuals denied access to the
public accommodation because of the use of a prohibited dress code, actual
damages, or any other relief that is deemed appropriate and which is consistent
with Chapter 213, RSMo, and Chapter 38, Code of Ordinances.
(p) The
commission shall study, advise and make other recommendations for legislation,
policies, procedures and practices of the city, other businesses entities, and
other public entities as are consistent with the purposes of this chapter.
Secs. 38-44—38-60. Reserved.
DIVISION 3. BIAS
OFFENSE REPORTING
Sec. 38-61. Reporting
responsibility.
(a) The police
department of the city shall collect and maintain information relating to
alleged crimes and ordinance violations occurring within the city in which the
evidence of the offense indicates it was motivated by bigotry or bias related
to the race, religion, sexual orientation or ethnicity of individuals or
groups. For purposes of this section the following crimes and ordinance
violations contained in the Code of Ordinances are included:
(1) Section 1-17(d) General penalty; continuing violations
(2) Section 50-9, Stalking
(3) Section 50-102, Trespass generally
(4) Section 50-124, Institutional vandalism
(5) Section 50-125, Defacing property with aerosol paint and like
materials
(6) Section 50-159, Harassment
(7) Section 50-164, Disorderly conduct
(8) Section 50-167, Disturbing the peace
(9) Section 50-168, Bodily injury—Attempting
(10) Section 50-169, Same—Inflicting
(11) Section 50-170, Assault on persons or on route to or from
school premises; disturbing school activities
(12) Section 50-171, Aggravated trespass
(13) Section 50-261, Unlawful use of weapons—generally
(14) Section 64-11, Throwing missiles
(15) Section 64-12, Throwing objects from buildings
Sec. 38-63. Reporting system.
The police
department of the city shall develop a system by which the required reporting
shall be accomplished. The reporting system shall include monthly distribution
of the information collected to the human relations department of the city, and
to the United States Department of Justice, Community Relations Service,
Central Region.
Sec. 38-65. Incident reports.
(a) Whenever
any police officer has identified a victim of an alleged bias crime or city
ordinance violation, the police department of the city shall, to the extent
known, supply the name, address and telephone number of the victim to the
director of the human relations department, acting for the human rights
commission, together with other relevant information concerning the victim.
Whenever any police officer has identified an incident that does not constitute
a crime or city ordinance violation the officer will refer the victim to the
human relations department. The director of human relations shall establish a
telephone line for citizens to call to report incidents of possible bias
incidents that are not crimes or city ordinance violations.
(b) The purposes
of this reporting are to permit the director of human relations, or other
designated party appointed by the director, acting for the human rights
commission, to:
(1) Contact the victim for the purpose of offering to help the
victim deal with the police department, prosecutors and other interested
agencies, and to help secure any other support which may be available to the
victim; and
(2) Determine whether the incident is related to a pattern of
discrimination, or if, due to bias-related tensions in the area where the
incident occurred, further incidents are likely to occur if remedial action is
not taken.
Secs. 38-66—38-100. Reserved.
ARTICLE III.
DISCRIMINATORY PRACTICES
DIVISION 1. IN
GENERAL
Sec. 38-101. Prohibited.
(a)
Discriminatory practices, as defined in sections 38-103, 38-105, 38-107,
38-109, 38-111 and 38-113, are prohibited. Any person who engages in a prohibited discriminatory practice shall be
guilty of an ordinance violation, punishable by a fine of not more than
$500.00, by imprisonment of not more than 180 days, or by such fine and
imprisonment.
(b) Nothing in sections
38-103, 38-105, 38-107, 38-109, 38-111 and 38-113 shall be read or
interpreted to require the imposition of quotas or any form of affirmative
action to remedy any past practices.
Sec. 38-103. Employment.
(a) It shall be
unlawful for any employer, employment agency or labor organization to commit
any of the following discriminatory employment practices:
(1) For any
employer to fail or refuse to hire or promote, or to discharge, any individual
or otherwise to rule or act against any individual with respect to
compensation, tenure, conditions or privileges because of such individual's
race, color, sex, religion, national origin or ancestry, disability, sexual
orientation, gender identity or age.
(2) For any
employer to limit, segregate or classify his employees in any way which would
deprive or tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee because of such individual's race,
color, sex, religion, national origin or ancestry, disability, sexual
orientation, gender identity or age.
(3) For any
employer, labor organization or employment agency or any joint labor-management
committee controlling apprenticeship training programs to deny or withhold from
any person the right to be admitted to or participate in a guidance program or
an apprenticeship training program because of race, color, sex, religion,
national origin or ancestry, disability sexual orientation or gender identity.
(4) For any
employer or employment agency to fail or refuse to refer any individual for an
employment interview or to print or circulate or cause to be printed or circulated
any statement, advertisement or publication, or to use any form of application
for employment or to make any inquiry in connection with prospective
employment, which expresses any limitation, specification or preference,
because of race, color, sex, religion, national origin or ancestry, disability,
sexual orientation, gender identity or age.
(5) For any
employer to substantially confine or limit recruitment or hiring of employees
to any employment agency, employment services, labor organization, training
school, training center or any other employee-referring source which excludes
persons because of their race, color, sex, religion, national origin or
ancestry, disability, sexual orientation, gender identity or age.
(6) For any
labor organization to in any way deprive or limit any person in his or her
employment opportunities or otherwise adversely affect his status as an
applicant for employment or as an employee, with regard to tenure,
compensation, promotion, discharge or any other terms, conditions or privileges
directly or indirectly related to employment, because of race, color, sex,
religion, national origin or ancestry, disability, sexual orientation, gender
identity or age.
(7) For any
employer, employment agency or labor organization to discharge, expel, demote,
fail to promote or otherwise rule against any person because he or she has
filed a complaint, testified or assisted in any manner in any investigation or
proceedings under this chapter.
(8) For any
person, whether or not an employer, employment agency or labor organization, to
aid, abet, incite, compel, coerce or participate in the doing of any act
declared to be a discriminatory practice under this chapter, or to obstruct or
prevent any person from enforcing or complying with the provisions of this
chapter, or to attempt to commit any act declared by this chapter to be a
discriminatory practice.
(b)
Notwithstanding any other provision of this section, it shall not be an
unlawful employment practice for an employer to apply different standards of
compensation or different terms, conditions or privileges of employment
pursuant to a bona fide seniority or merit system.
(c)
Notwithstanding any other provision of this section, it shall not be an
unlawful employment practice for a religious organization, association or
society, or any nonprofit institution or organization operated, supervised or
controlled by or in conjunction with a religious organization, association or
society, to discriminate in its employment decisions on the basis of religion,
sexual orientation or gender identity.
Sec. 38-105. Housing.
(a) It is the
policy of the city to provide, within constitutional limitations, for fair
housing throughout the corporate limits of the city. The following
discriminatory housing practices shall be unlawful:
(1) To
refuse to sell or rent after the making of a bona fide offer, or to refuse to
negotiate for the sale or rental of property offered for sale or rental, or
otherwise make unavailable or deny a dwelling to any person, because of race,
color, religion, national origin, sex, disability, marital status, familial
status, sexual orientation or gender identity.
(2) To
discriminate against any person in the terms, conditions or privileges of sale
or rental of a dwelling, or in the provision of services or facilities in
connection therewith, because of race, color, religion, national origin, sex,
disability, marital status, familial status, sexual orientation or gender
identity.
(3) To make,
print or publish, or cause to be made, printed or published, any notice,
statement or advertisement with respect to the sale or rental of a dwelling
that indicates any preference or limitation based on race, color, religion,
national origin, sex, disability, marital status, familial status, sexual
orientation or gender identity, or an intention to make any such preference,
limitation or discrimination.
(4) To
represent to any person, because of race, color, religion, national origin,
sex, disability, marital status, familial status, sexual orientation or gender
identity, that any dwelling is not available for inspection, sale or rental
when such dwelling is in fact so available.
(5) To
induce or attempt to induce any person to sell or rent any dwelling by
representations regarding the entry or prospective entry into the neighborhood
of persons of a particular race, color, religion, national origin, sex,
disability, marital status, familial status, sexual orientation or gender
identity.
(6) For a
person in the business of insuring against hazards to refuse to enter into or
discriminate in the terms, conditions or privileges of a contract of insurance
against hazards to a dwelling because of the race, color, religion, national
origin, sex, disability, marital status, familial status, sexual orientation or
gender identity of persons owning or residing in or near the dwelling.
(7) To
discriminate in the sale or rental or to otherwise make unavailable or deny a
dwelling to any buyer or renter because of a disability of:
a. That
buyer or renter;
b. A
person residing in or intending to reside in that dwelling after it is sold,
rented or made available; or
c. Any
person associated with that buyer or renter.
(8) To
discriminate against any person in the terms, conditions or privileges of sale
or rental of a dwelling, or in the provision of services or facilities in
connection with such dwelling, because of a disability of:
a. That
person;
b. A
person residing in or intending to reside in that dwelling after it is so sold,
rented or made available; or
c. Any
person associated with that person.
(b)
For purposes of this section, the term "discrimination" includes:
(1) A
refusal to permit at the expense of the disabled person reasonable
modifications of existing premises occupied or to be occupied by such person if
such modifications may be necessary to afford such person full enjoyment of the
premises; except that, in the case of a rental, the landlord may, where it is
reasonable to do so, condition permission for a modification on the renter's
agreeing to restore the interior of the premises to the condition that existed
before the modification, reasonable wear and tear excepted;
(2) A
refusal to make reasonable accommodations in rules, policies, practices or
services, when such accommodations may be necessary to afford such person equal
opportunity to use and enjoy a dwelling; or
(3) In
connection with the design and construction of covered multifamily dwellings
for first occupancy, a failure to design and construct those dwellings in a
manner that:
a. The
public and common use portions of such dwellings are readily accessible to and
usable by disabled persons. This shall include at least one building entrance
on an accessible route unless it is impracticable to do so because of the
terrain or unusual characteristics of the site;
b. All
doors designed to allow passage into and within all premises within such dwellings
are sufficiently wide to allow passage by disabled persons in wheelchairs; and
c. All
premises within such dwellings contain the following features of adaptive
design:
1. An accessible route into
and through the dwelling;
2. Light switches, electrical
outlets, thermostats and other environmental controls in accessible locations;
3. Reinforcements in bathroom
walls to allow later installation of grab bars; and
4. Usable kitchens and
bathrooms such that an individual in a wheelchair can maneuver about the space.
Compliance with the appropriate
requirements of the American National Standard for buildings and facilities
providing accessibility and usability for physically disabled persons, commonly
cited as ANSI A117.1, suffices to satisfy that the requirements of subsection
(b)(3)a. of this section are met.
(4) For
purposes of subsections (a)(7) and (8) of this section, discrimination includes
any act that would be discrimination under 42 USC 3604(f)(3) through (9).
(c) Nothing in
this section shall apply to rooms or units in dwellings containing living
quarters occupied or intended to be occupied by no more than four families
living independently of each other if the owner actually maintains or occupies
one of such living quarters as his residence, and if the dwelling contains any
rooms, except hallways, which are shared by the families or the owner.
(d) Nothing in
this section shall prohibit a religious organization, association or society,
or any nonprofit institution or organization operated, supervised or controlled
by or in conjunction with a religious organization, association or society,
from discriminating in the sale, rental or occupancy of dwellings which it owns
or operates for other than a commercial purpose on the basis of religion,
sexual orientation or gender identity, or from giving preference to persons on
those bases.
Sec. 38-107. Discrimination in commercial real estate
loans.
It shall be unlawful for any bank, building and loan association,
insurance company or other corporation, association, firm or enterprise whose
business consists in whole or in part in the making of commercial real estate
loans, to deny a loan or other financial assistance because of race, color,
religion, national origin, ancestry, sex, sexual orientation, gender identity,
handicap or familial status to a person applying therefor for the purpose of
purchasing, construction, improving, repairing or maintaining a dwelling, or to
discriminate against him in fixing of the amount, interest rate, duration or
other terms or conditions of such loan or other financial assistance, because
of the race, color, religion, national origin, ancestry, sex, sexual
orientation, gender identity, handicap or familial status of such person or of
any person associated with him in connection with such loan or other financial
assistance, or of the present or prospective owners, lessees, tenants or
occupants, of the dwellings in relation to which such loan or other financial
assistance is to be made or given.
Sec. 38-109. Discrimination
in the provision of brokerage services.
It shall be
unlawful for any person to deny any other person right to membership or
participation in any multiple listing service, real estate brokers'
organization or other service, organization or facility relating to the
business of selling or renting dwellings, or to discriminate against any person
in terms or conditions of such access, membership or participation, on account
of race, color, religion, national origin, sex, disability, marital status,
familial status, sexual orientation or gender identity.
Sec. 38-111. Additional
unlawful practices.
(a) It shall be an unlawful discriminatory practice to:
(1) Aid,
abet, incite, compel or coerce the commission of acts prohibited under this
chapter or to attempt to do so.
(2) Retaliate
or discriminate in any manner against any other person because such person has
opposed any practice prohibited by this chapter or because such person has
filed a complaint, testified, assisted or participated in any manner in any
investigation, proceeding or hearing conducted pursuant to this chapter.
(3) Discriminate
in any manner against any other person because of such person's association
with any person protected by this chapter.
Sec. 38-113. Discriminatory accommodation practices.
(a) It shall be
a discriminatory accommodation practice for any owner, agent or employee of any
place of public accommodation, directly or indirectly, to refuse, withhold from or deny to any
person any of the accommodations mentioned in this chapter or to discriminate
against any person in the furnishing thereof on account of race, religion,
color, ancestry, national origin, sex, marital status, familial status,
disability, sexual orientation or gender identity of such person, or directly
or indirectly to publish, circulate or display any written or printed
communication, notice or advertisement to the effect that any of the
accommodations or the facilities of such place of public accommodation will be
refused, withheld from or denied to any person on account of race, religion,
color, ancestry, national origin, sex, disability, marital status, familial
status, sexual orientation or gender identity, or that, for such reasons, the
patronage or custom of any person described in this section is unwelcome or
objectionable or not acceptable to such place.
(b)
It shall be a discriminatory accommodation practice for any owner, agent,
operator or employee of a business or facility within a redevelopment area to
use a prohibited dress code as defined in Section 38-1, directly or indirectly,
to refuse, withhold from or deny to any person any of the accommodations
mentioned in this chapter or to discriminate against any person in the
furnishing thereof on account of race, religion, color, ancestry, national
origin, sex, marital status, familial status, disability, sexual orientation or
gender identity of such person. Any dress code enforced in a redevelopment area
or in any establishment with such area must be posted in accordance with the
requirements of Section 10-331(d), and must contain the phone number of the
city's Human Relations Department and a phone number of a representative of the
establishment who is available to respond to complaints regarding the
enforcement of the dress code during all hours when the establishment is open
or such dress code is in effect. Any such dress code shall list all prohibited
items of dress. Notwithstanding the foregoing, nothing herein shall be
construed as prohibiting:
(1) Any
owner or operator of a business or facility within a redevelopment area from
establishing an employee dress code or requiring that an employee abide by the
employee dress code while at work.
(2) Any
owner, agent, operator or employee of a business or facility within a
redevelopment area from affirmatively requiring the wearing of specified
articles of clothing, which may include collared shirts and ties, sports
jackets, business suits, business casual, formal clothing or smart casual
clothing in keeping with the ambiance and quality of the particular business or
facility and formal footwear, so long as the requirements are enforced with
regard to each and every patron, regardless of race, religion, color, ancestry,
national origin, sex, marital status, familial status, disability, sexual
orientation or gender identity.
Secs. 38-114---38-199. Reserved.
Section 6. That
a new Chapter 3, Code of Ordinances, is hereby enacted, to read as follows:
CHAPTER 3
CONTRACTS AND
LEASES
ARTICE I. CITY
CONTRACTING PROCESSES
DIVISION 1. CONTRACT
PROCUREMENT
Sec. 3-1. Definitions.
(a) The
following definitions apply to Article I except where an alternate definition
has been provided or the context indicates otherwise:
(1) Alternative construction delivery method shall mean
any project delivery method, other than a design-bid-build process, utilized to
construct, reconstruct, improve, enlarge, alter, paint and decorate or make
major repairs to any fixed work, the performance of which requires the payment
of prevailing wage pursuant to state or federal law, including design-build,
competitive sealed proposals, cooperative agreements with a private or public
entity, construction-manager at risk services, or any other alternative
procurement method authorized by law or specified in rules and regulations
adopted by the city manager.
(2) Code shall mean the City of Kansas City, Missouri Code
of Ordinances.
(3) Concession contract shall mean a contract for
concessions or similar transactions involving the sale of products or rendition
of services, or a combination thereof, in which funds are collected by the
contractor from third parties for the sale of products, services, or a
combination thereof, and from which the city may receive money in the form of a
royalty or other financial return.
(4) Construction contract shall mean a contract for the
construction, reconstruction, improvement, enlargement, alteration, painting
and decorating or major repair of any fixed work, the performance of which
requires the payment of prevailing wage pursuant to state or federal law.
(5) Cooperative agreement shall mean any agreement with
any other municipality or political subdivision, or with an elective or
appointive official thereof, or with a duly authorized agency of the United
States, or of this state, or with other states or their municipalities or
political subdivisions, or with any person, firm, association or corporation
for the planning, development, construction, acquisition or operation of any
public improvement or facility, or for a common service.
(6) Cooperative procurement shall mean entering into an
agreement or working with another unit of federal, state, local government , or
a political subdivision of any of the foregoing, for the purpose of procuring
goods, supplies, materials, equipment, services, or any combination thereof,
needed by the parties thereto and expected to result in cost and time savings.
(7) Design-build contract shall mean a contract in
which the design professional and construction services are contracted by a
single entity known as the design–builder, design–build contractor or a variant
thereof, and which single entity is responsible for all of the work on the
project.
(8) Design Professional contract shall mean a contract for
architectural, engineering or land surveying services relating to the design or
construction of buildings, bridges, streets, sewers, viaducts, water mains,
subways or any structure or public improvement of any nature whatsoever to be
erected upon lands belonging to the city, excluding those contracts in which
the design professional services are provided pursuant to a design-build
contract.
(9) Invitation for bids shall mean a request or invitation
for submission of an offer to enter into a contract pursuant to a competitive
bidding process.
(10) Manager of procurement services shall mean the person
appointed by the director of the general services department to manage the
procurement services division of such department.
(11) Non-municipal agency contract means a contract with a
governmental entity or not-for-profit entity granted tax-exempt status under
any provision of Section 501(c) of the Internal Revenue Code (26 U.S.C. §
501(c)) in which the city grants funds pursuant to an approved budget for the operation
of administration of a program or services which furthers the public good.
(12) Piggybacking shall mean entering into a contract for
goods, supplies, materials, equipment, services, or any combination thereof,
with an entity that has been awarded a contract for such goods, supplies,
materials, equipment, services, or any combination thereof, through a
competitive solicitation process undertaken by the federal government, any
state or local government other than the city, any other tax supported public
entity, or any cooperative or pooling arrangement, under equivalent contractual
terms and conditions and subject to acceptance of the city’s contractual terms
and conditions.
(13) Procurement card shall mean a credit card issued by the
city for the purpose of purchasing goods, supplies, materials, equipment, or
services, or to make payments under a contract.
(14) Purchasing pool or cooperative is any arrangement
whereby entities aggregate purchasing needs for the purpose of obtaining
discounted pricing or better terms or conditions.
(15) Qualification based selection process is a solicitation
process that includes consideration of the qualifications of anyone responding
to a solicitation as the determinative criteria for selection.
(16) Reverse auction shall mean an electronic reverse
auction purchasing process in which vendors bid to provide any services needed
by more than one department, or for goods, supplies, materials, or equipment
utilized by one or more departments, at the lowest selling price, and in an
open and interactive environment and which results in a contract being awarded
to the lowest and best bidder.
(17) Request for proposals shall mean a written invitation
by the city for persons to submit an offer subject to subsequent negotiations
with the city and subject to subsequent additions, deletions, modifications to
the request for proposal specifications or any subsequent contract.
(18) Request for qualifications shall mean a written
invitation by the city for a person to submit a statement of qualifications to
the city.
(19) Sole brand purchase shall mean a process for purchasing
which includes specifications restricting the purchase to a specific
manufacturer or brand.
(20) Statement of qualifications shall mean a statement submitted
by a prospective contractor detailing a prospective contractor’s experience,
financial capacity, key personnel, and other information pertinent to a
particular project.
(21) Term-supply contract shall mean a contract for the
purchase of any services needed by more than one department, or for goods,
supplies, materials, equipment, or any combination thereof, utilized by one or
more departments, of such a nature as may be needed by the city over the course
of a fiscal year, including but not limited to catalog or standard production
items, the price of which is determined by published price lists.
Sec. 3-3. Contract solicitation.
(a) General
standard. Except as otherwise provided in subsections (b) through (g)
herein or the provisions of Section 3-5, all city contracts shall be procured
as follows:
(1) Contracts exceeding $150,000.00. If the contract’s
estimated consideration exceeds $150,000.00, the city shall issue public notice
within a reasonable time as determined by the city manager, director of the
contracting department, or the manager of procurement services when soliciting
such contract, prior to the closing date of the solicitation. Such notice may
be made by publication on the world wide web, appropriate print media, or any
other means of publicly making the solicitation known to potential bidders or
proposers. Sealed bids or proposals are required.
(2) Contracts between $2,000.01 and $150,000.00. If the
contract’s estimated consideration is between $2,000.01 and $150,000.00,
unsealed bids or proposals shall be solicited by any reasonable method from at
least three qualified sources, or fewer if less than three qualified sources
shall exist. Sealed bids or proposals and public notice may be used in the
city’s discretion, but their use is not mandatory.
(3) Contracts $2,000.00 or less. If the contract’s
estimated consideration is $2,000.00 or less, or if the expense is to be
incurred through the use of a procurement card pursuant to regulations
implemented by the manager of procurement services or the director of finance,
such regulations being hereby authorized, sealed or unsealed bids or proposals
may be required in the city’s discretion, but their use is not mandatory and
the city is authorized to execute a contract without any solicitation.
(b) Design
professional contracts. The city shall utilize a qualification based
solicitation process and shall issue public notice within a reasonable time
prior to the closing date of the solicitation requesting that a statement of
qualifications be submitted by any firm seeking to provide architectural,
engineering or land surveying services.
(c) Design-build
contracts. The city shall utilize a request for proposals, request for
qualifications, invitation for bids, or some combination thereof, and shall
issue public notice within a reasonable time as determined by the director of
the contracting department prior to the closing date of the solicitation.
(d) Alternative
construction delivery methods. Except with regard to design-build
contracts as provided in subsection (c) herein, the city shall utilize such
solicitation methods as the contracting department shall determine to be in the
city’s best interest with regard to the particular project to be constructed.
The use of alternative construction delivery methods shall be subject to any
rules and regulations that may be adopted by the city manager from
time-to-time.
(e) Specialized
procurements. The following procurement methodologies may be utilized
subject to rules and regulations that may be adopted by the city manager or
manager of procurement services from time-to-time, such methods being deemed
likely to produce cost and times savings to the city and therefore deemed to be
in the public’s best interest:
(1) Reverse auction;
(2) Cooperative procurement, in which solicitation will be
performed by the city or another entity;
(3) Piggybacking;
(4) Purchasing pool or cooperative;
(5) Sole brand purchase.
Notwithstanding the foregoing,
the methods authorized in this subsection shall not be utilized to procure any
construction contract, except for those providing for the maintenance or repair
of any facility.
(f) Solicitation-exempted
contracts. Solicitation shall not be required for the following contract
types, provided however that solicitation shall not be precluded if the city
manager, director of the contracting department, or the manager of procurement
services when soliciting such contract on behalf of such department, determines
that solicitation is in the city’s best interests:
(1) Concession contracts, except for those solicited by the
manager of procurement services;
(2) Cooperative agreements, to the extent such agreements are
with any other municipality or political subdivision, or with an elective or
appointive official thereof; or with a duly authorized agency of the United
States, or of this state, or with other states or their municipalities or
political subdivisions; or with any not-for-profit entity granted tax-exempt
status under any provision of Section 501(c) of the Internal Revenue Code (26
U.S.C. § 501(c));
(3) Non-municipal agency contracts.
(g) If an alternate
or additional method of solicitation is required by city charter, federal or
state law, ordinance, contract or grant terms, the alternate or additional
method shall be utilized.
Sec. 3-5. Contract
solicitation; authority.
(a) General
rule. The city manager, director of every department established by City
Charter or by ordinance, and the manager of procurement services shall be
empowered to solicit and award contracts on behalf of the city subject to the
provisions of this Article.
(b) Exceptions
to general rule. Notwithstanding subsection (a), the following additional
provisions shall apply to the exercise of such authority:
(1)
Specialized
procurements. The city manager and the manager of procurement services
shall be empowered to solicit and award any contract using the methods
authorized in subsection (e) of Section 3-3. The director of any other
department is prohibited from utilizing any such procurement method except upon
the written authorization of the city manager or the manager of procurement
services.
(2)
Department-specific
procurements – services only. The solicitation and award of any
contract for any services needed by a single department only, shall be done by
the director of the single department or by the manager of procurement services
if the director of the single department shall have requested assistance and
the manager of procurement services shall have agreed to provide such assistance,
or if the city manager shall have otherwise authorized or directed the manager
of procurement services to act in such capacity with regard to the contract
being solicited and awarded.
(3)
City-wide
procurements. The
solicitation and award of any contract for any services needed by more than one
department, or for goods, supplies, materials, or equipment utilized by one or
more departments, shall be done by the manager of procurement services only
unless the city manager directs otherwise or the manager of procurement
services shall have delegated that authority to the director of another city
department and the director of such department shall have accepted such
delegation.
(4)
Information
technology procurements. The solicitation and award of any contract relating
to information technology shall be procured by the manager of procurement
services only unless the city manager directs otherwise or the manager of
procurement services shall have delegated that authority to the director of
another city department and the director of such department shall have accepted
such delegation.
Sec. 3-7. Contract solicitation waivers; ordinances.
(a) Unless
otherwise prohibited by federal or state law, contract or grant terms, the
following exceptions to the contract solicitation requirements in Section 3-3
may be utilized:
(1) Departmental Waivers. Unless otherwise prohibited by
the city manager, the director of the contracting department and the manager of
procurement services are authorized to waive the solicitation requirements for
any contract with an estimated cost of $150,000.00 or less, exclusive of a
design professional contract, if the director of the contracting department or
the manager of procurement services determines, in writing, that:
a. There is only one source or no competition exists; or
b. There exists an imminent threat to public health, welfare,
safety or essential operations of the city; or
c. Public solicitation would result in increased cost for the
city or would otherwise not be in the best interest of the city; or
d. The contractor to be utilized has unique or specialized
experience suited to a specific project such that it is in the city’s best
interests to utilize such contractor; or
e. The service to be performed is one which must, for warranty
purposes, be performed by a particular manufacturer’s authorized
representative.
No contract
awarded pursuant to this subsection (a)(1) shall be amended or changed in a
manner that would increase the city’s maximum financial obligation by more than
ten percent (10%) except upon the written approval of the city manager, nor
shall a new contract be awarded to the same person or firm for the same project
for which the original contract was awarded pursuant to such a waiver except
upon public solicitation in compliance with Section 3-3 or a waiver granted
pursuant to Section 3-35.
(2) City Manager Waivers. The city manager may waive the
solicitation requirements for any contract, regardless of estimated cost, if
the city manager determines, in writing, that:
a. There is only one source or no competition exists; or
b. There exists an imminent threat to public health, welfare,
safety or essential operations of the city; or
c. Public solicitation would result in increased cost for the
city or would otherwise not be in the best interest of the city; or
d. The contractor to be utilized has unique or specialized
experience suited to a specific project such that it is in the city’s best
interests to utilize such contractor; or
e. The service to be performed is one which must, for warranty
purposes, be performed by a particular manufacturer’s authorized
representative.
(3) Specialized waivers – design professional contract. Regardless
of the initial dollar amount of any design professional contract, the city may
elect to utilize the same design professional or a subcontractor thereto on a
subsequent design phase or for additional design work without a new
qualification based selection process provided that the subsequent phase or
additional work is to be performed on the same project for which the design
professional was originally selected. If the city and the design professional
or subcontractor thereto cannot agree on reasonable compensation for the
subsequent design phase or additional design work, the city shall solicit and
award a design professional contract in the manner otherwise prescribed in this
Article.
(b) Any
ordinance required by section 3-41 and that authorizes a contract for which the
city manager shall have granted a waiver shall include recitals setting forth
the rationale supporting such waiver, provided however that the failure to
include such recitals shall not invalidate any public improvement procurement
or any contract.
Sec. 3-9. Rejection of bids,
proposals, qualifications.
(a) The city
may reject any and all bids or proposals for any or no reason. If all bids or
proposals have been rejected, the city may do one or more of the following:
(1) Resolicit bids or proposals only from those bidders or
proposers that submitted a bid or proposal pursuant to the original
solicitation; or
(2) Use an expedited bid or proposal submission schedule with or
without re-advertising or issuing any other public notice when the city
determines that the delay from the normal solicitation procedure would not be
in the city's best interests; or
(3) Elect not to execute a contract.
(b) Nothing in
this Article shall be construed as obligating the city to negotiate or execute
any contract if the city shall have determined, at any point in time, that any
project or solicitation should be terminated for any or no reason.
Secs. 3-10—3.30. Reserved.
DIVISION
2. CONTRACT AWARD
Sec. 3-31. Contract award.
(a) General
standard. Except as otherwise provided in this Division 2, all contracts
in which bids or proposals were required shall be awarded to the lowest and
best bidder or best proposer as determined by the city in the city’s sole
discretion, after due opportunity for competition.
(b) Design
Professional Contracts. A qualification based selection shall be made
based upon the statement of qualifications that was required to be submitted
and any supplement thereto as requested by the city. The process for making
the qualification based selection shall be determined by the estimated dollar
value of the design professional contract as follows, provided however that the
failure to utilize the applicable process shall not invalidate any public
improvement procurement or any contract:
(1) Contracts
exceeding $600,000.00. The city shall convene an architect and engineering
selection committee, which committee shall rank the firms from most to least
qualified. The
committee shall be comprised of one member designated by the city manager and
four members designated by the director of the contracting department. The
chairperson of the city council committee cognizant of public improvements may
elect to be a member of the committee or may designate a council member to
serve on the committee.
(2) Contracts less than $600,000.00. The director of the
contracting department shall rank the firms from most to least qualified.
The city shall thereafter negotiate a contract for the project
with the firm selected as most qualified. If the city is unable to negotiate a
satisfactory contract with the firm selected, negotiations with that firm shall
be terminated. The city shall then undertake negotiations with another of the
qualified firms selected. If there is no agreement with the second firm,
negotiations with such firm shall be terminated. The city shall then undertake
negotiations with the third qualified firm. If the city is unable to negotiate
a contract with any of the selected firms, the city shall reevaluate the
necessary architectural, engineering or land surveying services, including the
scope and reasonable fee requirements, and again conduct a qualification based
selection process. Notwithstanding the foregoing, nothing herein shall
obligate the city to undertake any negotiations if the city shall have
determined to terminate the solicitation for any or no reason.
(c) Design-Build
Contracts. Contracts shall be awarded as is appropriate to the manner in
which the contract was solicited, as follows:
(1) Best value. To
the responsible design-build firm whose proposal is evaluated as providing the
best value to the city based on any factors and method and formula included in
the request for proposals. The city may elect to establish a fixed dollar
budget for the project such that all proposers are operating under the same
monetary limitations.
(2) Qualification-based.
A qualification based selection shall be made based upon the statement
of qualifications that was required to be submitted. The process for making
the qualification based selection shall be determined by the estimated dollar
value of the design-build contract as follows, provided however that the
failure to utilize the applicable process shall not invalidate any public
improvement procurement or any contract:
i. Contracts
exceeding $6,000,000.00. The city shall convene an architect and
engineering selection committee, which committee shall rank the design-builder
from most to least qualified. The committee shall be comprised of one member designated by the
city manager and four members designated by the director of the contracting
department. The chairperson of the city council committee cognizant of public
improvements may elect to be a member of the committee or may designate a
council member to serve on the committee.
ii. Contracts $6,000,000.00 or less. The director of the
contracting department shall rank the design-builder from most to least
qualified.
The city shall thereafter negotiate a contract for the project
with the firm selected as most qualified. If the city is unable to negotiate a
satisfactory contract with the firm selected, negotiations with that firm shall
be terminated. The city shall then undertake negotiations with another of the
qualified firms selected. If there is no agreement with the second firm,
negotiations with such firm shall be terminated. The city shall then undertake
negotiations with the third qualified firm. If the city is unable to negotiate
a contract with any of the selected firms, the city shall reevaluate the scope
of the project and again conduct a qualification based selection process.
Notwithstanding the foregoing, nothing herein shall obligate the city to
undertake any negotiations if the city shall have determined to terminate the
solicitation for any or no reason.
(3) Two-phase. The design-builders shall be ranked from
most to least qualified in such manner as provided in subsection (c)(2) and a
value shall be assigned based upon the rankings. The city shall thereafter evaluate and score any proposal or bid
required to be submitted and shall identify the best proposal or the lowest and
best bid, as applicable. The city shall thereafter negotiate a contract for the
project with the firm selected as having the best proposal or execute a
contract for the project with the firm having the lowest and best bid. If the
city is unable to negotiate a satisfactory contract or execute a contract, the
city shall then proceed to the next best proposal or next lowest and best bid,
and such process shall continue in similar fashion unless the city shall have
determined to terminate the solicitation.
Sec. 3-33. Secondary source awards; goods, supplies,
materials and equipment.
In addition to
awarding a contract to the lowest and best bidder or proposer, the manager of
procurement services may award contracts to multiple bidders or proposers in
the event the manager of procurement services determines that it is in the
city’s best interests to do so.
Sec. 3-35. General waivers.
(a) City
Manager waivers. The city manager at any time may waive any requirements
imposed by the solicitation or by any city regulation with regard to the
solicitation or award of any city contract if the city manager determines, in
writing, that:
(1) The failure to grant the waiver would result in an increased
cost to the city; and
(2) The requirement is one that would be waived for any bidder or
proposer responding to the solicitation; and
(3) It is in the best interest of the city to grant the waiver.
(b) City
Council waivers. The city council at any time may waive any provision of
the Code with regard to the solicitation or award of any city contract if it
finds that:
(1) The failure to grant the waiver would be detrimental to
preserving the public health, welfare, safety or essential operations of the
city; or
(2) The waiver is necessary in order to participate in a
purchasing pool or cooperative or a contract derived from a purchasing pool or
cooperative; or
(3) The good, supply, material, equipment or service is from a
sole source; or
(4) The failure to grant the waiver would result in an increased
cost to the city, the requirement is one that would be waived for any bidder or
proposer responding to the solicitation, and it is in the best interest of the
city to grant the waiver; or
(5)
It
is otherwise in the best interests of the city for any other reason as
determined by the city council.
Sec. 3-37. Prohibited awards.
No contract
shall be awarded to any bidder or proposer which is itself debarred from the
award of city contract or which is managed, controlled, or more than 50 percent
owned by a person or entity so debarred.
Sec. 3-39. Bid revisions.
(a) Construction
contracts. If all bids exceed the price estimated by the city prior to bid
opening, the city may offer the lowest and best bidder the option of doing the
work for such estimate, with no changes to scope of the project, provided that
the bid submitted by the lowest and best bidder is not more than five percent
higher than such estimate.
(b) All
other city contracts. The city may negotiate a revised bid with the
apparent lowest and best bidder, including changes in bid requirements, price,
scope, specifications or quantity, if the bid exceeds the appropriation or
relevant budget for that project and the director determines that resoliciting
bids is not in the city’s best interests.
Sec 3-41. Contract authorization.
(a) Unless
approval by the city council or the board of parks and recreation commissioners
is specifically required by city charter, ordinance, federal or state law,
contract or grant terms, the following provisions shall control:
(1) The city manager and department directors are authorized to
enter into any and all contracts and cooperative agreements on behalf of the
city without city council authorization in which the term does not exceed five
(5) years and the consideration does not exceed $1,200,000.00 for a
construction contract and $300,000.00 for all other contracts.
(2) The city manager and manager of procurement services are
authorized to enter into all contracts and cooperative agreements on behalf of
the city without city council authorization in which the term does not exceed
five (5) years and the estimated consideration does not exceed $1,200,000.00
for goods, supplies, materials, or equipment and $300,000.00 for services,
provided however that the higher threshold shall apply to any contract or
cooperative agreement in which services are to be provided in conjunction with
the goods, supplies, materials of equipment being procured.
(b) If city
council authorization is required and obtained, the contract may subsequently
be amended by change order, contract amendment or otherwise in such a manner as
to increase the consideration due by up to and including ten percent (10%)
without further city council authorization. This cap may be exceeded, subject
to the sufficiency of appropriated funds, if authorization to such effect is
included within the body of the ordinance authorizing the contract or an
amendment to the contract.
Sec. 3-43. Contract term.
(a) Maximum
Term. No contract shall be let or amended in such a manner as to exceed
five (5) years in maximum duration except upon authorization of the city
council, provided however that this provision shall not prohibit the city from
entering into one or more successive contracts with the same contractor and for
the same or similar goods, supplies, materials, equipment, or services so long
as such contracts are procured in accordance with Section 3-3 or an exception
thereto. Nothing herein shall be deemed to invalidate or otherwise impair the
term of any contract executed by the city prior to the effective date of this
section.
(b) Transitional
term. Notwithstanding the foregoing, the city manager may extend the
maximum term of any contract by up to two (2) additional years provided the
city is soliciting bids or proposals for the goods, supplies, materials,
equipment, or services being provided and the goods, supplies, materials,
equipment, or services are of such a nature that the city manager determines it
is in the best interests of the city to extend the contract.
Sec. 3-45. Contract provisions required in city
contracts.
No section of this Code is required
to be recited in any city contract to impose the Code's requirements on the
contractor.
Secs. 3-46---3-60. Reserved.
DIVISION
3. MISCELLANEOUS
Sec. 3-61. Tax clearance.
Notwithstanding
any other Code section to the contrary, each contractor shall provide proof of
compliance with the tax ordinances administered by the commissioner of revenue
as a precondition to the city making the first payment under any contract or
contract renewal if the consideration exceeds $150,000.00. All proof of
compliance letters issued by the commissioner of revenue shall be valid for one
year from the date of issuance.
Sec. 3-63. Insurance and
bonds.
Bonds and
insurance shall be required as a term of any contract unless the bond or
insurance requirement is exempted by the City Charter, ordinance or regulation,
federal or state statute, or the terms of an applicable grant, or has otherwise
been waived or been determined to be unnecessary by the city.
Sec. 3-65. Execution and
filing of contracts.
All contracts
shall be executed in the name of the city and originals thereof shall be filed
with the finance department and the department awarding the contract.
Sec. 3-67. Financial obligation.
Except as
otherwise provided by city charter, no contract or purchase order purporting to
impose any financial obligation on the city shall be binding upon the city
unless it be in writing and unless there is a balance, otherwise unencumbered, to
the credit of the appropriation to which the same is to be charged sufficient
to meet the obligation thereby incurred, and unless such contract or purchase
order bears the certificate of the director of finance so stating or other
acceptable means determined by the director of finance.
Sec. 3-69. Preference for
American products.
(a) Any
manufactured goods or commodities used or supplied in the performance of any
city contract or any subcontract thereto shall be manufactured or produced in
the United States whenever possible.
(b) Each
contract for the purchase or lease of manufactured goods or commodities by the
city and each contract made by the city for construction, alteration, repair,
or maintenance of any public work shall contain a provision that any
manufactured goods or commodities used or supplied in the performance of that
contract or any subcontract thereto shall be manufactured or produced in the
United States whenever possible
(c) When bids
offer quality, price, conformity with specifications, terms of delivery and
other conditions imposed in the specifications that are equal, the city shall
select the bid that uses manufactured goods or commodities that are
manufactured or produced in the United States.
(d) Nothing in
this section is intended to contravene any existing treaty, law, agreement, or
regulation of the United States. All contracts under this section shall be
entered into in accordance with existing treaty, law, agreement, or regulation
of the United States including all treaties entered into between foreign
countries and the United States regarding export-import restrictions and
international trade.
Sec. 3-71. LEED gold
standard.
(a) Policy.
It is the policy of the city that the design, construction, and operation of
new facilities of any size and renovations in which the facility affected has
at least 5,000 square feet of space shall conform to the gold rating or higher
of the most recent version of the USGBC (U.S. Green Building Council) LEED
(Leadership in Energy and Environmental Design) Green Building Rating System.
(b) Establishment
of LEED standards committee. Except for the representative from the city
council, who shall be appointed by the mayor, the city manager shall appoint
the members of a LEED standards committee. The LEED Standards Committee shall
be chaired by the city architect and shall be composed of one representative
from each of the following:
(1) Aviation department;
(2) Public works department;
(3) City manager's office of environmental quality;
(4) Environmental management commission;
(5) General services department;
(6) Parks and recreation department;
(7) Water services department;
(8) City council.
(c)
Notwithstanding subsection (b), the city manager has the authority to make
departmental or organizational additions or deletions to the membership of the
LEED standards committee as needed for the effective administration of this
section, with the exception of the city council position.
(d) Contracts.
Each contract for projects identified in subsection (a) above shall contain
provisions sufficient to require the design professional, construction
contractor and design-build team, as applicable, to comply with the LEED gold
standard at a minimum and submit documentation to USGBC for their independent
third-party review process and certification.
(e) Exemptions.
For a given project, if the LEED standards committee determines that there are
compelling reasons that a project may not be able to achieve a LEED gold
rating, the LEED standards committee may require compliance with select LEED
credits or exempt a project from any LEED compliance requirement found in
subsection (a) of this section.
(f) Rules
and regulations. The LEED standards committee shall draft and adopt any
rules and regulations necessary to administer this section and to facilitate
the committee's review and determination process.
Sec. 3-73. Cooperative
agreements; certain terms required.
(a) Unless
otherwise authorized by ordinance, cooperative agreements and all contracts to
be awarded thereunder shall be subject to the provisions of Article IV,
Contracting Program Requirements, provided the monetary and funding thresholds
established therein render such programs applicable to the cooperative
agreement at issue. Nothing herein shall preclude the utilization of any
equivalent programs, if applicable, provided such programs have been authorized
by the provisions of sections 3-425, 3-505(b) or 3-603(b).
(b) Unless
otherwise authorized by ordinance, a party to a cooperative agreement utilizing
one or more contractors or subcontractors to further the objectives of such
cooperative agreement shall solicit and award all contracts subject to the same
requirements as would be applicable to the city as provided in sections 3-3,
3-31 and 3-37.
Secs. 3-74—3-90.
Reserved.
DIVISION 4. MONETARY
ADJUSTMENTS
Sec. 3-91. Escalation of
dollar limits.
(a) Effective
May 1, 2015 and at the beginning of every fourth city fiscal year thereafter,
the monetary amounts specified in sections 3-3, 3-7, 3-41 and 3-61 shall
automatically be adjusted to reflect an increase equal to the increase in the
consumer price index (all items/all urban consumers/Kansas City,
Missouri-Kansas) having occurred since the last preceding adjustment, as
published by the United States Department of Labor, Bureau of Labor Statistics
Consumer Price Index for all urban consumers. Such monetary amount, as
adjusted, shall be rounded upwards as follows:
(1) Amounts less than $20,000 shall be rounded upwards to the
nearest $1,000.00; and
(2) Amounts between $20,000 and $200,000 shall be rounded upwards
to the nearest $10,000.00; and
(3) Amounts equal to or greater than $200,000 shall be rounded
upwards to the nearest $100,000.00.
Secs. 3-92—3-200. Reserved.
ARTICLE
II. LEASES
DIVISON
1. GENERALLY
Sec. 3-201. Leases of city-owned real estate.
(a) Unless
otherwise authorized by the city charter or ordinance, no lease, license or
other contract or agreement purporting to grant any right to enter on or use
any city-owned real estate for a term of more than one year or for
consideration in excess of $50,000.00 shall be entered into on behalf of the
city without approval of the city council.
(b) Unless
otherwise authorized by the charter or ordinance, no lease, license or other
contract or agreement purporting to grant any right to enter on or use any
city-owned real estate for a term of one year or less for consideration in
excess of $20,000.00 shall be entered into on behalf of the city without first
providing written notice of the intent to execute such an agreement and
estimate of the fair market sale and lease values to the city council. Such
notice shall include the names of the parties to the proposed agreement, a
description of the property and the basic purpose and terms of the agreement.
No such contract or agreement shall be executed on behalf of the city without
the approval of the council if four or more council members file written
objections to such contract or agreement within five working days of the notice
date. The city manager shall establish procedures to ensure compliance with
this provision.
(c) The
department of convention and entertainment centers and the aviation department
may enter into leases, licenses or other contracts or agreements granting the
right to enter on or use facilities under its control without the specific
approval of the city council under the following circumstances:
(1) When the lease, license or other contract or agreement is for
a term of three years or less, and the total number of days of use does not
exceed 60 days; or
(2) When the lease, license or other contract, or agreement is
for a term of two years or less, and the nature of the lease, license or other
contract or agreement is for the installation and display of signage or other
permanently installed equipment for advertisements, communications or other
similar uses; or
(3) When the lease, license or other contract or agreement is for
the use of a suite in a facility under the control of the director of
convention and entertainment centers.
(d) Nothing set
forth herein shall be deemed to be a limitation on the authority of the board
of parks and recreation commissioners as provided in the city charter or this
Code.
DIVISION 2. MONETARY
ADJUSTMENTS
Sec. 3-203. Escalation of
dollar limits.
(a) Effective
May 1, 2015 and at the beginning of every fourth city fiscal year thereafter,
the monetary amounts specified in section 3-201 shall automatically be adjusted
to reflect an increase equal to the increase in the consumer price index (all
items/all urban consumers/Kansas City, Missouri-Kansas) having occurred since
the last preceding adjustment, as published by the United States Department of
Labor, Bureau of Labor Statistics Consumer Price Index for all urban consumers.
Such monetary amount, as adjusted, shall be rounded upwards to the nearest
$10,000.00.
Secs. 3-204—3-300. Reserved.
ARTICLE
III. ETHICS IN CONTRACTING
DIVISION
1. GENERALLY
Sec. 3-301. Employee conflict of interest; limited waiver.
(a) It shall be
unethical for any city employee to:
(1) Participate directly or indirectly in the solicitation or
award of any contract when the employee knows that the employee or any member
of the employee's immediate family has a financial interest or other personal
interest which is incompatible with the proper discharge of the employee’s
official duties in the public interest or would tend to impair the employee’s
independence, judgment or action in the performance of official duties;
(2) Participate directly or indirectly in the award of any
contract if the employee or any member of an employee's immediate family is
negotiating or has an arrangement concerning employment with any person having
submitted a bid or proposal;
(3) Become or remain the employee of any person contracting with
the city if the city employee participated directly or indirectly in the
solicitation or award of the contract; or
(4) Use confidential information for actual or anticipated
personal gain, or for the actual or anticipated personal gain of any other
person.
(b) The
director of finance may grant a waiver from the employee conflict of interest
provisions contained in subsection (a)(1), (a)(2) or (a)(3) upon making a
written determination that:
(1) The interest or contemporaneous employment has been publicly
disclosed;
(2) The employee will be able to perform his or her job functions
without actual or apparent bias or favoritism; and
(3) The waiver is in the best interests of the city.
Sec. 3-303. Gratuities and kickbacks prohibited;
recoverable.
(a) No person shall
offer, give or agree to give any city employee, nor shall any such city
employee solicit, demand, accept or agree to accept from another person, any
payment, gratuity or an offer of employment in connection with any decision,
approval, disapproval, recommendation or preparation of any part of a contract
requirement or a purchase request, influencing the content of any specification
or procurement standard, rendering of advice, investigation, auditing or in any
other advisory capacity in any proceeding or application, request for ruling,
determination, claim or controversy, or other particular matter, pertaining to
any contract or subcontract, or to any solicitation or proposal therefor.
(b) No payment,
gratuity or offer of employment shall be made by or on behalf of a
subcontractor under a contract to the prime contractor or higher tier
subcontractor or any person associated therewith, as an inducement for the
award of a subcontract or order. Upon a showing that a subcontractor, or
someone acting on behalf of a subcontractor, made a kickback to a prime
contractor or a higher tier subcontractor in connection with the award of a
subcontract or order thereunder, it shall be conclusively presumed that the
amount thereof was included in the price of the subcontract or order and
ultimately borne by the city and shall be recoverable under this section from
the recipient or party making such kickback.
Sec. 3-305. Contingent fees prohibited.
No person shall
retain another person, to solicit or secure a contract upon an agreement or
understanding for a commission, percentage, brokerage or contingent fee, except
for retention of bona fide employees or bona fide established commercial
selling agencies for the purpose of securing business. This section shall not
prevent an attorney from representing a client in any dispute respecting a
contract, nor shall it prevent an attorney or an accountant from negotiating
with the city on behalf of a client.
Sec. 3-307. Sanctions for violations.
(a) The city may
impose any one or more of the following sanctions for violations of any
provision in this Article:
(1) Written
warnings;
(2) Termination
of contracts; or
(3) Debarment
or suspension as provided in Section 3-321.
(b) The value of
anything transferred or received in breach of any provision of this Article may
be recovered from either or both the person granting or receiving the thing of
value, and such recovery shall not be precluded or offset by any sanction that
may be imposed by the city.
Sec. 3-309. Penalties authorized.
(a) Any person
convicted of a violation of any provision of this Division shall be punished by
a fine of not more than $500.00, or by imprisonment for not more than six
months, or by both such fine and imprisonment. Each violation shall
constitute a separate offense.
(b) The
provisions of this section shall not serve to limit any civil remedies that may
be available to the city in law or equity, nor shall the city’s pursuit or
receipt of any civil remedy serve to limit any penalty authorized herein.
Secs. 3-310—3-320. Reserved.
DIVISiON 2. Debarment
Sec. 3-321. Debarment of contractors and subcontractors.
(a) In the
event that any contractor or subcontractor on a city contract is determined, as
hereinafter set out, to be willfully and without good cause violating the
requirements of the contract in any of the ways listed below, then such
contractor and its chief operating officer, and any owner or part owner who
participated in the management of the company at the time of the violation,
shall be debarred from participating, either as a contractor or subcontractor,
in other such city contracts for a period of time as provided herein:
(1) Incorporating materials into the work which are not in
accordance with the specifications.
(2) Performing work on the contract without the insurance
required by the contract being in force.
(3) Failing to complete the contract work.
(4) Failing to show good faith in attempting to meet the city's
MBE/WBE and construction workforce requirements for the contract.
(5) Failing to enter into a contract with the city after having
been notified of the city's intent to contract.
(6) Performing work on the contract without having obtained the
required licenses or permits.
(7) Failing to comply with the city's requirements relating to
equal opportunity in employment.
(8) Disposing of waste from the work in a location which has not
been approved as provided in the contract.
(9) Failing to obtain all permits and observe all required safety
precautions in connection with the handling, storage and use of explosives on
the contract.
(10) Concealing work on the contract from the city's inspectors.
(11) Falsifying test results concerning work on the contract.
(12) Failing to repair property which was damaged in the course of
doing the work.
(13) Failing to pay any city tax.
(14) Failing to pay the wage rates prescribed in the contract.
(15) Failing to include provisions in subcontracts which are
required to be included under the contract terms.
(16) Permitting a subcontractor to do any of the things listed in
this subsection, or failing to take reasonable measures to prevent a
subcontractor from doing the things listed herein.
(17) Failing to make payment to any subcontractor or material
supplier as set forth in Section 34.057, RSMo.
(18) Failing to comply with the contract requirements in any other
manner which is deemed to be so serious and compelling as to justify debarment.
(b) Any
contractor or subcontractor on a city contract shall also be debarred from
participating, either as a contractor or subcontractor, in other such city
contracts for a period of time as provided herein for the following additional
causes:
(1) Conviction for commission of a criminal offense as an
incident to obtaining or attempting to obtain a public or private contract or
subcontract, or in the performance of such contract or subcontract.
(2) Conviction under state or federal statutes of embezzlement,
theft, forgery, bribery, falsification or destruction of records, receiving
stolen property, or any other offense indicating a lack of business integrity
or business honesty which currently, seriously and directly affects
responsibility as a city contractor or subcontractor.
(3) Conviction under state or federal antitrust statutes arising
out of the submission of bids or proposals.
(c) Procedure.
Except as otherwise provided for herein, action to debar a contractor may be
initiated by any department director and shall proceed as follows:
(1) Initiation of proceeding. The proceeding may be
initiated by any department director who shall issue a written notice of the
proposed debarment to the contractor and to the city manager. The notice shall
include a statement of the reasons for the proposed debarment, the date of
mailing, and the date, time and place of a hearing on the matter. If the
contractor cannot be located for purposes of delivery of the notice, the
proceeding shall be held in abeyance until notice can be given.
(2) Notice. Any notice required by the proceeding and any
other notice to the contractor may be sent postage prepaid by certified U.S.
mail to the contractor at its last known address or at its registered office,
if it is a corporation, or by delivering a copy of the notice to the contractor
personally or to an officer, partner, or managing or general agent or to any
other agent authorized by appointment or required by law to receive service of
process.
(3) Hearing panel membership. The hearing panel shall
consist of three (3) persons appointed by the city manager, one of whom shall
be designated by the hearing panel as chairperson. The panel shall not include
the department director or any member of the department that initiated the
proceeding. A person that has served on a debarment hearing panel against a
contractor may not serve on a subsequent debarment hearing panel involving the
same contractor.
(4) Conduct of hearing. Unless a delay is requested by the
contractor, the hearing shall be held no more than thirty (30) days after
notice is received by the contractor. The contractor shall have full right to
have counsel, to produce witnesses and to cross examine all witnesses who may
appear against it. All proceedings in such hearings shall be taken down
stenographically, or recorded mechanically or electronically, or by a
combination thereof, and shall be transcribed whenever required by law.
Subpoenas shall be issued by the hearing panel for any witness whose presence
is desired at any hearing or proceeding before the hearing panel. Such
subpoenas shall be served and return thereon shall be made in the same manner
as is provided by law in civil suits in the circuit court of this state.
Witnesses may also appear voluntarily at such hearings and testify. Before any
witness shall testify in any such hearing or proceeding, he shall swear or
affirm to tell the truth.
(5) Decision. Decisions shall be concurred in by a
majority of the hearing panel. Within sixty (60) days after the hearing, the
panel shall issue its decision in writing stating whether the contractor is
debarred from contracting with the city and, if so, for what period of time.
(6) Notice of decision. The contractor shall be given
prompt notice of the decision of the hearing panel, and a copy of such decision
shall be promptly mailed or otherwise furnished to the contractor.
(7) Finality of decision. The decision of the hearing
panel shall be final and conclusive unless the contractor, within thirty (30)
days after issuance of the decision, commences a timely action for review in a
court of competent jurisdiction in accordance with applicable law.
(d) Period
of debarment; tolling. The period of debarment shall be two (2) years for
the first offense, five (5) years for the second offense and ten (10) years for
any subsequent offense. Any prevailing wage violations resulting in payment of
restitution and penalties within the prior five years may be counted as a prior
offense.
Secs. 3-322—3-400. Reserved.
ARTICLE IV.
CONTRACTING PROGRAM REQUIREMENTS
DIVISION 1.
AFFIRMATIVE ACTION
Section 3-401. Definitions.
(a) The
following words, terms and phrases, when used in this Division 1 shall have the
meanings ascribed to them in this section, except where the context clearly
indicates a different meaning or an alternative definition has been provided:
(1) Affirmative action program means a positive
program designed to ensure that a good-faith effort will be made to employ
applicants and to treat employees equally without regard to their race, color,
sex, religion, national origin or ancestry, disability, sexual orientation,
gender identity or age. Such program shall apply, where applicable, to the
following: recruitment and recruitment advertising, employment, employment
upgrading, promotion, demotion or compensation, other terms or conditions of
employment and selection for training, including apprenticeship; and shall
include goals, methodology and timetables for implementation of the
program.
(2) Age means an age of 40 or more years, except
that it shall not be an unlawful employment practice for an employer to require
the compulsory retirement of any person who has attained the age of 85 and who,
for the two-year period immediately before retirement, is employed in a bona
fide executive or high policymaking position, if such person is entitled to an
immediate nonforfeitable annual retirement benefit from a pension, profit
sharing, savings or deferred compensation plan, or any combination of such
plans, of the employer, which equals, in the aggregate, at least
$344,000.00.
(3) Certificate of compliance means a written certificate
issued by an agency or body, other than City, charged with the administration
of a governmentally recognized affirmative action program and which indicates
that the person named therein is in compliance with the terms of an affirmative
action program.
(4) City means the City of Kansas City,
Missouri.
(5) Commission means the city human rights
commission.
(6) Complaint means a verified written statement of
facts and circumstances, including dates, times, places and names of persons
involved in any alleged violation of any provision of Chapter 213, RSMo or this
Division.
(7) Contract means any contract to which the city shall be
a contracting party, except the following:
a. Personal services contracts.
b. Emergency requisitions for goods, supplies or services.
c. Impressed accounts in the nature of petty cash funds.
d. Contract or lease, the cost of which will not exceed
$300,000.00.
(8) Contractor means any individual, partnership,
corporation, association or other entity, or any combination of such entities,
who or which enters into a contract with the city and who has 50 or more
employees exclusive of parents, spouse or children of such contractor.
(9) Department means the department of human
relations.
(10) Director means the director of the human relations
department or such director’s delegate.
(11) Disability. With respect to employment, a person
with a disability is a person who is otherwise qualified and who, with
reasonable accommodation, can perform the essential functions of the job in
question. Generally, a person with a disability is any person who:
a. Has a physical or mental impairment which substantially
limits one or more major life activities;
b. Has a record of having such impairment; or
c. Is regarded as having such an impairment.
(12) Employee means any individual employed by an
employer, but does not include an individual employed by his parents, spouse or
child or any individual employed to render services as a domestic in the home
of the employer.
(13) Gender identity means the actual or perceived
appearance, expression, identity or behavior of a person as being male or
female, whether or not that appearance, expression, identity or behavior is
different from that traditionally associated with the person's designated sex
at birth.
(14) Person includes one or more individuals,
corporations, partnerships, associations, labor organizations, legal
representatives, mutual companies, joint stock companies, trusts,
unincorporated organizations, trustees, trustees in bankruptcy, receivers,
fiduciaries and other organizations; except the term "person" does
not include any local, state or federal governmental entity.
(15) Respondent means any person against whom it shall
be alleged by complaint or identified during the course of an investigation
that such person has violated, is violating or is about to violate any
provision of Chapter 213, RSMo or this Division.
(16) Sexual orientation means actual or perceived
heterosexuality, homosexuality or bisexuality.
(17) Subcontractor means any individual, partnership,
corporation, association or other entity, or other combination of such
entities, which shall undertake, by virtue of a separate contract with a
contractor, to fulfill all or any part of any contractor's obligation under a
contract with the city, or who shall exercise any right granted to a franchise
holder, and who has 50 or more employees exclusive of the parents, spouse or
children or such subcontractor.
(18) Unlawful discriminatory practice means any
discriminatory practice as defined and prohibited by sections 38-103, 38-105,
38-107, 38-109, 38-111 and 38-113, Code of Ordinances.
Section 3-403. Affirmative action.
(a) Any
contract exceeding $300,000.00 shall include the following requirements as
material terms thereof:
(1) That contractor execute and submit an affidavit, in a form
prescribed by the city, warranting that contractor has an affirmative action
program in place and will maintain the affirmative action program in place for
the duration of the contract.
(2) That contractor submit, in print or electronic format, a copy
of its current certificate of compliance to the Human Relations Department
prior to receiving its first payment under the contract, unless a copy thereof
shall have already been submitted to the Human Relations Department at any
point within the previous two calendar years. If contractor does not possess a
current certificate of compliance, contractor shall submit, in print or
electronic format, a copy of its affirmative action program to the Human
Relations Department prior to receiving its first payment under the contract,
unless a copy thereof shall have already been submitted to the Human Relations
Department at any point within the previous two calendar years.
(3) That contractor require any subcontractor awarded a
subcontract exceeding $300,000.00 to affirm that subcontractor has an
affirmative action program in place and will maintain the affirmative action
program in place for the duration of the subcontract.
(4) That contractor obtain from any subcontractor awarded a
subcontract exceeding $300,000.00 a copy of the subcontractor’s current
certificate of compliance and tender a copy of the same, in print or electronic
format, to the Human Relations Department within thirty (30) days from the date
the subcontract is executed. If the subcontractor does not possess a current
certificate of compliance, the contractor shall obtain a copy of the subcontractor’s
affirmative action program and tender a copy of the same, in print or
electronic format, to the Human Relations Department within thirty (30) days
from the date the subcontract is executed.
Section 3-405. Contract conditions.
(a) All contracts
hereafter executed by the city shall contain language requiring as a condition
thereof that all persons contracting with the city or contracting with any
public or private entity that receives 66 percent of its funding from the city
or receiving a franchise from the city or subcontractors of such contractors or
franchisees agree to refrain from any unlawful discriminatory practice, that
such persons agree to implement an affirmative action program in connection
with such contract or franchise when applicable, and that if a contractor shall
fail, refuse or neglect to comply with these contract conditions such failure
shall be deemed a total breach of the contract and such contract may be
terminated, canceled or suspended, in whole or in part, and such contractor may
be declared ineligible for any further city contracts for a period of one year.
(b) All
contracts shall contain language to the effect that all contractors and
subcontractors agree to permit the director access, at all reasonable times, to
all books, papers, records, reports or accounts in possession of or under the
control of such person, as may be necessary to ascertain compliance with this
Division, and to 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
director shall be authorized to conduct on-site audits of any contractor and
subcontractor.
Section 3-407. Enforcement of contract
conditions.
If the director
shall find after investigation that a contractor or subcontractor has violated
contract provisions relating to unlawful discriminatory practice or affirmative
action, the director shall bring a complaint before the human rights
commission. The commission shall hold a hearing in accordance with Chapter 38
of the city’s Code of Ordinances. After rendition of the commission's decision,
the contracting officer involved shall serve upon the respondent a copy of such
order and decision. The respondent shall have 30 days after delivery of the
order and decision to demonstrate to the director willingness to comply with
the terms and conditions of such order, failing which the contracting officer
shall proceed to cancel, terminate or suspend the contract, or declare the
contractor ineligible to receive any city contract or franchise for a period of
one year, as such order may require. Willingness of the contractor to comply
with such order shall be evidenced by his or her written agreement to comply
with the terms and conditions set forth in the order.
Section 3-409. Severability.
The provisions of this
Division are severable. If any provision or its application to any person or
circumstance is held invalid by a court of competent jurisdiction, the
remaining provisions, including the application of such provisions to other
persons or circumstances, shall continue in full force and effect.
Sections 3-410—3-420.
Reserved
Division 2. Minority and Women’s Business
Enterprises (M/WBE)
Section
3-421. Definitions.
(a)
The following definitions apply to this Division 2, except where an alternate
definition has specifically been made applicable:
(1) Affidavit of intended utilization: An affidavit, in a
form prescribed by the director, stating the bidder’s intent to meet the
MBE/WBE goals or to timely request a waiver of the MBE/WBE goals.
(2) Agency: Any public or private entity that receives 66
percent of its funding from the city or any entity with the authority to
recommend city tax increment financing or city tax abatements.
(3) Agency head: Person authorized to act on behalf of an
Agency.
(4) Award of contract: Execution of a contract and, if
necessary, city council or park board authorization.
(5) Bid: An offer to enter into a contract submitted
pursuant to an invitation for bid.
(6) Bidder: Any person who submits a bid to the city or an
agency in response to an invitation for bid.
(7) Bid opening: The event whereby bids are opened and
read aloud at the place, date and time specified in the invitation for bid and
any subsequent amendment thereto.
(8) Bid shopping: The practice whereby a person divulges
or requires another to divulge a subcontractors bid or proposal for the purpose
of securing a lower bid or proposal.
(9) City: City of Kansas City, Missouri.
(10) City department: Department of the city or the division
of procurement services when acting on behalf of a department director.
(11) Commercially useful function: Real and actual services
that are a distinct and verifiable element of the contracted work based upon
private sector trade or industry standards. Determination that an enterprise
performs a commercially useful function will be made based on the following
considerations:
a. An MBE or WBE performs a commercially useful function when it
is responsible for execution of the ordinary and necessary work of the contract
and is carrying out its responsibilities by actually performing, managing, and
supervising the work involved. To perform a commercially useful function, the
MBE or WBE must also be responsible, with respect to materials and supplies
used on the contract, for negotiating price, determining the quality and
quantity, ordering the material, installing (where applicable) and paying for
the material itself. To determine whether an MBE or WBE is performing a
commercially useful function, one must evaluate the following:
1. The amount of work subcontracted; and
2. Industry practices; and
3. Whether the amount the enterprise is to be paid under the
contract is commensurate with the work it is actually performing; and
4. Whether the MBE or WBE has the skill and expertise to perform
work for which it is being utilized; and
5. The credit claimed for its performance of the work; and
6. Other relevant factors.
b. An MBE or WBE does not perform a commercially useful function
if its role is limited to that of an extra participant in a transaction,
contract, or project through which funds are passed in order to obtain the
appearance of MBE or WBE participation. In determining whether an MBE or WBE is
such an extra participant, one must examine similar transactions, particularly
those in which MBEs or WBEs do not participate.
c. An MBE or WBE firm is not performing a commercially useful
function if the MBE or WBE subcontracts a greater portion of the work on a
contract or purchases a greater amount of material than would be expected on
the basis of normal industry practice for the type of work involved.
d. Whether the MBE or WBE is participating in the contract as a
middle person or broker in the normal course of that business or trade by
purchasing the goods and/or services from another business, thereby qualifying
expenditures for such goods and/or services to be counted toward utilization
requirements for MBEs and WBEs.
e. Whether the MBE or WBE is responsible for the purchase and
quality of, and payment for, materials used to perform its work under the
contract.
There shall be a
rebuttable presumption that, when the MBE or WBE subcontracts a greater portion
of the contract work than normal industry practice, the MBE or WBE is not
performing a commercially useful function.
(12) Construction contract: A contract for the construction,
reconstruction, improvement, enlargement or alteration of any fixed work or
construction site preparation, the majority of which is paid for out of city or
agency funds.
(13) Contract: Any city or agency construction contract more
than $300,000.00, and all other city or agency contracts more than $117,000.00
the majority of either of which is paid for out of city funds or in which an
agency is a party, except the following:
a. Personal services contracts; and
b. Emergency contracts; and
c. Imprest accounts in the nature of petty cash funds.
(14) Contractor: Any person who enters into a contract with
the city or an agency.
(15) Contractor utilization plan: The statement, in a form
prescribed by the director, that must be submitted by a bidder or proposer
pursuant to section 3-433 and that states its plan to utilize qualified MBEs
and/or WBEs in the performance of a contract.
(16) Day: A calendar day, except as otherwise indicated.
(17) Department: The human relations department (HRD), or
the division within the city manager's office that is assigned to perform the
tasks delegated to the human relations department by this article.
(18) Department director: Person appointed by the city
manager to be responsible for a city department or the manager of procurement
services when acting on behalf of a department director or the city.
(19) Director: The director of the human relations
department or his authorized representative, or the person designated by the
city manager to perform the tasks delegated to the director of the human
relations department by this article.
(20) Disadvantaged business enterprise (DBE): A business
concern that meets the federal requirements for certification as a DBE.
(21) Expertise: Experience or training in a specialized
field that is critical to the firm’s operations, indispensable to the firm’s
potential success, and specific to the type of work the firm performs.
(22) Goal: A numerical objective stated as a percentage of
contract dollars for participation by qualified MBEs and WBEs in contracts.
(23) Invitation for bid: A request or invitation for
submission of an offer to enter into a contract pursuant to a competitive
bidding process.
(24) Kansas City metropolitan area: The Missouri counties of
Cass, Clay, Jackson and Platte and the Kansas counties of Johnson, Leavenworth
and Wyandotte.
(25) Letter of intent to subcontract: A document, in a form
prescribed by the director that demonstrates the prime contractor’s intent to
enter a contractual agreement with a selected MBE/WBE.
(26) M/W/DBE Kansas City Mo. Online Directory: A source list
compiled by the human relations department containing names and addresses of
MBE/WBE/DBEs in the business of providing construction, professional services
and other services and goods from whom bids and proposals can be solicited. The
directory is to facilitate identifying MBE/WBE/DBE subcontractors with
capabilities relevant to general contracting requirements and to particular
solicitations.
(27) Mentor/protégé: A relationship between an MBE or WBE
(protégé) and a person in the same trade or industry (mentor). The
mentor/protégé relationship is to provide technical, financial, bonding,
equipment and personnel assistance. The purpose of the relationship is to
increase the capacity of MBE/WBEs to perform contracts.
(28) Minority: A person who is a citizen or lawful permanent
resident of the United States and who is:
a. 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
b. 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
c. 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
d. Native American, a person having origins in any of the
original peoples of North America, and who maintains tribal affiliation or
demonstrates at least one-quarter descent from such groups, and who has
historically and consistently identified himself or herself as being such a
person.
(29) Minority Business Enterprise (MBE): A for-profit small
business concern that:
a. Is at least 51 percent owned, managed, and independently
controlled by one or more minorities; and
b. Has a real and substantial presence in the Kansas City
metropolitan area as defined by section 3-461(c) and
c. Meets the business size standards imposed by 13 CFR 121.201
and as subsequently amended and this ordinance; and
d. Performs a commercially useful function; and
e. Is certified by the human relations department.
Only persons
meeting each of the above criteria shall be deemed an MBE for purposes of this
article. Except as provided in section 3-435(c) any person listed as an MBE on
the M/W/DBE Kansas City Mo. Online Directory on the date a contractor
utilization plan is submitted is eligible to participate as an MBE on a
particular contract.
(30) Person: One or more individuals, corporations,
partnerships, associations, labor organizations, legal representatives, mutual
companies, joint stock companies, trusts, unincorporated organizations,
trustees, trustees in bankruptcy, receivers, fiduciaries and other
organizations; except "person" does not include any local, state or
federal governmental entity.
(31) Personal services contract: A contract or agreement of
employment with an individual who is not acting as an independent contractor
and who is not part of the city's classified or unclassified service.
(32) Principal place of business: The location at which the
business records of the MBE/WBE applicant concern are maintained and the
location at which the individual who manages the concern's day-to-day
operations spends the majority of his/her working hours.
(33) Proposal: Any offer or list of qualifications submitted
to the city in response to a request for proposal.
(34) Proposer: Any person who submits a proposal to enter
into a contract, either in response to a request for proposals, request for
qualifications or otherwise, but not pursuant to an invitation for bid.
(35) Qualified: Possessing the demonstrated ability to
perform the contracted task.
(36) Request for proposals: An invitation for submission of
an offer to enter into a contract pursuant to a negotiated process and not a
competitive bid, including requests for qualifications.
(37) Supplier: An enterprise that owns, operates or
maintains a store, warehouse or other establishment in which materials,
supplies, articles or equipment of the general character described by the
specifications and required under the contract are bought, kept in stock and
regularly sold or leased to the public in the usual course of business.
(38) Supply Broker: An enterprise that acts as an agent in
negotiating contracts for the purchase of materials, supplies, articles or
equipment but does not itself own, operate or maintain a store, warehouse or
other establishment where such materials, supplies, articles or equipments are
bought, kept in stock and regularly sold or leased to the public in the usual
course of business.
(39) Woman: A person who is a citizen or lawful permanent
resident of the United States and who is a female.
(40) Women's Business Enterprise (WBE): A for-profit small
business concern that:
a. Is at least 51 percent owned, managed, and independently
controlled by one or more women; and
b. Has a real and substantial presence in the Kansas City
Metropolitan Area as defined by section 3-461(c); and
c. Meets the business size standards imposed by 13 CFR 121.201
and as subsequently amended and this ordinance; and
d. Performs a commercially useful function; and
e. Is certified by the human relations department.
Only persons
meeting each of the above criteria shall be deemed a WBE for purposes of this
article. Except as provided in section 3-435(c) any person listed as a WBE on
the M/W/DBE Kansas City Mo. Online Directory on the date a contractor
utilization plan is submitted is eligible to participate as a WBE on a
particular contract.
Section 3-423. Application of ordinance.
(a) The provisions of
this Division shall apply to all contracts, as defined in section 3-421,
entered into by the city or an agency. Federal or state requirements for
minority or women business enterprise participation or disadvantaged business
enterprise participation shall supersede this article when required by law or
federal or state contract.
(b) Each department director
and agency head is responsible for using good faith efforts to achieve the
city-wide MBE and WBE goals set forth in section 3-429.
(c) Each person with whom the
city or an agency enters into a contract for which goals have been set shall
either:
(1) Meet or exceed the goals set for that contract; or
(2) Make and provide evidence of good faith efforts to achieve the
goals and request a waiver of the contract goals.
Section 3-425. Application to
leases, tax increment financing and tax abatement
entities.
(a) Lease of city property
for development. The provisions of this Division shall apply to all
projects on property leased by the city to any person for development of the
property by that person or any other authorized person.
(b) Projects under tax
increment financing. The tax increment financing commission shall adopt an
affirmative action program and a minority and women's business enterprise
program that is consistent with the city's affirmative action program and
minority and women's business enterprise program, as determined by the director
of human relations, and that applies to all projects financed in whole or in
part by tax increment financing as that term is used in Section 99.800, RSMo et
seq. All redevelopment agreements between the tax increment financing
commission and a redeveloper must contain MBE/WBE goals and workforce
utilization goals which are approved by the director and which are applicable
to 100 percent of all redevelopment project costs, identified within a tax
increment financing plan approved by the city council. For purposes of this
subsection, the "city's affirmative action program" and
"minority and women's business enterprise program" shall have the
same meaning as used in this Article. Developer's utilization plan must be
approved by director prior to the tax increment financing commission
reimbursing developer from tax increment financing funds.
(c) Projects under tax
abatement entities. All corporations organized under Section 353.010, RSMo
et seq. for the purpose of redevelopment within the city limits, land clearance
for redevelopment authority with an area of operation within the city and
planned industrial expansion authority for the city shall adopt an affirmative
action program and a minority and women's business enterprise program that is
consistent with the city's affirmative action program and minority and women's
business enterprise program, as determined by the director of human relations,
and that applies to all projects receiving city tax abatement in whole or in
part.
Section 3-427. City-wide goals.
(a) The goals set forth in
this section are city-wide goals to be used by city departments and agencies.
The city-wide goals are not goals for individual contracts. They are goals for
total MBE and WBE participation in contracts. The city-wide goals are
established as follows:
_____
Classification
|
Construction
|
Professional
Service
|
Other
Services
|
Materials and
Supplies
|
African American
|
9%
|
8%
|
13%
|
9%
|
Hispanic American/Latino
American
|
5%
|
3%
|
3%
|
3%
|
Native American/Asian
American/Pacific Islander American
|
1%
|
2%
|
2%
|
2%
|
White Women
|
7%
|
8%
|
10%
|
9%
|
(b) The city council shall
review the city-wide goals at least every five years and determine whether to
maintain, modify, or terminate the program, but the failure to do so shall not
invalidate the program.
(c) Neither city-wide goals
nor individual contract goals should be construed as a limitation on
contracting opportunities for the above listed classifications. Such
classifications shall be eligible to be awarded contracts consistent with
bidding or other contract procedures over and above the percentages listed.
Section 3-429. City department and agency MBE/WBE utilization
plan.
(a) Each city department and
agency shall prepare and submit to the director by April 1, unless otherwise
extended by the director, an annual MBE/WBE utilization plan for the next city
fiscal year. Each city department and agency MBE/WBE utilization plan shall
include:
(1) Separate city department or agency goals for participation by
qualified MBEs and WBEs as prime contractors and subcontractors in the
procurement of goods, professional services, services and construction for the
upcoming fiscal year. The goals should be expressed as a percentage of the city
department or agency's total fiscal year contract expenditures; and
(2) Any other information that the city department or agency or the
director deems relevant or necessary.
(b) A city department or
agency may amend its MBE/WBE utilization plan during the fiscal year to reflect
changes in its projected contract expenditures or other relevant circumstances,
and shall inform the director of such changes.
(c) In planning its
individual contracts, each city department and agency shall utilize the
methodologies described in this article and use its good faith efforts to
encourage and attempt to obtain participation of qualified MBEs and/or WBEs and
shape the scope, specifications and size of a contract to enhance such
participation.
(d) City departments and
agencies shall encourage eligible businesses to:
(1) Apply
to the human relations department, Kansas Department of Transportation (KDOT)
or Missouri Department of Transportation (MODOT) for certification; and
(2) Have
their names included on departmental bidders and proposers lists and in the
M/W/DBE Kansas City MO. On Line Directory; and
(3) Seek
pre-qualification when applicable; and
(4) Compete
for city business as prime contractors, subcontractors and suppliers.
(e) City departments and
agencies shall make reasonable efforts to:
(1) Advertise
contract opportunities in general circulation media, trade and professional
association publications, small business media, and publications of minority
and women's business organizations; and
(2) Send
written notice of specific contract opportunities to minority and women's
business organizations and those entities on the departmental bidder's and
proposer's list; and
(3) With
the assistance of the director, shape the scope, specifications and size of a
contract to enhance participation opportunities for qualified MBEs and WBEs.
(f) Each department director,
as part of his or her annual evaluation, shall be reviewed concerning the
implementation of the city's MBE/WBE program. In the event a deficiency is
found, the director of human relations or his or her designee will work with
the director to identify prohibiting factors and offer any assistance necessary
to successfully implement this program.
Section 3-431. Setting goals for individual contracts.
(a) Goals shall be
established for individual contracts when deemed practical by the director, as
determined pursuant to this section.
(b) Individual contract goals
shall be flexible and are to be determined on a contract-by-contract basis. In
determining whether goals should be established for an individual contract or
in setting the specific goal for an individual contract, the following shall be
considered:
(1) The scope of work; and
(2) The number and types of qualified MBEs and WBEs available to
perform such work, or portions of it; and
(3) Whether the contract can be structured to create potential
opportunities for qualified MBEs and WBEs to participate as subcontractors,
service providers and/or suppliers; and
(4) The level of participation of qualified MBEs and WBEs in
similar contracts awarded by other city departments and agencies, and on local
projects awarded by the state and federal governments in the previous and
current fiscal years; and
(5) The city department's or agency's progress toward meeting its
annual MBE/WBE goals and its expectations as to how future contracts will be
used toward meeting such goals; and
(6) The potential dollar amount of the contract.
(c) When goals
for individual city contracts are set, they shall be set as follows:
(1) For city construction contracts with an estimated cost of
more than $300,000.00, by the fairness in construction board upon
recommendation of the director; and
(2) For all other city contracts, by the director.
(d) When goals
are established for a contract, such goals shall be stated in any invitation
for bid or request for proposals. No invitation for bid or request for
proposals shall be released until goals have been requested and set in
accordance with subsection (c) of this section, or until the city department
soliciting the contract has been notified by the director that goals will not
be established. If the goals are to be set by the fairness in
construction board and the board shall have failed to meet for any reason
within thirty working days from the date upon which the board shall have last
convened, then the invitation for bid or request for proposals may be released
with the goals as recommended by the director and an addendum thereto shall be
issued setting forth the goals once established by the board.
(e) For contracts other than
construction contracts, the director is authorized to require a bidder or
proposer to make good faith efforts to achieve MBE/WBE participation without
setting a numerical MBE/WBE goal on the solicitation as long as the director
could have set an MBE/WBE goal based on the factors in section 3-431(b).
Section 3-433. Contractor utilization plan.
(a) When goals have been
established for a contract, each bidder or proposer shall submit a notarized
contractor utilization plan to the city or agency which shall include the
following:
(1) Names
and addresses of each qualified MBE or WBE that will participate in the
contract; and
(2) The
work to be performed by each qualified MBE and/or WBE, and the amounts each is
to be paid for such work.
(b) Bid shopping is
prohibited.
Section 3-435. Determining contract
participation credit for MBEs and WBEs.
(a) The
following contract amounts shall be credited toward achieving the goals:
(1) The total contract dollar amount that a prime contractor has
paid or is obligated to pay to a subcontractor that is a qualified MBE or WBE,
except as otherwise expressly provided for herein.
(2) Twenty-five percent of the total dollar amount paid or to be paid
by a prime contractor to obtain supplies or goods from a supplier who is a
qualified MBE or WBE.
(3) Ten percent of the total dollar amount paid or to be paid by
a prime contractor to obtain supplies or goods from a supply broker who is a
qualified MBE or WBE.
(4) One hundred percent of the total dollar amount paid or to be
paid by a prime contractor to a manufacturer of construction supplies who is a
qualified MBE or WBE.
(5) Subcontractor participation with a lower tier MBE/WBE
subcontractor by the subcontractor using one of the above methods of
participation.
(b) Notwithstanding any other
provision of this section, no credit toward achieving the goals on an
individual contract shall be given for:
(1) Participation in a contract by any qualified MBE or WBE that
does not perform a commercially useful function. The prime contractor shall
have the burden of proving that an MBE or WBE is performing a commercially
useful function.
(2) Any portion of the value of the contract that an MBE or WBE
subcontractor subcontracts back to the prime contractor or any other contractor
who is not a qualified MBE/WBE.
(3) An MBE or WBE prime contractor's own participation in its
contract with the city.
(4) Materials and supplies used on the contract unless the MBE/WBE
is responsible for negotiating price, determining quality and quantity,
ordering the materials and installing (where applicable) and paying for
material itself.
(5) Work performed by an MBE or WBE in a scope of work other than
that in which the MBE or WBE is currently certified.
(c) In order to be credited
towards the MBE or WBE goals on a particular solicitation, an application for
certification as an MBE/WBE must be filed no later than 45 days prior to the
invitation for bid, or request for proposals, or qualifications for
construction-related services. A person must have received its certification by
the date on which the bid, proposal or qualifications is due.
Section 3-437. Waiver of MBE/WBE goals.
(a) When a request for
waiver has been filed, the director may grant a full or partial waiver of
contract goals when the director has determined a bidder or proposer has not
met the goals despite its good faith efforts, as defined in section 3-441.
(b) Notwithstanding any other
provision of this Division, the city council may waive the requirements of this
article and award a city contract to a lowest and best bidder or a best
proposer if the council determines it is in the best interests of the city.
Section 3-439. Joint venture and mentor-protégé programs.
(a) The joint venture
relationship. The department shall encourage voluntary establishment of
joint ventures on all request for proposals (RFP) and requests for
qualifications (RFQ). Joint ventures have the potential to create prime
contracting opportunities for businesses that include MBE/WBEs on eligible
projects.
(1) A written joint venture agreement must be completed by all
parties to the joint venture and executed before a notary public, which clearly
delineates the rights and responsibilities of each member or partner, complies
with any requirements of the department, as set forth in RFP or RFQ documents,
and provides that the joint venture shall continue for the duration of the
project. The department shall review joint venture agreements prior to the
award of a contract to determine whether the partners, in fact, share a mutual
interest in the operation and success or failure of the joint venture. The
department may consider:
a. The initial capital investment of each joint venture partner;
and
b. The proportional allocation of profits and losses to each
venture partner, at least 40 percent of which must be allocated to the MBE or
WBE partners; and
c. The partners rights to management, control, and ownership; and
d. Whether the partners maintain a joint checking account; and
e. The method of and responsibility for accounting; and
f. The method by which disputes are resolved; and
g. Any additional or further information required by the director
or department as set forth in the request for qualifications or proposal
documents or otherwise.
(2) The joint venture, and each member of the joint venture, shall
provide the department access to review all records pertaining to joint venture
agreements before and after the award of a contract in order to reasonably
assess compliance with this article.
(3) The failure of any joint venture partner to comply with this
section shall render the joint venture agreement invalid and subject the joint
venture partners to any or all of the penalties contained in section 3-465.
(b) The mentor/protégé
certification. Mentor/protégé certifications are voluntary and designed to
provide MBE/WBE firms with advice, technical assistance and/or training. The
program is not intended to remove the responsibility of the minority or women
owner from the actual day-to-day management of their firm. The mentor/protégé
team shall perform work as designated by the mentor within its relevant scope
of work, provided however that the mentor cannot be responsible for the
management of the MBE/WBE firm and the mentor and the MBE/WBE must remain
separate and independent business entities.
(1) Mentor
companies shall require approval by the department to participate in the
program; protégé companies must meet the certification requirements of section
3-461 to participate in the program.
(2) The
mentor/protégé relationship must be established by a written agreement,
completed by both parties to the relationship, and executed before a notary
public. This agreement shall clearly delineate the rights and responsibilities
of the mentor/protégé.
(3) The
department shall review the mentor/protégé agreement for compliance with this
section prior to certifying a mentor/protégé relationship.
(4) The
mentor/protégé relationship shall exist at least three years, but no more than
five years as agreed to by the mentor/protégé team with approval by the
department. Both the mentor and protégé can terminate the relationship at any
time for any reason and must notify the director of the termination in writing.
(5) A
mentor may utilize multiple protégés on a city contract but may have no more
than three protégés at any one time, each of which shall be mentored in
different commercially useful functions.
(6) A
protégé is limited to two mentor/protégé relationships as a participant in the
MBE/WBE program, and each relationship must be with a different mentor.
(7) During
the term of the mentor/protégé certification, the mentor and protégé businesses
must each provide to the department a quarterly summary of the mentor skills
provided to the protégé, which shall include:
a. The
time spent between mentor and protégé business in furtherance of the
mentor/protégé relationship; and
b. The
nature and extent of managerial, technical, financial and/or bonding assistance
provided; and
c. A
summary and explanation of any projects bid on or undertaken by the
mentor-protégé team in the private sector or for a governmental entity other
than the city; and
d. Any
additional or further information required by the department or agency as set
forth in bid documents or otherwise.
(8) Assistance
the mentor may provide the protégé includes, but is not limited to, the
following:
a. Extending
financial assistance, in the forms of time notes, loans and stock purchases;
and
b. Providing
technical advice, including cost accounting, estimating, training, plan
interpretation, business management, loan packaging, financial counseling, and
advice relevant to the success of the particular type of business concern; and
c. Providing
equipment and personnel for specific and limited purposes, provided that the
equipment and personnel is clearly identified through lease agreements and
personnel records, and the protégé exercise the necessary control of personnel
and equipment within the normal course of business practice regardless of how
the personnel and equipment are acquired; and
d. Providing
bonding by either bonding or guaranteeing the bonding on a project-by-project
basis, provided that the mentor and protégé create a development plan that
includes provisions for ensuring that the protégé acquires the ability to
independently bond its projects; and
e. Providing
office space, clerical assistance, and other assistance at below market rates.
(9) The
following practices within the mentor/protégé relationship are prohibited:
a. A
mentor requiring, or a protégé voluntarily entering, an agreement with the
mentor to have an exclusive bidding agreement; and
b. Subcontracting
arrangements created to artificially inflate MBE/WBE participation; and
c. Formal
or informal agreements that unreasonably limit the protégés control or
management of its company; and
d. A
mentor entering into any agreement on behalf of the protégé; and
e. An
employer/employee relationship between the mentor and protégé at any time
during the term of the mentor/protégé relationship.
(10) Termination
of the mentor/protégé relationship. Either party to the mentor/protégé
relationship may terminate the relationship at will. The department may
terminate the mentor/protégé relationship for good cause shown. At the end of
the certification, the mentor shall no longer provide the protégé with any
assistance and a protégés acceptance of such assistance shall result in the
protégé not meeting the eligibility requirements for MBE/WBE certification.
(11) Mentor/protégé
business thresholds.
a. Notwithstanding
anything to the contrary herein, a mentors business with a protégé shall not
exceed the following amounts:
i. End
of year 1: 80 percent of the protégés gross receipts;
ii. End
of year 2: 70 percent of the protégés gross receipts;
iii. End
of year 3: 60 percent of the protégés gross receipts;
iv. End of
year 4: 50 percent of the protégés gross receipts;
v. End of
year 5: 50 percent of the protégés gross receipts;
unless the director approves a
waiver for good cause or the protégé does not exceed the limitation applicable
to the previous year.
b. If the
protégé is in its second mentor/protégé relationship, a mentors business with a
protégé shall not exceed the following amounts:
i. End
of year 1: 50 percent of the protégés gross receipts;
ii. End
of year 2: 50 percent of the protégés gross receipts;
iii. End
of year 3: 40 percent of the protégés gross receipts;
iv. End of
year 4: 30 percent of the protégés gross receipts;
v. End of
year 5: 30 percent of the protégés gross receipts.
Section 3-441. Standards to determine good faith efforts.
(a) Good faith efforts are
efforts that, given all relevant circumstances, a bidder or proposer actively
and aggressively demonstrates in attempting to meet the prescribed goals. Good
faith efforts must be demonstrated to be meaningful and not merely formalistic
compliance. In evaluating good faith efforts made toward achieving the goals,
the director may consider whether the bidder or proposer has performed the
following, along with any other relevant factors:
(1) Advertised
opportunities to participate in the contract in general circulation media,
trade and professional association publications, small and minority business
media, and publications of minority and women's business organizations in
sufficient time to allow MBE and WBE firms to participate effectively;
(2) Provided
notice to a reasonable number of minority and women's business organizations of
specific opportunities to participate in the contract in sufficient time to
allow MBE and WBE firms to participate effectively;
(3) Sent
written notices, by certified mail, e-mail or facsimile, to qualified MBEs and
WBEs soliciting their participation in the contract in sufficient time to allow
them to participate effectively;
(4) Attempted
to identify portions of the work for qualified MBE and/or WBE participation in
order to increase the likelihood of meeting the goals, including breaking down
contracts into economically feasible units;
(5) Requested
assistance in achieving the goal from the director and acted on the director's
recommendations;
(6) Conferred
with qualified MBEs and WBEs and explained the scope and requirements of the
work for which their bids or proposals were solicited;
(7) Attempted
to negotiate in good faith with qualified MBEs and WBEs to perform specific
subcontracts, not rejecting them as unqualified without sound reasons based on
a thorough investigation of their capabilities;
(8) Attended
pre-bid meetings when such meetings were indicated.
(b) Additional standards for
construction contracts: Within five business days after drawing the bid
specifications, the bidder will have sent certified letters, verifiable e-mails
or proof of facsimiles to qualified MBEs and WBEs listed on the M/W/DBE Kansas
City Mo. Online Directory.
(c) A bidder or proposer
shall submit documentation of its good faith efforts when requested by the city
or agency.
(d) Good faith efforts shall
be made prior to submission of the contractor utilization plan.
Section 3-443. Modification or substitution.
(a) A bidder, proposer or
contractor shall not make any modification or substitution with regard to the
contractor utilization plan unless the modification or substitution has first
been requested and approved by the director. After bid or proposal opening or
after a contract is awarded, the director may approve substitutions of other
qualified MBE/WBEs for those listed in the contractor utilization plan or
approve modifications of the amount of participation listed in the contractor
utilization plan, if the director finds that the bidder, proposer or contractor
made and provided evidence of good faith efforts to substitute the listed
MBE/WBE with other qualified MBE/WBEs for the listed scope of work or any other
scope of work in the project and also finds one of the following:
(1) The
listed MBE/WBE is non-responsive or cannot perform; or
(2) The
listed MBE/WBE has increased its previously quoted price to the bidder,
proposer or contractor without a corresponding change in the scope of the work;
or
(3) The
listed MBE/WBE has committed a material default or breach of its contract with
the contractor; or
(4) Requirements
of the scope of work of the contract have changed and render subcontracting not
feasible or not feasible at the levels required by the goals established for
the contract; or
(5) The
listed MBE/WBE is unacceptable to the contracting department; or
(6) The
listed MBE/WBE thereafter had its certification revoked; or
(7) The
bidder, proposer or contractor has not attempted intentionally to evade the
requirements of this article and it is in the best interests of the city to
allow a modification or substitution.
(b) If there is an increase
in the quantity of the scope of work performed by an MBE/WBE, contractor shall
make good faith efforts to use such MBE/WBE for the increased work. If extra
work not within the general scope of the contract and in excess of $117,000.00
is required, the director shall assign MBE/WBE goals for the extra work, if
appropriate, and the contractor shall make good faith efforts under the
circumstances to achieve those goals.
(c) Bid shopping is
prohibited.
Section 3-445. Contract award process.
(a) Whenever a bidder or
proposer has submitted a bid or proposal that is not in material compliance
with the requirements of this article, the contracting department or agency
shall reject the bid or proposal unless the goals are waived pursuant to
section 3-437.
(b) If, after a contract is
awarded, it is determined that a solicitation or award is in violation of this
article, the contractor may continue performance if the department director or
agency head makes a written determination that it is in the best interests of
the city or the agency, without prejudice to any other legal remedies available
to it under the contract.
Section 3-447. Liquidated damages.
All contracts which contain
goals shall contain a provision which provides for liquidated damages in the
event the contractor fails to achieve the MBE/WBE participation specified in
the contractor utilization plan as finally approved by the director. The
liquidated damages may not exceed the difference between the monetary amount of
the MBE/WBE participation finally approved by the director and the amount
actually paid to qualified MBEs and WBEs. In determining the amount actually
paid to qualified MBEs and WBEs, no credit shall be given for that portion of
the MBE/WBE participation that was not approved in accordance with the
provisions of
section 38-94,
provided however that the director may allow credit if he determines, in his
sole discretion, that the contractor acted in good faith.
Section 3-449. Fairness in city contracts board.
(a) There is hereby
established a fairness in city contracts board. The board may make
recommendations to the director on methodology to increase the utilization of
MBEs/WBEs in professional services contracts, other services contracts, goods,
materials and supplies contracts.
(b) Board composition. The
board shall be composed of seven members (including a chairperson) and six
alternates, all appointed by the mayor. Members of the city council and
employees of the city are ineligible for appointment.
(c) Board members and
alternates shall be residents of the city, provided however that nonresidents
may serve if they work in the Kansas City metropolitan area or are appointed to
represent the interests of an organization that maintains an office in the
Kansas City metropolitan area.
(d) The terms of all board
members shall be for a period of four years. Board members serving as of the
effective date of this ordinance shall retain their seats for the remainder of
their unexpired terms, after which they shall vacate their seats if not
reappointed by the mayor.
(e) Alternates. In the event
a board member is unable to attend a meeting or has a conflict of interest with
regard to an issue at hand, the alternate shall temporarily serve in such
member's stead. It is the board member's responsibility to notify his or her alternate
that they may be needed at the meeting. The term of an alternate shall expire
at the expiration of the term of the board member.
(f) In the event the
chairperson is not in attendance at any board meeting, a majority of board
members shall select a member to act as chairperson for that meeting.
(g) The board is hereby
authorized to establish its own rules and regulations to implement this charge.
Section 3-451. Fairness in construction board.
(a)
There is hereby established the city fairness in construction board. The
board’s jurisdiction is limited to city construction bids, proposals and
contracts in which the estimated cost thereof is more than $300,000.00. The
board’s authority is limited to setting goals for each such city contract and
hearing and investigating appeals set forth in section 3-453 hereof arising
from bids, proposals and contracts under its jurisdiction.
(b) Board composition: The
board shall be composed of seven members and six alternates appointed by the
mayor, as follows:
(1) One
member and one alternate recommended by the Builders' Association; and
(2) One
member and one alternate recommended by the Heavy Constructors' Association;
and
(3) One
member and one alternate recommended by the Minority Contractors' Association
of Kansas City; and
(4) One
member and one alternate recommended by the Kansas City Hispanic Association
Contractors Enterprise, Inc.; and
(5) One
member and one alternate recommended jointly by the Women Construction Owners
and Executives and National Association of Women in Construction; and
(6) One
member and one alternate jointly recommended by the Heavy Constructors
Association and Builders Association; and
(7) Chairperson
appointed by the mayor and submitted to the entities named in section 3-451(b)(1)—(6)
for approval. Any one of the named entities can veto the mayor's submission and
require another submission.
(c) The terms of all board
members shall be for a period of four years. Board members serving as of the
effective date of this ordinance shall retain their seats for the remainder of
their unexpired terms, after which they shall vacate their seats if not
reappointed by the mayor.
(d) Alternates. 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) Ineligible for
appointment. The following are ineligible to serve on the fairness in
construction board:
(1) Members
of the city council; and
(2) Employees
of the city; and
(3) Nonresidents
of the city, unless the nonresident works in the Kansas City metropolitan area
or is appointed to represent the interests of an organization that maintains an
office in the Kansas City metropolitan area.
(f) Conflict of interest. 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 board, the alternate shall recuse
himself.
(g) In the event the
chairperson is not in attendance at any board meeting, a majority of board
members shall select a member to act as chairman for that meeting.
(h) Quorum. Four members of
the board shall constitute a minimum quorum unless otherwise increased by board
rules.
Section 3-453. Responsibilities of the fairness in construction board.
(a) Goal
setting. Prior to solicitation, the department and appropriate city staff shall
present to the board recommended MBE/WBE goals for each proposed construction
contract. The board shall determine whether any goals are appropriate and, if
so, shall set the goals in conformance with section 3-431 hereof. The goals
shall be included in the invitation for bid or request for proposals. Except as
otherwise provided in section 3-431(d) hereof, no invitation for bid or request
for proposals shall be released until goals have been requested and set, or
until the city department soliciting the contract has been notified by the
director that goals will not be established.
(b) Any bidder
or proposer on a city construction project that has an estimated cost of over
$300,000.00 may, prior to award of the construction contract, appeal to the
board any determination by the director concerning the following issues:
(1) Waiver of the individual contract goals pursuant to section
3-437(a); or
(2) Substitution of an MBE/WBE listed on a contractor utilization
plan pursuant to section 3-443; or
(3) Modification of the percentage of the participation on a
contractor utilization plan pursuant to section 3-443.
(c) Any
contractor on a city construction contract over $300,000.00 may appeal to the
board any determination by the director concerning the following issues:
(1) MBE/WBE contract credit towards meeting the percentage of
MBE/WBE participation identified in the contractor utilization plan; or
(2) Liquidated damages; or
(3) Substitution of an MBE/WBE listed on a contractor utilization
plan pursuant to section 3-443; or
(4) Modification of the percentage of the participation on a
contractor utilization plan pursuant to section 3-443.
(d) Appeals
shall be made to the fairness in construction board by filing with the director
within ten working days after notice of the director's determination a written
request for review by the board, stating the grounds of such appeal with
specificity. The director shall promptly forward a copy of any appeal to the
chairperson and members of the board.
(e) Failure to
file a timely appeal shall constitute a waiver of the right of a bidder,
proposer or contractor to appeal the director's determination and such person
shall be estopped to deny the validity of any determination which could have
been timely appealed.
(f) Authority of
board. The board shall hold a hearing within twenty working days of the date of
filing of a timely appeal. The failure to hold the hearing within the
prescribed time shall result in the director’s determination being overturned
without further action, unless the delay was requested or caused by the party
filing the appeal. The board shall have authority to investigate appeals,
rejecting those it determines to be frivolous and without merit. The board
shall have the power to inquire into all the facts and circumstances of appeals
within its jurisdiction and may hold investigative hearings for such purpose.
The board may reverse, affirm or modify determinations of the director set
forth in subsections (b) and (c) hereof. The board shall issue a written report
of its decision within ten working days from the start of the hearing and its
decision shall be final for all purposes. Notwithstanding the foregoing, the
city council shall retain the right to waive any provision of this article in
accordance with section 3-437(b).
(g)
Intervention. Any bidder, proposer or contractor whose interests will be
affected by any appeal may be permitted by the board to intervene in the
appeal.
(h) In the
event an appeal is pending before the fairness in construction board and the
project is presented to the city council for consideration prior to the board's
issuance of its decision, the city council shall be notified by including in
the fact sheet notification that there is an appeal pending before the board.
The city council may elect to delay award of the project until after the board
issues its decision.
(i) Any bidder,
proposer or contractor may notify the board of the director's failure to make a
determination or take action within the time required by this article and the
board has the authority to inquire into the circumstances of the matter.
Section 3-455. Procedures for construction contracts.
The following
shall apply to construction contracts in which the estimated cost thereof is
more than $300,000.00:
(1) Bid submissions. Bidders shall submit an affidavit of
intended utilization with their bid.
(2) Forty-eight hour submissions. Bidders shall submit the
following within 48 hours after bid opening:
a. A notarized contractor utilization plan in conformance with
section 3-433 hereof; and
b. Letters of intent to subcontract; and
c. A request for waiver of the contract goals pursuant to
section 3-437(a) if the bidder failed to meet or exceed the goals.
(3) Timely submission of the contractor utilization plan is a
material element of the submission.
(4) The apparent successful bidder shall submit documentation of
good faith efforts made prior to 48 hours after bid opening when requested by
the city or the agency. The director is authorized to extend the 48 hour
deadline for the letters of intent to subcontract but not the deadline for
submission of the contractor utilization plan.
(5) A notarized affidavit certifying actual MBE/WBE participation
in the contract, including the names of such MBE/WBEs and the participation
amount, and a certification that all MBE/WBE subcontractors and other
subcontractor have been paid must be submitted by the contractor prior to the
city's release of retainage under the contract.
(6) Any increase in the amount of MBE/WBE participation after
submission of the contractor utilization plan shall not count toward meeting
the contract goals, unless otherwise permitted under section 3-443 hereof.
(7) Bid shopping is prohibited.
Section 3-457. Procedures for all other contracts.
The following procedures shall
apply to all contracts not covered by 3-455, and for which goals have been established:
(1) For
contracts awarded pursuant to competitive bidding, bidders shall submit an
affidavit of intended utilization with their bid. Within 48 hours after bid
opening, they shall submit the following additional documentation:
a. A
notarized contractor utilization plan in conformance with section3-433 hereof;
and
b. Letters
of intent to subcontract; and
c. A
request for waiver of contract goals pursuant to section 3-437(a) if the bidder
failed to meet or exceed the goals.
(2) For
contracts awarded pursuant to requests for proposals, proposers shall submit an
affidavit of intended utilization with their proposal. Prior to the award of
any contract, they shall submit the following additional documentation:
a. A
notarized contractor utilization plan in conformance with section 3-433 hereof;
and
b. Letters
of intent to subcontract; and
c. A
request for waiver of the contract goals pursuant to section 3-437(a) if the
proposer fails to meet or exceed the goals.
(3) Documentation
of good faith efforts shall be submitted when requested by the city or the
agency. The director is authorized to extend the 48-hour deadline for the
letters of intent to subcontract but not the deadline for submission of the
contractor utilization plan.
(4) Any
increase in the amount of MBE/WBE participation after submission of the
contractor utilization plan shall not count toward meeting the contract goals,
unless otherwise permitted under section 3-443 hereof. Timely submission of the
contractor utilization plan is a material element of the bid submission.
Section 3-459. Required reporting for city contractors.
All contractors with a
contractor utilization plan shall provide any and all information required by
the director in a format prescribed by the director in such intervals as the
director may determine.
Section 3-461. Certification and appeals.
(a) To ensure that this
article benefits only MBEs and WBEs that are owned and controlled by bona fide
minorities and women, the director shall certify MBEs and WBEs and
mentor/protégés who wish to participate in the program. Any person not
certified by the human relations department shall not be regarded as an MBE,
WBE, or mentor/protégé program under this article.
(b) Each person that seeks
certification as an MBE/WBE must demonstrate by written documentation or
affidavit that it has suffered from past race or gender discrimination in the
city and in the applicable trade or industry. A unified certification process
(UCP) certificate, a Missouri Highway and Transportation Department
certification or a Kansas Department of Transportation certification along with
the documentation stated in this subsection, is sufficient for certification as
a DBE so long as the firm has never been denied certification by any federal,
state or local authority at any time and meets the definition of section
3-421(a)(20) and the requirements of this section.
(c) Each person that seeks
certification as an MBE/WBE in the Kansas City metropolitan area must
demonstrate the business enterprise has a real and substantial presence. After
the effective date of this provision, any business enterprise shall be deemed
to have a real and substantial presence in the Kansas City metropolitan area
if:
(1) The
firm's principal office or place of business is in the Kansas City metropolitan
area; and
(2) The
firm maintains full-time employees in one or more of the firm's offices within
the Kansas City metropolitan area to conduct or solicit business in the Kansas
City metropolitan Area the majority of their working time; and
(3) The
firm has transacted business more than once in the Kansas City metropolitan
area within the last three years; and
(4) The
firm has been in existence in the Kansas City metropolitan area at least one
year prior to application for participation in the MBE/WBE program.
If an MBE/WBE does not have a
real and substantial presence in the Kansas City metropolitan area as specified
under subsection (c)(1) through (c)(4), the firm shall remain certified until
their certification expires. After the firm's certification expires, the firm
must meet the requirements of subsection (c)(1) through (c)(4) to be
recertified.
(d) All applicants and
certified businesses shall be subject to an audit by the director at any time.
An applicant's or certified business' refusal to facilitate an audit shall be
grounds for denial of its certification application or revocation of its
certification.
(e) All applicants and
certified businesses shall be required to demonstrate and prove that the
business has the skill and expertise to perform as a subcontractor in the
particular area of work for which it is requesting listing or is listed on the
M/W/DBE Kansas City, Mo. Online Directory.
(f) All applicants and
certified businesses shall submit such information or documentation as may be
required by the director in connection with its certification as an MBE or WBE,
including, but not limited to current licenses and federal, state and local tax
returns and schedules (business and personal), and all other forms that are
required to be included with or attached to the return at the time of filing.
Failure to submit such information or documentation shall result in the denial
of its certification application or revocation of its certification.
(g) A certification
application may be withdrawn by an applicant without prejudice at any time
prior to an on-site audit. All applications and documentation submitted to
support an application will not be returned to the applicant. Following the
withdrawal of a certification application, the applicant may not reapply for
certification for a period of one year from the date of withdrawal of the
application.
(h) Burden of proof in the
certification process. The firm seeking certification has the burden of
demonstrating to the director, by a preponderance of the evidence, that it
meets all the requirements for certification. The director shall make
determinations concerning whether individuals and firms have met their burden
of demonstrating minority and woman status, business size, expertise,
commercially useful function, ownership, management, independence and control
by considering all the facts in the record, viewed as a whole.
(i) Determination of minority
and woman status. If the director has reason to question whether an individual
is a minority or woman, the director shall require the individual to
demonstrate, by a preponderance of the evidence, that he or she is a minority
or woman. In making such a determination, the director must consider whether
the person has held himself or herself out to be a minority or woman over a
long period of time prior to application for certification and whether the
person is regarded as such by the relevant community. Evidence of active
participation in relevant community organizations will be considered in such
determinations. The director may require the applicant to produce appropriate
documentation.
(j) Business size
determinations. To be an MBE/WBE, a firm (including its affiliates) must be an
existing and currently functioning small business. The director shall apply the
SBA business size standard(s) found in 13 CFR part 121.201 and as amended as of
the date of application and appropriate to the type(s) of work the firm seeks
to perform.
(k) Determination of
ownership. In determining whether the minority or women participants in a firm
own the firm, the director shall consider all the facts in the record, viewed
as a whole.
(1) To be
an MBE/WBE, a firm must be at least 51 percent owned by one or more minority
and women individuals, reflected as follows:
a. In the
case of a corporation, such individuals must own at least 51 percent of each
class of voting stock outstanding and 51 percent of the aggregate of all stock
outstanding.
b. In the
case of a partnership, 51 percent of each class of partnership interest must be
owned by minority and women. Such ownership must be reflected in the firm's
partnership agreement.
c. In the
case of a limited liability company, at least 51 percent of each class of member
interest must be owned by the minority and women individuals.
(2) The
firm's ownership by minority or women must be real, substantial, and
continuing, going beyond pro forma ownership of the firm as reflected in
ownership documents. The minority or women owners must enjoy the customary
incidents of ownership, and share in the risks and profits commensurate with
their ownership interests, as demonstrated by the substance, not merely the
form, of arrangements.
(3) All
securities that constitute ownership of a firm shall be held directly by the
minorities or women. Except as provided in this subsection (3), no securities
or assets held in trust, or by any guardian for a minor, are considered as held
by minority or women individuals in determining the ownership of a firm.
However, securities or assets held in trust are regarded as held by a minority
or woman for purposes of determining ownership of the firm, if:
a. The
beneficial owner of securities or assets held in trust is a minority or woman,
and the trustee is the same or another such individual; or
b. The
beneficial owner of a trust is a minority or woman who, rather than the
trustee, exercises effective control over the management, policy-making, and
daily operational activities of the firm. Assets held in a revocable living
trust may be counted only in the situation where the same minority or woman is
the sole grantor, beneficiary, and trustee.
(4) The
contributions of capital or expertise by the minority or women owners to
acquire their ownership interests must be real and substantial. Examples of
insufficient contributions include a promise to contribute capital, an
unsecured note payable to the firm or an owner who is not a disadvantaged
individual, or mere participation in a firm's activities as an employee. Debt
instruments from financial institutions or other organizations that lend funds
in the normal course of their business do not render a firm ineligible, even if
the debtor's ownership interest is security for the loan.
(5) In
situations where expertise is relied upon as part of a minority or woman owner's
contribution to acquire ownership:
a. The
owner's expertise must be:
i. In a
specialized field; and
ii. In
areas critical to the firm's operations; and
iii. Indispensable
to the firm's potential success; and
iv. Specific
to the type of work the firm performs; and
v. Documented
in the records of the firm. These records must clearly show the contribution of
expertise and its value to the firm.
b. The
individual whose expertise is relied upon must have a significant financial
investment in the firm.
(6) The
director shall always deem as held by a minority or woman individual, for
purposes of determining ownership, all interests in a business or other assets
obtained by the individual:
a. As the
result of a final property settlement or court order in a divorce or legal
separation, provided that no term or condition of the agreement or divorce
decree is inconsistent with this section; or
b. Through
inheritance, or otherwise because of the death of the former owner.
(7) Presumptions
regarding interests obtained without consideration:
a. The
director shall presume as not being held by a minority or woman individuals,
for purposes of determining ownership, all interests in a business or other
assets obtained by the individual as the result of a gift, or transfer without
adequate consideration, from any non-minority or male individual or non-MBE/WBE
firm who is:
i. Involved
in the same firm for which the individual is seeking certification, or an
affiliate of that firm; or
ii. Involved
in the same or a similar line of business; or
iii. Engaged
in an ongoing business relationship with the firm, or an affiliate of the firm,
for which the individual is seeking certification.
b. To
overcome this presumption and permit the interests or assets to be counted, the
minority or woman individual must demonstrate to the director, by clear and
convincing evidence, that:
i. The
gift or transfer to the disadvantaged individual was made for reasons other
than obtaining certification as an MBE/WBE; and
ii. The
minority or woman individual actually controls the management, policy, and
operations of the firm, notwithstanding the continuing participation of
non-minority or male individual or non-MBE/WBE firm who provided the gift or
transfer.
(8) The
director shall apply the following rules in situations in which marital assets
form a basis for ownership of a firm:
a. When
marital assets (other than the assets of the business in question), held
jointly or as community property by both spouses, are used to acquire the
ownership interest asserted by one spouse, the director shall deem the
ownership interest in the firm to have been acquired by that spouse with his or
her own individual resources, provided that the other spouse irrevocably
renounces and transfers all rights in the ownership interest in the manner
sanctioned by the laws of the state in which either spouse or the firm is
domiciled. The director shall not count a greater portion of joint or community
property assets toward ownership than state law would recognize as belonging to
the minority or woman owner of the applicant firm.
b. A copy
of the document legally transferring and renouncing the other spouse's rights
in the jointly owned or community assets used to acquire an ownership interest
in the firm must be included as part of the firm's application for MBE/WBE
certification.
(9) The
Director may consider the following factors in determining the ownership of a
firm. However, the director must not regard a contribution of capital as
failing to be real and substantial, or find a firm ineligible, solely because:
a. A
minority or woman individual acquired his or her ownership interest as the
result of a gift, or transfer without adequate consideration, other than the
types set forth in subsection (7) of this section; or
b. There
is a provision for the co-signature of a spouse who is not a minority or woman
individual on financing agreements, contracts for the purchase or sale of real
or personal property, bank signature cards, or other documents; or
c. Ownership
of the firm in question or its assets is transferred for adequate consideration
from a spouse who is not a minority or woman to a spouse who is such an
individual. In this case, the director must give particularly close and careful
scrutiny to the ownership and control of a firm to ensure that it is owned and
controlled, in substance as well as in form, by a minority or woman individual.
(l) Determinations concerning
control. In determining whether the minority or women owners control a firm,
the director must consider all the facts in the record, viewed as a whole.
(1) Only
an independent business may be certified as an MBE/WBE. An independent business
is one the viability of which does not depend on its relationship with another
firm or firms.
a. In
determining whether a potential MBE/WBE is an independent business, the
director must scrutinize relationships with non-MBE/WBE firms, in such areas as
personnel, facilities, equipment, financial and/or bonding support, and other
resources.
b. The
director must consider whether present or recent employer/employee
relationships between the minority or woman owner(s) of the potential MBE/WBE
and non-MBE/WBE firms or persons associated with non-MBE/WBE firms compromise
the independence of the potential MBE/WBE firm.
c. The
director must examine the firm's relationships with prime contractors to
determine whether a pattern of exclusive or primary dealings with a prime
contractor compromises the independence of the potential MBE/WBE firm.
d. In considering
factors related to the independence of a potential MBE/WBE firm, the director
must consider the consistency of relationships between the potential MBE/WBE
and non-MBE/WBE firms with normal industry practice.
(2) An
MBE/WBE firm must not be subject to any formal or informal restrictions which
limit the customary discretion of the minority or women owners. There can be no
restrictions through corporate charter provisions, by-law provisions, contracts
or any other formal or informal devices (e.g., cumulative voting rights, voting
powers attached to different classes of stock, employment contracts,
requirements for concurrence by non-disadvantaged partners, conditions
precedent or subsequent, executory agreements, voting trusts, restrictions on or
assignments of voting rights) that prevent the minority or women owners,
without the cooperation or vote of any non-minority or male, from making any
business decision of the firm. This paragraph does not preclude a spousal
co-signature on documents.
(3) The
minority and women owners must possess the power to direct or cause the
direction of the management and policies of the firm and to make day-to-day as
well as long-term decisions on matters of management, policy and operations.
a. A
minority or women owner must hold the highest officer position in the company
(e.g., chief executive officer or president).
b. In a
corporation, minority or women owners must control the board of directors.
c. In a
partnership, one or more minorities or women owners must serve as general
partners, with control over all partnership decisions.
(4) Individuals
who are not minorities or women may be involved in an MBE/WBE firm as owners,
managers, employees, stockholders, officers, and/or directors. Such individuals
must not, however, possess or exercise the power to control the firm, or be
disproportionately responsible for the operation of the firm.
(5) The
minority and women owners of the firm may delegate various areas of the
management, policymaking, or daily operations of the firm to other participants
in the firm, regardless of whether these participants are minority or women.
Such delegations of authority must be revocable, and the minority and women
owners must retain the power to hire and fire any person to whom such authority
is delegated. The managerial role of the minority and women owners in the
firm's overall affairs must be such that the recipient can reasonably conclude
that the minority and women owners actually exercise control over the firm's operations,
management, and policy.
(6) The
minority and women owners must have an overall understanding of, and managerial
and technical competence and experience directly related to, the type of
business in which the firm is engaged and the firm's operations. The minority
and women owners are not required to have experience or expertise in every
critical area of the firm's operations, or to have greater experience or
expertise in a given field than managers or key employees. The minority and
women owners must have the expertise, technical competence, and ability to
intelligently and critically evaluate information presented by other
participants in the firm's activities and to use this information to make
independent decisions concerning the firm's daily operations, management, and
policymaking. Generally, expertise limited to office management,
administration, or bookkeeping functions unrelated to the principal business
activities of the firm is insufficient to demonstrate control.
(7) If
state or local law requires the persons to have a particular license or other
credential in order to own and/or control a certain type of firm, then the
minority or women persons who own and control a potential MBE/WBE firm of that
type must possess the required license or credential. If state or local law
does not require such a person to have such a license or credential to own
and/or control a firm, the director must not deny certification solely on the
ground that the person lacks the license or credential. However, the director
may take into account the absence of the license or credential as one factor in
determining whether the minority or women owners actually control the firm.
(8) The
director may consider differences in remuneration between the minority and
women owners and other participants in the firm in determining whether to
certify a firm as an MBE/WBE. Such consideration shall be in the context of the
duties of the persons involved, normal industry practices, the firm's policy
and practice concerning reinvestment of income, and any other explanations for
the differences proffered by the firm. The director may determine that a firm
is controlled by its minority or woman owner although that owner's remuneration
is lower than that of some other participants in the firm. In a case where a
non-minority or non-woman individual formerly controlled the firm, and a
minority or women individual now controls it, the director may consider a
difference between the remuneration of the former and current controller of the
firm as a factor in determining who controls the firm, particularly when the
non-minority or non-woman individual remains involved with the firm and
continues to receive greater compensation than the minority or woman
individual.
(9) In
order to be viewed as controlling a firm, a minority or woman owner cannot
engage in outside employment or other business interests that conflict with the
management of the firm or prevent the individual from devoting sufficient time
and attention to the affairs of the firm to control its activities. For
example, absentee ownership of a business and part-time work in a full-time
firm are not viewed as constituting control. However, an individual could be
viewed as controlling a part-time business that operates only on evenings
and/or weekends, if the individual controls it all the time it is operating.
(10) A
minority or woman individual may control a firm even though one or more of the
individual's immediate family members (who themselves are not minorities or
women) participate in the firm as a manager, employee, owner, or in another
capacity. Except as otherwise provided in this paragraph, the director must
make a judgment about the control the minority or woman owner exercises
vis-a-vis other persons involved in the business as in other situations,
without regard to whether or not the other persons are immediate family
members. If the director cannot determine that the minority or woman owners, as
distinct from the family as a whole, control the firm, then the minority or
woman owners have failed to carry their burden of proof concerning control,
even though they may participate significantly in the firm's activities.
(11) Where a
firm was formerly owned and/or controlled by a non-minority or non-woman
individual (whether or not an immediate family member), ownership and/or
control were transferred to a minority or woman individual, and the
non-minority or non-woman individual remains involved with the firm in any
capacity, the minority or woman individual now owning the firm must demonstrate
to the director, by clear and convincing evidence, that:
a. The transfer of ownership
and/or control to the minority or woman individual was made for reasons other
than obtaining certification as an MBE/WBE; and
b. The minority or woman
individual actually controls the management, policy, and operations of the
firm, notwithstanding the continuing participation of a non-minority or
non-woman individual who formerly owned and/or controlled the firm.
(12) In
determining whether a firm is controlled by its minority or women owners, the
director shall consider whether the firm owns equipment necessary to perform
its work. However, the director must not determine that a firm is not
controlled by minority or women individuals solely because the firm leases,
rather than owns, such equipment, where leasing equipment is a normal industry
practice and the lease does not involve a relationship with a prime contractor
or other party that compromises the independence of the firm.
(13) The
director shall grant certification to a firm only for specific types of work in
which they are currently functioning and in which the minority or women owners
have the ability to control the firm. To become certified in an additional type
of work, the firm needs to demonstrate to the director that its minority or
women owners are able to control the firm with respect to that type of work.
The director may not, in this situation, require that the firm be recertified
or submit a new application for certification, but must verify the minority or
women owner's control of the firm in the additional type of work.
(14) A
business operating under a franchise or license agreement may be certified if
it meets the standards in this subpart and the franchiser or licenser is not
affiliated with the franchisee or licensee. In determining whether affiliation
exists, the director should generally not consider the restraints relating to
standardized quality, advertising, accounting format, and other provisions
imposed on the franchisee or licensee by the franchise agreement or license,
provided that the franchisee or licensee has the right to profit from its
efforts and bears the risk of loss commensurate with ownership. Alternatively,
even though a franchisee or licensee may not be controlled by virtue of such
provisions in the franchise agreement or license, affiliation could arise
through other means, such as common management or excessive restrictions on the
sale or transfer of the franchise interest or license.
(15) In
order for a partnership to be controlled by minority or women individuals, any
non-minority or non-women partners must not have the power, without the
specific written concurrence of the minority or women partner(s), to contractually
bind the partnership or subject the partnership to contract or tort liability.
(16) The
minority or women individuals controlling a firm may use a professional and
commercial employee leasing company. The use of such a company does not
preclude the minority or woman individuals from controlling their firm if they
continue to maintain an employer-employee relationship with the leased
employees. This includes being responsible for hiring, firing, training,
assigning, and otherwise controlling the on-the-job activities of the
employees, as well as ultimate responsibility for wage and tax obligations
related to the employees.
(17) The
director may consider, in making certification decisions, whether a firm has
exhibited a pattern of conduct indicating its involvement in attempts to evade
or subvert the intent or requirements of the MBE/WBE program.
(18) The
director shall evaluate the eligibility of a firm on the basis of present
circumstances. The director shall not refuse to certify a firm based solely on
historical information indicating a lack of ownership or control of the firm by
the minorities or women at some time in the past, if the firm currently meets
the ownership and control standards of this part.
(19) MBE/WBE
firms and firms seeking MBE/WBE certification shall cooperate fully with the
director's requests (and DOT requests) for information relevant to the
certification process. Failure or refusal to provide such information is a
ground for a denial or removal of certification.
(20) An
eligible MBE/WBE firm must be owned by individuals who are minorities and
women. Except as provided in this paragraph, a firm that is not owned by such
individuals, but instead is owned by another firm—even an MBE/WBE firm—cannot
be an eligible MBE/WBE.
a. If the
minorities or women own and control a firm through a parent or holding company,
established for tax, capitalization or other purposes consistent with industry
practice, and the parent or holding company in turn owns and controls an
operating subsidiary, the director may certify the subsidiary if it otherwise
meets all requirements of this section. In this situation, the individual
owners and controllers of the parent or holding company are deemed to control
the subsidiary through the parent or holding company.
b. The
director may certify such a subsidiary only if there is cumulatively 51 percent
ownership of the subsidiary by the minority and women individuals. The
following examples illustrate how this cumulative ownership provision works:
Example 1: Minority and women
individuals own 100 percent of a holding company, which has a wholly-owned
subsidiary. The subsidiary may be certified, if it meets all other
requirements.
Example 2: Minority and women
individuals own 100 percent of the holding company, which owns 51 percent of a
subsidiary. The subsidiary may be certified, if all other requirements are met.
Example 3: Minority and women
individuals own 80 percent of the holding company, which in turn owns 70
percent of a subsidiary. In this case, the cumulative ownership of the
subsidiary by minority and women individuals is 56 percent (80 percent of the
70 percent). This is more than 51 percent, so the director may certify the
subsidiary, if all other requirements are met.
Example 4: Same as example 2 or 3, but
someone other than minorities or women owners of the parent or holding company
controls the subsidiary. Even though the subsidiary is owned by minority or
women individuals, through the holding or parent company, the director cannot
certify it because it fails to meet control requirements.
Example 5: Minority or women
individuals own 60 percent of the holding company, which in turn owns 51
percent of a subsidiary. In this case, the cumulative ownership of the
subsidiary by minority or women individuals is about 31 percent. This is less
than 51 percent, so the director cannot certify the subsidiary.
Example 6: The holding company, in
addition to the subsidiary seeking certification, owns several other companies.
The combined gross receipts of the holding companies and its subsidiaries are
greater than the size standard for the subsidiary seeking certification and/or
the gross receipts cap. Under the rules concerning affiliation, the subsidiary
fails to meet the size standard and cannot be certified.
(21) Recognition
of a business as a separate entity for tax or corporate purposes is not
necessarily sufficient to demonstrate that a firm is an independent business,
owned and controlled by minority and women individuals.
(m) An MBE/WBE's
certification shall expire three years from the date of certification effective
immediately. An application for renewal shall be submitted on forms provided by
the Director. The Director is authorized to require MBE/WBE's firms to submit yearly
updates of information including, but not limited to, current licenses and
federal, state and local tax returns and schedules (business and personal), and
all other forms that are required to be included with or attached to the return
at the time of filing.
(n) Once certified, an
MBE/WBE must notify the department in writing within 30 calendar days of any
change(s) in circumstances affecting the firm's ability to meet ownership,
control, or size requirements or any material change(s) in the information
provided in the certification application process. The statement must include
supporting documentation describing in detail the nature of such changes.
Change(s) in management responsibility among members of a limited liability
company are also covered by this requirement. If the MBE/WBE fails to make
timely notification of such change(s), it will be deemed to have failed to
cooperate and certification may be revoked.
(o) The director shall
safeguard information that reasonably may be regarded as confidential business
information from disclosure to unauthorized persons consistent with federal,
state and local law.
(p) If the United States
Department of Transportation changes the requirements for certifications, the
city council shall re-examine the certification requirements imposed by this
section.
(q) Appeals of denials of
certification.
(1) If the
city denies a request for MBE/WBE certification from a firm which is not
currently certified by the city, then the firm shall be ineligible to reapply
for MBE/WBE certification for one year from the later of the date of the denial
of certification or the final date of any decision on an appeal.
(2) Persons
who have applied for DBE certification in conjunction with MBE/WBE
certification and have been denied MBE/WBE certification may be certified if
the reason(s) for denial is solely for MBE/WBE certification criteria
equivalent to the DBE certification criteria and they successfully appeal their
DBE certification and otherwise fulfill the requirements for MBE/WBE
certification.
(3) Persons
who have applied for MBE/WBE certification and who have not applied for DBE
status may appeal the denial of certification to the same extent and subject to
the same provisions applicable to appeals of revocation of certification,
except as provided in (4) of this subsection.
(4) In
circumstances where a firm has failed to submit required documentation, failed
to demonstrate real and substantial presence, or exceeded business size
standards, there will be no administrative re-consideration of a denial of
MBE/WBE certification
(r) Appeals of revocations
of certification.
(1) Persons
who have who have had their MBE/WBE certification revoked by the department may
be reinstated if the reason(s) for revocation is solely for MBE/WBE
certification criteria equivalent to the DBE certification criteria and they
successfully appeal their DBE certification, and they otherwise fulfill the
requirements for MBE/WBE certification. If a person was certified as a DBE, the
person must follow the UCP appeal procedures and there is no city appeal.
(2) In
circumstances where a certified firm has failed to submit required
documentation, failed to demonstrate real and substantial presence, or exceeded
business size standards, there will be no administrative reconsideration of a
revocation of MBE/WBE certification.
(3) Upon
the revocation of certification as an MBE/WBE/DBE or mentor/protégé by the
department, the director shall notify the affected party in writing by
certified mail, setting forth the reason(s) for the revocation of
certification. Except as provided in (1) and (2) of this subsection, any firm
who has had certification as an MBE/WBE or mentor/protégé revoked by the
department may appeal the decision by filing a written notice of appeal as
designated by the director within 20 business days of receipt of the notice of
the revocation of certification. The procedures applicable to any appeal shall
be as follows:
a. The
written notice of appeal must state the reason(s) for the appeal and include
all supporting documentation to be considered for the appeal. The information
or documentation submitted is limited to the issue(s) raised in the written
notice of appeal. No new or additional documentation or information shall be
considered for the appeal without a showing by the firm that it was not
available or, through due diligence, could not have been made available. The
written notice must specify whether the firm wishes to appeal in writing and/or
appear personally for a hearing and if they intend to be accompanied by
counsel.
b. Within
ten business days of receipt of the notice of appeal from the aggrieved party,
the director shall forward the notice to a neutral hearing officer selected
through the city's standard procurement process.
c. Within
ten business days from the date of receipt of the notice from the director, the
hearing officer shall set a hearing date. The hearing officer shall cause
notice of the hearing to be served upon all parties by certified mail. Such
notice shall set forth with particularity the charges filed by the aggrieved
business and shall include the hearing date, time, and place.
d. At the
hearing, all parties shall be provided a fair and impartial hearing and shall
be allowed to make a presentation concerning the determination of noncompliance
with the requirements of this article or the revocation of certification as an
MBE/WBE or mentor/protégé. Legal counsel may accompany the firm during the
hearing, speak on behalf of the firm, respond to questions, and otherwise make
a presentation. Each owner will be limited to a period of 15 minutes to address
the hearing officer, unless extended by the hearing officer for good cause.
Reasonable accommodations will be made for those with disabilities and/or
limited language proficiency. For the appeal, the burden of proof rests on the
MBE/WBE or mentor/protégé to show that the revocation of certification was
improper.
e. The
hearing officer shall, within 15 business days of the hearing or within 15 days
of the deadline set by the hearing officer for the submission of any additional
documentation, if applicable, make a written decision on the appeal, which
decision shall affirm, alter, or reverse the revocation of certification by the
department. Written notice of the decision on the appeal shall be sent to all
parties by mail setting forth the reasons for the decision.
f. If
the hearing officer finds for the aggrieved party, as appropriate, the business
shall be reinstated as an MBE/WBE or mentor/protégé and added to the certification
database maintained by the department. The decision of the hearing officer
shall be binding on all parties, subject to the right of appeal as provided by
law.
g. The
firm that receives a decision from the hearing officer upholding the revocation
of certification is ineligible to reapply for MBE/WBE certification for two
years from the later of the date of the revocation of certification, or the
final date of any court decision.
(s) The city manager
is authorized to revoke MBE and WBE certification for cause. The certification
of a person who has been debarred by the city in a debarment proceeding shall
be automatically terminated or modified in a manner provided by the debarment
ordinance. If an MBE/WBE has its DBE or MBE/WBE certification revoked by
another governmental entity after a hearing, its MBE/WBE certification shall
automatically be terminated with the city unless the MBE/WBE's certification
was revoked for violating a certification requirement that is not a violation
of the city's MBE/WBE certification requirements. No individual, corporation,
partnership, limited liability company or any other business entity whatsoever
shall be certified as an MBE or WBE if the minority or female whose ownership
interest would serve as the basis for obtaining certification, or who would
control the entity seeking certification, presently owns or previously owned a
majority interest in or controlled an MBE or WBE whose certification has been
revoked for cause within the five year period immediately preceding the
submittal of the certification application. No individual, corporation,
partnership, limited liability company or any other business entity whatsoever
shall be certified as an MBE or WBE if the minority or female whose ownership
interest would serve as the basis for obtaining certification, or who would
control the entity seeking certification, presently owns or previously owned a
majority interest in or controlled an MBE or WBE whose certification has been
suspended for cause, provided however that this restriction shall last no
longer than the term of the suspension.
(t) MBE/WBE program
graduation.
(1) If an
MBE or WBE has been certified by the city in more than one North American Industry
Classification System (NAICS) code or has an affiliate which has been certified
by the city in a NAICS code other than that of the MBE or WBE, then the annual
receipt level used as the graduation criterion for such MBE or WBE shall apply
separately to each NAICS code for which the MBE or WBE and its affiliate have
been certified subject to the business size standards in this ordinance. Such
an MBE or WBE and any affiliate that has exceeded the graduation criteria in
one NAICS code shall be deemed to be graduated from the MBE/WBE contracting
program as to that major group, and may continue to be certified in another
NAICS code having a higher monetary graduation level but shall no longer be
considered eligible to be or remain certified in the NAICS code with the lower
size standard. An MBE or WBE that has exceeded the graduation criteria for the
largest NAICS code applicable to its activities shall be deemed to be graduated
from the MBE/WBE program for all purposes.
(2) The
department shall send a graduation determination letter which shall serve to
notify the MBE or WBE that it has graduated from the MBE/WBE program. The
mailing of the graduation determination letter shall trigger a three-year
termination period. During the termination period, an MBE or WBE may bid and
perform work to the same extent it was able to do so before graduation, and its
utilization may be applied towards satisfaction of contract goals, if any, to
the extent it is performing a commercially useful function corresponding to a
NAICS code in which it was certified prior to graduation.
(3) The
termination period shall expire three years from the date of mailing of the
graduation determination letter. Any work bid by the graduated MBE or WBE after
expiration of the termination period shall not be applied towards satisfaction
of contract goals, if any. Any work performed by the graduated MBE or WBE after
expiration of the termination period shall not be applied towards satisfaction
of contract goals, if any, unless the work was commenced or is scheduled to
commence pursuant to solicitation made prior to the expiration of the
termination period.
(4) During
the termination period, the MBE or WBE shall comply with the requirements of
this article to the same extent it was required to comply prior to graduation.
A failure to do so may result in the reduction or elimination of the
termination period.
(5) Application
to affiliates. The graduation criteria set forth above shall be deemed to apply
to the minorities or women upon whom eligibility for certification is based and
all affiliates to such minorities and women. No business enterprise shall be
certified based upon one or more minorities or women who owned or who was an
affiliate of an MBE or WBE which has become ineligible for renewed
certification because of the achievement of graduation criteria.
Section 3-463. Duties and authority of director.
(a) The director is hereby
authorized to establish rules and regulations to implement this Division.
(b) Notwithstanding any other
section to the contrary, the director is hereby authorized to establish rules
and regulations to implement the city's MBE/WBE program requirements into
contracts that utilize alternative construction delivery methods pursuant to
Chapter 3, Code of Ordinances, or other alternative procurement or contracting
methods if the contract would be subject to MBE/WBE goals under this article.
Except for cooperative agreements that involve construction, the fairness in
construction board shall set the MBE/WBE goals for construction contracts.
(c) The director shall, in
addition to any other duties specified herein:
(1) Administer
and enforce this article to ensure that MBE/WBEs have equal opportunity to
participate in city contracts and subcontracts and work with all city
department directors and agency heads to implement the city's MBE/WBE program;
and
(2) Coordinate
the establishment of MBE/WBE methodologies with all city departments and
agencies including establishment of goals, except goals for construction
contracts subject to section 3-453 hereof, as may be appropriate to remedy
underutilization of MBE/WBEs; and
(3) Update
the M/W/DBE Kansas City Mo. Online Directory available to all bidders,
proposers, the general public, city departments and agencies; and
(4) Assist
city departments and agencies in finding qualified MBEs and WBEs to participate
in contracts; and
(5) Identify
appropriate participation opportunities for qualified MBEs and WBEs in
contracts; and
(6) Publish
an annual report for the city's fiscal year which states for each city
department and agency:
a. The
number of contracts awarded and the total contract dollars awarded pursuant to
such contracts; and
b. The
number of prime contracts awarded to WBEs and MBEs as identified by race and/or
ethnicity and the total dollars awarded and paid pursuant to such contracts;
and
c. The
number of subcontracts awarded to WBEs and MBEs as identified by race and/or
ethnicity and the total contract dollars awarded and paid pursuant to such
contracts; and
d. A
summary of total waiver requests submitted that are granted or denied and the
reasons for the grant or denial; and
e. The
number of MBE/WBE firms certified by race and/or ethnicity; and
(7) Provide
a compliance report to the city manager within 30 days after the end of each
quarter which shall include:
a. The
total number of contracts awarded and the total contract dollar amount awarded
pursuant to such contracts; and
b. The
number of contracts awarded to qualified MBEs as identified by race and/or
ethnicity and WBEs and the total contract dollar amount awarded and paid
pursuant to such contracts; and
c. The
director of human relations evaluation of the city's progress toward meeting
MBE/WBE utilization plans and any actions he or she intends to take to address
any shortfall in meeting the goals established in such plans; and
d. Any
other information as may be required by the city manager; and
(8) Develop
and maintain relationships with organizations representing contractors,
including minorities and women organizations, and solicit their support for the
city's program; and
(9) Furnish
staff assistance to the fairness in construction board. This shall include but
not be limited to providing to the board within thirty days following the end
of each quarter interim reports containing the information described in
subsection (6) and such other reports and information as the board, from time
to time, may request; and
(10) Implement
any federal or state minority business enterprise program required by law or
federal or state contract; and
(11) Appoint
a designated neutral hearing examiner for certification revocation hearings.
Section 3-465. Penalties for noncompliance; no retaliation.
(a) Whenever a bidder,
proposer or contractor has submitted a bid that is not in material compliance
with the requirements of Division, the contracting department or agency shall
reject the bid or proposal unless the goals are waived pursuant to section 3-437.
(b) The director is
authorized to recommend suspension, revocation, sanction or debarment of any
contract or contractor, as appropriate, for providing false or misleading
information to the department, purposefully omitting or refusing to provide information
requested by the department, or otherwise violating any provision of this
Division.
(c) The director is
authorized to suspend or revoke the certification of an MBE/WBE or
mentor/protégé, as appropriate, for providing false or misleading information
to the department, purposefully omitting or refusing to provide information
requested by the department, or otherwise violating any provision of this
Division, without having to make a recommendation to any other person or
department.
(d) Sanctions shall be
imposed in conformity with any applicable federal, state or local laws. In
determining whether to suspend or revoke the certification an MBE/WBE or
mentor/protégé, the director shall consider the following factors:
(1) Whether
the failure to comply with applicable requirements involved intentional conduct
or, alternatively, may be reasonably concluded to have resulted from a
misunderstanding on the part of the MBE/WBE or mentor/protégé; and
(2) The
number of specific incidents of failure by the MBE/WBE or mentor/protégé to
comply; and
(3) Whether
the MBE/WBE or mentor/protégé has been previously suspended; and
(4) Whether
the MBE/WBE or mentor/protégé has failed or refused to provide the director
with any information requested by the director or required to be submitted to
the director pursuant to law or these procedures; and
(5) Whether
the MBE/WBE or mentor/protégé has materially misrepresented any applicable
facts in any filing or communication to the director; and
(6) Whether
any subsequent restructuring of the subject business or other action has been
undertaken to cure the deficiencies in meeting applicable requirements.
(e) Suspensions may be for
any length of time not to exceed five years. Suspensions in excess of one year
and revocations of certification shall be reserved for cases involving
intentional or fraudulent misrepresentation or concealment of material facts,
multiple acts in contravention of applicable requirements, cases where the
MBE/WBE or mentor/protégé has been previously suspended, or other similarly
egregious conduct.
(f) The making of any false
or misleading statements shall be grounds for application of any applicable
criminal and or civil penalties in addition to the grounds for sanction.
(g) No person shall
intimidate, threaten, coerce or discriminate against any individual or business
for the purpose of interfering with the implementation or enforcement of any
provision of this Article because such individual or business filed a complaint
or cooperated in the investigation of a complaint.
Section 3-467. Mediation of disputes.
(a) Any claim or dispute
between a contractor, subcontractor or supplier that remains unresolved after
30 calendar days shall be subject to mandatory mediation conducted in
accordance with the rules of the Uniform Mediation Act. The mediation shall be
conducted by an impartial mediator appointed by the department, who shall
render his or her services with full regard for each party's interests. If the
subject matters of the dispute or the parties to the dispute are such that the
assigned mediator would have a conflict of interest or personal interest in the
outcome of the mediation, he or she shall immediately be recused and another
mediator shall be appointed.
(b) The procedures for the
mediation shall be established by the appointed mediator in conjunction with
the parties, who shall attempt to resolve their dispute in good faith.
(c) Except to the extent
disclosure is otherwise required by law, the mediation and the terms of any
settlement reached by the parties shall remain confidential.
(d) The mediation provided
for by this section shall be a condition precedent to the initiation or pursuit
of any other lawful means of resolving the dispute, including arbitration and
other legal proceedings.
(e) The contractors shall
share equally the expense of the mediator's fee. Agreements reached in
mediation shall be enforceable as settlement agreements in any court having
jurisdiction thereof.
(f) Every contractor entering
into a contract as defined by section 3-421(a)(13) shall incorporate the
provisions of this section into each related agreement with a subcontractor or
supplier, but the failure to do so shall not alleviate the obligation of the
parties to utilize the mediation provided for herein as a condition precedent
to the initiation or pursuit of any other lawful means of resolving the
dispute, including arbitration and other legal proceedings. The requirements of
this section shall be deemed incorporated into each related agreement by
operation of law and shall supplant any term or provision, written or oral, to
the contrary.
Section 3-469. Severability.
The provisions of this
Division are severable. If any provision or its application to any person or
circumstance is held invalid by a court of competent jurisdiction, the
remaining provisions, including the application of such provisions to other
persons or circumstances, shall continue in full force and effect.
Sections 3-470—3-500. Reserved
Division 3. Construction Workforce
Section 3-501. Definitions applicable to
the construction employment program.
(a) The following definitions
shall apply to this Division 3:
(1) Apprentice means person of legal working
age who has entered into a program for training and employment to learn a
skilled construction trade.
(2) 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.
(3) City means the City of Kansas
City, Missouri.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) Construction
hours affidavit means a statement by a construction contractor, verified under oath,
setting forth the construction contractor's intent to meet or exceed the
construction employment goals while performing a city construction contract.
(9) Construction
labor hour
means a 60-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.
(10) Construction
project means
any project performed by a construction contractor in the Kansas City
metropolitan statistical area.
(11) Construction
workforce board means a board, created as provided herein.
(12) Director means the director of the
human relations department of the city or his/her designee, or the person
within the city manager's office that is assigned to perform the tasks
delegated to the director of the human relations department by this article.
(13) 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.
(14) Good
faith waiver
means a waiver that is granted by the director, or upon appeal of the
director's decision, by the construction workforce board based upon a showing
by a construction contractor that despite undertaking in good faith the actions
outlined in sections 3-501—3-525, the construction contractor was unable to achieve the minimum
employment goals.
(15) 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.
(16) 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.
(17) 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.
(18) Metropolitan
statistical area (MSA) means the Kansas City metropolitan statistical area as defined by
the United States Department of Labor.
(19) 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 Division.
(20) 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.
(21) Resident means an individual residing
or domiciled within the city.
(22) Woman means a person who is a
citizen or lawful permanent resident of the United States and who is a female.
(23) 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. 3-503. 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 city's objective in accordance with
this Division; 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
percent by 2014 and female participation in apprenticeship programs to five
percent by 2014.
(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 Division 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. 3-505. Application of ordinance.
(a) The provisions of this
Division shall apply to all city construction contracts.
(b) Entities with the
authority to issue tax increment financing or grant tax abatement shall adopt a
workforce policy that is consistent with this Division.
Sec. 3-507. 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 Division 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 city metropolitan statistical area
(MSA); and
(2) The
general workforce in the city and in the city metropolitan statistical area
(MSA); and
(3) The
availability of minority and women in the workforce in the city and in the city
metropolitan statistical area (MSA); and
(4) The
utilization of minorities and women in the workforce in the city and in the
city metropolitan statistical area (MSA); and
(5) The
projected growth of the 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 percent and a minimum goal of ten percent.
(2) For
women an incentive goal of four percent and a minimum goal of two percent.
(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
city's 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 director's and construction workforce board's 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 Division 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 contractor's 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
director's 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 journeypersons 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:
a. 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 percent
by 2014 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 five percent by 2014 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 for journeypersons 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:
(1) The
minority and women employment goals; and
(2) The
standards set forth in section 3-507(g).
(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 contractor's
request for waiver, the construction contractor may appeal the director's
decision to the construction workforce board.
Sec. 3-509. City sponsored recruitment of construction workforce.
(a) 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 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 the city to apply, be interviewed and be hired on city construction
contracts.
(4) Making
a good faith effort to inform residents of the city 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:
a. The
name of the project;
b. The
nature of the work to be performed;
c. The
crafts anticipated to be required for the work; and,
d. Locations
within the city 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. 3-511. 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. 3-513. 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
contractor's 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:
(1) 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 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 city MSA;
and
(2) 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 Division, 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 Division. 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) Driver's
license or identification card issued by a government or governmental agency
with a photograph of the holder; or
(2) Voter's
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 fifteenth 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. 3-515. 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 section 38-103. 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. 3-517. Complaint procedures.
The city shall provide
complaint procedures set forth in section 38-23 to all persons working under
the construction employment program.
Sec. 3-519. 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. 3-521. Construction workforce board.
(a) There is hereby
established the 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 board's responsibilities specifically include:
(1) Meeting
quarterly in a forum open to the public, to review the monthly workforce
reports including the director's AAMR, monitor compliance with the provisions
of this Division, and make recommendations to the director regarding
enforcement of this Division; 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 Division.
(b) The construction
workforce board shall be composed of 11 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 any time.
(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) I n 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.
(k) The terms of all board members
shall be for a period of four years. Board members serving as of the effective
date of this ordinance shall retain their seats for the remainder of their
unexpired terms, after which they shall vacate their seats if not reappointed
by the mayor.
Sec. 3-523. 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
director's recommendation of assessment of liquidated damages pursuant to this
Division; and
(3) The
director's 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 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 calendar days prior to the date
of the hearing. A copy of the director's determination shall be attached to
each such notice. A hearing shall be set no later than 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. 3-525. Severability.
If any section, subsection,
clause, or provision of this Division is deemed to be invalid or unenforceable
in whole or in part, this Division 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.
Secs. 3-526—3-600. Reserved.
Division 4. Small Local Business Enterprises
(SLBE)
Sec. 3-601. Definitions.
(a) The following definitions
apply to this Division 4:
(1) Agency.
Any public or private entity that receives 66 percent of its funding from the
city or any entity with the authority to recommend city tax increment financing
or city tax abatements.
(2) Agency
head. The individual authorized to act on behalf of an agency.
(3) Business.
An individual, corporation, partnership, limited liability company, or other
recognized business association that may lawfully be established for the
purpose of conducting a for-profit business within the state.
(4) City.
The City of Kansas City, Missouri.
(5) Construction
contract. A contract for the construction, reconstruction, improvement,
enlargement or alteration of any fixed work or construction site preparation,
the majority of which is paid for out of city or agency funds.
(6) Construction
supply contract. A contract for the purchase of construction materials,
supplies, articles or equipment intended to be used or consumed on a
construction contract, the majority of which is paid for out of city or agency
funds.
(7) Department.
The human relations department (HRD), or the division within the city manager's
office that is assigned to perform the tasks delegated to the human relations
department.
(8) Department
director. The individual appointed by the city manager to be responsible
for a city department or the manager of procurement services when acting on
behalf of a department director or the city.
(9) Director.
The director of the human relations department or his authorized
representative, or the person designated by the city manager to perform the
tasks delegated to the human relations department.
(10) Eligible
contract. Any construction contract or construction supply contract
estimated by the city or agency prior to solicitation as having a value less
than $300,000.00, and all other professional services or supplies city or
agency contracts having a value less than $117,000.00, the majority of either
of which is paid for out of city funds or in which an agency is a party.
(11) Invitation
for bid. A request or invitation for submission of an offer to enter into a
contract pursuant to a competitive bidding process.
(12) Kansas
City Metropolitan Area. The Missouri counties of Cass, Clay, Jackson and
Platte and the Kansas counties of Johnson, Leavenworth and Wyandotte.
(13) Person.
An individual, corporation, partnership, limited liability company, or other
recognized business association which may lawfully be established for the
purpose of conducting a for-profit business within the state.
(14) Principal
place of business. The location at which the business records of the SLBE
applicant are maintained and the location at which the individual who manages
the concern's day-to-day operations spends the majority of his/her working
hours.
(15) Request
for proposals. An invitation for submission of an offer to enter into a
contract pursuant to a negotiated process and not a competitive bid, including
requests for qualifications.
(16) Professional
services or supplies. The term includes contracts for purely labor-related
services up to and including highly technical or specialized services and
design professional services, as well as contracts for the purchase of
materials, supplies, articles or equipment intended to be used or consumed by
the city or agency procuring the same, provided however that the term excludes
construction contracts and construction supply contracts.
(17) Small
local business enterprise (SLBE). A for-profit business that:
a. Is at
least 51 percent owned, managed and independently controlled by the
applicant(s); and
b. Exists
independently and is not an affiliate or subsidiary of any other business.
c. Is
able to demonstrate that they have the skill and expertise to perform in the
particular area(s) of work for which they are seeking certification; and
d. Has a
real and substantial presence in the Kansas City Metropolitan Area. A business
enterprise shall be deemed to have a real and substantial presence in the
Kansas City Metropolitan Area if:
1. The
business' principal place of business is in the Kansas City Metropolitan Area.
2. The
business maintains the majority of its full-time employees in the Kansas City
Metropolitan Area.
3. The
business has transacted business more than once in the Kansas City Metropolitan
Area within the last two (2) years; and
e. Has
annual gross receipts that, when added with those of its subsidiary or
subsidiaries and averaged over three consecutive years, do not exceed five
percent of the applicable business size standard for the SBA General Contractor
Classification which is equivalent of the NAIC code 236220 as established in 13
CFR 121.201, as amended; and
f. Is
certified by the human relations department as a small local business
enterprise.
(18) SLBE
directory. A source list compiled by the human relations department
containing names and addresses of SLBEs eligible to participate in the SLBE
program.
(19) SLBE
program. The small local business enterprise program as enacted in this
Division.
Sec. 3-603. Policy; applicability.
(a) The SLBE program is
intended to provide opportunities by limiting solicitations to SLBEs or
providing SLBEs a bid incentive, as provided in section 3-607. The SLBE program is not a
goal-based program, nor shall it be extended to every contract. Application of
the SLBE program shall be limited to those eligible contracts in which the
director has determined it to be proper as provided herein.
(b) The SLBE program, when
determined to be applicable by the director, shall extend to eligible contracts
solicited by the city or any agency. Every agency shall adopt a small local
business enterprise program that is substantially consistent in every material
respect with this Division, as determined and approved by the director of human
relations. No ordinance shall be passed to approve any development plan,
redevelopment plan, urban renewal plan, or particular project arising under any
such plan and for which economic incentives have been approved or recommended
for approval by an agency, nor shall the city execute a contract with an agency
for the purpose of providing funds for their development and redevelopment
services, unless the agency has first adopted and implemented a small local
business enterprise program in the manner provided for herein.
(c) The director shall review
the SLBE program annually and make recommendations to the city council as to
whether the SLBE program should be maintained or modified, but the failure of
the director to do so shall not invalidate the SLBE program.
(d) The city council shall
have the authority to waive the applicability of the SLBE program in its
entirety, or any portion thereof, if it determines that doing so is in the
city's best interests.
Sec. 3-605. Applicability of SLBE program to eligible contract
solicitations.
(a) Prior to issuing any
invitation for bid or request for proposal for any eligible contract, the
department director or agency head shall confer with the director for purposes
of determining whether the eligible contract is one whose solicitation shall be
limited to SLBEs or, on non-construction contracts, whether SLBEs shall be
allowed a bid incentive not to exceed five percent, as provided in
section 3-607.
(b) The director shall give
consideration to the input of the department director or agency head and shall
make the final determination as to which SLBE incentive, if any, shall be applicable
to the particular solicitation. Any invitation for bid or request for proposal
shall be solicited in compliance with the city's Code of Ordinances or the
procurement policies and procedures of the relevant agency and shall clearly
and conspicuously be delineated with the applicable provision, which shall read
substantially as follows:
[Applicable to Construction
Contracts, Construction Supply Contracts and Professional Services or Supplies
Contracts]
This Invitation for
Bid/Request for Proposal is limited to those entities that are certified by the
City of Kansas City, Missouri as a Small Local Business Enterprise (SLBE) or
that have applied for certification as a SLBE at least 45 days prior to the
date of this solicitation and who will have received that certification by the
date on which the bid/proposal/qualification is due. Any
bid/proposal/qualification received from any entity not having submitted a
timely application or not certified as a SLBE on the due date shall be rejected
and will not be considered.
-OR-
[Applicable only to
Professional Services or Supplies Contracts]
This Invitation for
Bid/Request for Proposal is subject to the City of Kansas City, Missouri's
Small Local Business Enterprise Program. Any entity who has applied for
certification as a Small Local Business Enterprise (SLBE) at least 45 days
prior to the date of this solicitation and has received that certification by
the date on which the bid/proposal/qualification is due shall receive a bid incentive
of five percent.
(c) No person shall be
entitled to participate in any solicitation as an SLBE or receive the benefit
of any incentive reserved for a SLBE unless the person has submitted an
application for certification as a SLBE to the department at least 45 days
prior to the invitation for bid or request for proposals and received SLBE
certification by the date on which the bid or proposal is due.
(d) In the event any person
that is not certified as a SLBE submits a bid or proposal in response to a
solicitation that has been limited to SLBEs and did not apply for and receive
its certification within the time periods provided for herein, the bid or
proposal shall be summarily rejected as non-responsive.
Sec. 3-607. SLBE incentives.
(a) The director is
authorized to encourage the utilization of SLBEs on any eligible contract
except as otherwise limited in
section 3-609
through the utilization of the following SLBE incentives:
(1) Limiting
solicitation to SLBEs. The director is authorized to limit an invitation for
bid or request for proposal to SLBEs, and shall consider the following factors
in making a determination:
a. The
estimated or potential dollar amount of the contract; and
b. The
scopes of work to be performed; and
c. The
availability of SLBEs certified in the primary scope of work to be performed;
and
d. The
city's utilization of SLBEs to date.
(2) Bid
incentives. The director is authorized to allow a bid incentive to SLBEs not to
exceed five percent, and shall consider the following factors in making a
determination as to whether to allow the incentive and establishing the amount
thereof:
a. The estimated
or potential dollar amount of the contract; and
b. The
primary scope of work to be performed; and
c. The
city's utilization of SLBEs to date; and
d. The
amount of the bid incentive awarded on past contracts of a similar nature; and
e. The
amount of the bid incentive reasonably anticipated as being needed for purposes
of enabling SLBEs to effectively compete for the contract; and
f. The
ability of the city department or agency to fund any increased cost that may
reasonably be expected to arise as a result of the application of a bid
incentive.
Any bid eligible for the bid
incentive shall be adjusted for evaluation purposes by reducing the bid by the
percentage of the incentive. This adjustment shall be used solely for the
purpose of establishing the apparent low bidder. The actual value of the
contract, if awarded to the SLBE, shall be the amount of the actual bid
submitted by the SLBE.
(b) Any contract awarded to
an SLBE pursuant to the SLBE program shall contain provisions providing for the
following, notwithstanding the application of any other SLBE incentive as
provided in subsection (a) of this section:
(1) Pre-payment
of up to ten percent of the contract amount to be tendered upon city's issuance
of notice to proceed; and
(2) The
elimination of any retainage requirement; and
(3) Payment
every two weeks provided the SLBE has requested payment in the manner required
by its contract with the city and is otherwise entitled to receive payment
thereunder.
Sec. 3-609. Limitations on use of SLBE incentives.
(a) Notwithstanding anything
contained within this Division:
(1) No bid
incentive shall be awarded to any SLBE submitting a bid in response to any
invitation for bids that has been expressly limited to SLBEs.
(2) No solicitation
shall be limited to SLBEs unless the same has been clearly and conspicuously
noted in the invitation for bid or request for proposal and no bid incentive
shall be allowed any SLBE unless the same has been clearly and conspicuously
noted in the invitation for bid.
(3) No
solicitation shall be limited to SLBEs unless there is a minimum of three
eligible SLBEs capable of performing the work and certified in the primary
scope of work to be performed.
(4) No bid
incentive shall be allowed on any construction contract or construction supply
contract.
(5) No bid
incentives shall be allowed on any other eligible contract unless there are
fewer than three eligible SLBEs capable of performing the work and certified in
the primary scope of work to be performed.
(6) No
contract shall be awarded to an SLBE who, taking into consideration the
applicability of any bid incentive, is not the lowest and best bidder or is not
the best proposer.
(7) No
contract shall be awarded to an SLBE responding to any invitation for bid or
request for proposal that has been limited to SLBEs if it is in the city's or
agency's best interest to reject all bids or proposals. In the event the city
or agency elects to re-solicit the goods or services, the applicability of any
provision of the SLBE program to the re-solicitation shall be determined anew.
(8) No
solicitation or contract shall be subject to any provision of the SLBE program
if doing so would cause the city or agency to violate the requirements of any
grant or otherwise violate any provision of state or federal law.
Sec. 3-611. Small local business enterprise development program.
(a) The director shall
establish a small local business enterprise development program designed to
assist SLBEs in identifying those organizations that have identified themselves
as being able and willing to provide financial and other assistance to SLBEs
including, but not limited to, bonding; financing; technical and managerial
training and assistance; and referral, networking and outreach activities. The
director may provide small business development services through the department
but shall not provide financial assistance to any SLBE or take any action that
would purport to obligate the city to guarantee or repay any debt incurred by
any SLBE.
(b) The small local business
enterprise development program shall include, but shall not be limited to,
facilitation of the following services:
(1) Surety
bond prequalification program through a third party source; and
(2) Working
capital loans through a third party source; and
(3) On-site
construction management services; and
(4) Technical
and managerial training and assistance; and
(5) Referral,
networking and outreach activities.
Sec. 3-613. Certification and
appeals.
(a) The director shall be
responsible for all certification decisions with regard to SLBEs and shall
ensure that only persons meeting the requirements for certification as an SLBE
are certified as such. The director shall apply the standards within this
section in making a certification decision. To the extent not otherwise
inconsistent with anything contained herein, the director shall have the
authority to establish rules and regulations for purposes of ensuring that only
persons meeting the definition of an SLBE as provided in section 3-601(a)(17)
obtain certification.
(b) All persons applying for
certification or who possess certification shall be subject to an audit by the
director at any time. An applicant's or certified business' refusal to
facilitate an audit shall be grounds for denial of its certification application
or revocation of its certification.
(c) All applicants shall be
required to demonstrate that they have the skill and expertise to perform in
the particular area(s) of work for which they are seeking certification.
(d) All applicants shall be
required to demonstrate that they have annual gross receipts that, when added
with those of its subsidiary or subsidiaries and averaged over three
consecutive years, do not exceed five percent of the applicable business size
standard for the SBA general contractor classification which is equivalent of
the NAIC code 236220 as established in 13 CFR 121.201, as amended.
(e) All applicants shall be
required to demonstrate that the business is an independent business and is not
a subsidiary or affiliate of any other person.
(1) Independence
shall be determined by considering the ability of the applicant to perform
satisfactorily in its area(s) of specialty without substantial reliance upon
finances, resources, bonding, expertise, staff, facilities, or equipment of
non-SLBEs. Recognition of the applicant as a separate and distinct entity by
governmental taxing authorities is not dispositive of the applicant's assertion
of independence.
(2) Independence
will be established by the degree to which financial, equipment leasing,
business and other relationships with larger established firms vary from normal
industry practices, and other appropriate factors.
(3) Independence
will be evaluated as of the date of application submission.
(4) Recognition
of a business as a separate entity for tax or corporate purposes is not
necessarily sufficient to demonstrate that a firm is an independent business
and is not a subsidiary or affiliate of another person.
(f) All applicants and
certified businesses shall submit such information or documentation as may be
required by the director in connection with its certification as an SLBE,
including, but not limited to current licenses and federal, state and local tax
returns and schedules (business and personal), and all other forms that are
required to be included with or attached to the return at the time of filing.
Failure to submit such information or documentation shall result in the denial
of its certification application or revocation of its certification.
(g) A certification
application may be withdrawn by an applicant without prejudice at any time
prior to an audit. Documentation submitted to support an application will not
be returned to the applicant. An applicant may reapply for certification at any
time, except that any applicant who withdraws an application for reasons
relating to their ownership or control of the business shall be required to
wait three months before reapplying.
(h) The applicant has the
burden of demonstrating to the director, by a preponderance of the evidence,
that it meets all the requirements for certification. The director shall make
determinations concerning whether the applicant has met its burden by
considering all the facts in the record, viewed as a whole.
(i) Certification of an applicant
shall be valid for three years from the effective date of the certification and
only as to the area(s) of specialty specified therein, contingent upon the
annual establishment by the certified firm of its continued eligibility. The
director is authorized to require SLBEs to submit yearly updates of information
including, but not limited to, current licenses and federal, state and local
tax returns and schedules (business and personal), and all other forms that are
required to be included with or attached to the return at the time of filing.
(j) Once certified, an SLBE
must notify the department in writing within 30 calendar days of any change(s)
in circumstances affecting the SLBEs continued ability to meet the SLBE
certification requirements or of any material change(s) in the information provided
in the certification application process. The statement must include supporting
documentation describing in detail the nature of any changes. If the SLBE fails
to make timely notification of such change(s), it will be deemed to have failed
to cooperate and it may have it certification suspended or revoked on that
ground, notwithstanding the fact that the changes, if disclosed, may not have
impaired the SLBEs ability to retain its certification intact.
(k) The director shall
safeguard information that reasonably may be regarded as confidential business
information from disclosure to unauthorized persons consistent with federal,
state and local law.
(l) The director is
authorized to deny certification as an SLBE to any person not meeting the requirements
for certification as such, and to suspend or revoke certifications an SLBE as
provided in section3-617.
(m) The director shall notify
an SLBE or applicant for certification as an SLBE of any decision to deny,
suspend or revoke that certification. Notification shall be in writing and
shall indicate the basis for the director's decision. That decision shall be
final, subject to the right of appeal to the fairness in city contracts board
or fairness in construction board, as appropriate, and as set forth herein. The
procedures shall be as follows:
(1) Within
ten business days of the date the director sends written notice of his
decision, any aggrieved person wishing to appeal the director's decision shall
file with the director a written notice of appeal stating the reasons for the
appeal and including all supporting documentation they wish to be considered.
The information or documentation submitted shall be limited to the issue(s)
raised in the written notice of appeal. No new or additional information shall
be considered for the appeal without a showing by the appellant that it was not
available or, through due diligence, could not have been made available. The
written notice must specify whether the firm wishes to appeal in writing and/or
appear personally for a hearing and if they intend to be accompanied by
counsel. The failure to file a written notice of appeal complying with the
requirements herein shall constitute a full and complete waiver of any right to
appeal or otherwise protest any decision.
(2) Within
five business days of receipt of an effective written notice of appeal, the
director shall forward the notice to the chairperson or the fairness in city
contracts board or chairperson of the fairness in construction board. The
fairness in construction board's jurisdiction shall include appeals from
certification decisions that relate to certification in area(s) of work
specific to the construction trades or the supply of construction related
materials. The fairness in city contracts board shall have jurisdiction over
all other appeals. In the event that there is any question as to which body has
jurisdiction over the appeal, the matter shall be left to the discretion of the
director whose decision in that regard shall be conclusive.
(3) Within
five business days from the date of receipt of notice from the director, the
respective chairperson shall set a hearing date, provided however that the
hearing date will be no more than 60 days from the date notice is received from
director. The chairperson shall cause notice of the hearing to be served upon
all parties by certified mail. Such notice shall set forth with particularity
the issues on appeal and shall include the hearing date, time and place.
(4) At the
hearing, all parties shall be provided a fair and impartial hearing. Legal
counsel may accompany the SLBE or applicant for certification as an SLBE during
the hearing, speak on their behalf, respond to questions, and otherwise make a
presentation. Each side will be limited to a period of 15 minutes to address
the board, unless extended by the hearing officer for good cause. Reasonable
accommodations will be made for those with disabilities and/or limited language
proficiency. For the appeal, the burden of proof rests on SLBE or applicant for
certification as an SLBE to establish that the director's decision was
improper.
(5) The
board shall, within 15 business days of the hearing or within 15 days of the
deadline set by the hearing officer for the submission of any additional
documentation, if applicable, make a written decision on the appeal, which
decision shall affirm, alter, or reverse the director's decision. Written
notice of the decision on the appeal shall be sent to all parties by mail setting
forth the reasons for the decision. The decision of the board shall be binding
on all parties, subject to the right of appeal as provided by law.
(6) Any
person receiving a decision upholding the director's decision to deny or revoke
certification as an SLBE shall be ineligible to reapply for SLBE certification
for one calendar year from the later of the date the board's decision was
issued, or the final date of any court decision.
(n) An SLBE shall be
graduated from the SLBE program as follows:
(1) If the
annual gross receipts of the SLBE when added with those of its subsidiary or
subsidiaries and averaged over three consecutive years exceed five percent of
the applicable business size standard for the SBA general contractor
classification which is equivalent of the NAIC code 236220 as established in 13
CFR 121.201, as amended, the SLBE shall graduate from the SLBE program.
(2) An
SLBE shall graduate from the SLBE program without regard to annual gross
receipts ten years after the date it is first certified as an SLBE.
(3) The
director shall notify an SLBE in writing that it has graduated from the SLBE
program.
(o) Notwithstanding any
anything within this section to the contrary, no SLBE shall be entitled to
appeal any decision to remove or otherwise deny a renewal of certification on
the grounds that the SLBE has graduated from the SLBE program due to the
expiration of the ten-year certification period as provided in subsection
(n)(2).
Sec. 3-615. Duties and authority of director.
(a) The director is hereby
authorized to establish rules and regulations to implement the SLBE program.
This authorization shall include, but not be limited to, authority to establish
a uniform application fee to be paid by any person requesting certification as
an SLBE, provided however that the application fee shall not exceed the costs
reasonably expected to be incurred by the department in certifying an SLBE.
(b) The director shall, in
addition to any other duties specified herein:
(1) Administer
and enforce the SLBE program;
(2) Update
the SLBE directory available to the general public, city departments and
agencies;
(3) Assist
city departments and agencies in finding qualified SLBEs to participate in the
SLBE program;
(4) Identify
appropriate contracting opportunities for qualified SLBEs;
(5) Publish
an annual department and agency report for the city's fiscal year detailing the
results of the SLBE program; and
(6) Provide
a semi-annual compliance report to the city manager, the fairness in
construction board and the fairness in city contracting board that discloses
the total contract dollars awarded to SLBEs and total dollar value of bid
incentives awarded to SLBEs.
(7) Develop
and maintain relationships with organizations representing contractors,
including small business organizations, and solicit their support for the SLBE
program.
(c) Every city department and
agency shall maintain and provide the director such information as may
reasonably be requested for purposes of monitoring the total contract dollars
awarded to SLBEs and total dollar value of bid incentives awarded to SLBEs.
(d) Each department director
shall cooperate in providing the director the information necessary to publish
an annual report.
Sec. 3-617. Penalties for noncompliance; no retaliation.
(a) The director is
authorized to recommend suspension, revocation, sanction or debarment of any
contract or contractor, as appropriate, for providing false or misleading
information regarding the SLBE program to the department, purposefully omitting
or refusing to provide information requested by the department, or otherwise
violating any provision of the SLBE program.
(b) The director is authorized
to suspend or revoke the certification of an SLBE, as appropriate, for
providing false or misleading information to the department, purposefully
omitting or refusing to provide information requested by the department, or
otherwise violating any provision of the SLBE program, without having to make a
recommendation to any other person or department.
(c) Sanctions shall be
imposed in conformity with any applicable federal, state or local laws. In
determining whether to suspend or revoke the certification of an SLBE, the
director shall consider the following factors:
(1) Whether
the failure to comply with applicable requirements involved intentional
misconduct or, alternatively, may be reasonably concluded to have resulted from
a misunderstanding on the part of the SLBE;
(2) The
number of specific incidents of failure by the SLBE;
(3) Whether
the SLBE has been previously suspended;
(4) Whether
the SLBE has failed or refused to provide the director with any information
requested by the director or required to be submitted to the director pursuant
to law or these procedures;
(5) Whether
the SLBE has materially misrepresented any applicable facts in any filing or
communication to the director; and
(6) Whether
any subsequent restructuring of the subject business or other action has been
undertaken to cure the deficiencies in meeting applicable requirements.
(d) Suspensions may be for any
length of time not to exceed five years. Suspensions in excess of one year and
revocations of certification shall be reserved for cases involving intentional
or fraudulent misrepresentation or concealment of material facts, multiple acts
in contravention of applicable requirements, cases where the SLBE has been
previously suspended, or other similarly egregious conduct.
(e) The making of any false
or misleading statements shall be grounds for application of any applicable
criminal and or civil penalties in addition to the grounds for sanction.
(f) No person shall
intimidate, threaten, coerce or discriminate against any individual or business
for the purpose of interfering with the implementation or enforcement of any
provision of the SLBE program because such individual or business filed a
complaint or cooperated in the investigation of a complaint.
Sec. 3-619. Coordination with fairness boards.
In addition to semi-yearly
reports, the director shall consult from time-to-time with the fairness in city
contracts board and the fairness in construction board for the purpose of
reporting on the implementation of the SLBE Program and identifying methods by
which the city may increase the participation of SLBEs in eligible contracts.
The boards may make recommendations to the director with regard to the small
local business enterprise development program.
Sec. 3-621. Severability clauses.
The provisions of this
Division are severable. If any provision or its application to any person or
circumstance is held invalid by a court of competent jurisdiction, the
remaining provisions, including the application of such provisions to other
persons or circumstances, shall continue in full force and effect.
Secs. 3-622—3-700. Reserved.
Section 7. That
this ordinance shall become effective on May 1, 2013.
Section 8. That
all contracts entered into by the city prior to the effective date of this
ordinance shall continue in full force and effect and shall be carried to
completion in accordance with the provisions of those ordinances in effect as
of the date upon which such contracts became effective.
Section 9.
That any contract solicitation or award having commenced prior to the effective
date of this ordinance or otherwise pending or under consideration by the city
council prior to the effective date of this ordinance shall remain unaffected
and may be acted upon and disposed of as if they had originated and been
introduced under the provisions of this ordinance.
_______________________________________________________
Approved as to form and legality:
______________________________
Brian T. Rabineau
Assistant City Attorney