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HomeMy WebLinkAboutOrdinance 13471ORDINANCE NO. 13 4 ~ ~ AN ORDINANCE AMENDING CITY OF FORT WORTH ORDINANCE NO 11923 BY AMENDING SECTIONS 2, 3, AND AMENDING ATTACHMENT I, PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS, THAT. SECTION 1 Section 2 of City of Fort Worth Ordinance No 11923 is hereby amended to read as follows The ultimate goal of this ordinance is to remedy the effects of past underutilization in the Marketplace by increasing the use of minority and women business enterprises above the present low level to one more comparable to their availability in the Fort Worth Marketplace The City Manager shall recommend an annual goal for MBE/WBE participation in City procurement activities, based upon the availability within the Marketplace The goals, based upon availability, shall be thirteen percent (1.3%) for minority businesses and twelve percent (12%) for women businesses and shall be reviewed as provided for elsewhere herein These goals are not quotas SECTION 2. Section 3 of City of Fort Worth Ordinance No 11923 is hereby amended to read as follows The provisions of this ordinance shall apply to all contracts awarded by the City, except as may be hereafter specifically exempted Where contracts involve the expenditure of federal or state funds, the state or federal policy related to MBE/VVBE or DBE participation may take precedence over this ordinance The provisions of this ordinance shall be liberally construed for the accomplishment of its policies and purposes Specific goals shall be established in the areas of construction, professional services and purchases of other goods and services A goal may be set on individual projects based on the type of work or services to be performed, or goods to be acquired and the availability of minority and women businesses in the City's Marketplace SECTION 3 Attachment I to City of Fort Worth Ordinance No 11923 is hereby amended to read as follows ATTACHMENT I DEFINITIONS 1 "Applicable Contract" means any contract of $25,000 or more for construction projects and professional services and $15,000 or more for purchase agreements, as well as any other contracts that the City Council or City Manager deem appropriate 2 "Certified" means those firms, within the Marketplace, that have been determined to be a bonafide minority or women business enterprise by either the North Central Texas Regional Certification Agency (NCTRCA), or the Texas Department of Transportation (TxDOT), highway division In the event of denial of certification by either of these entities, the City reserves the right to grant its own certification for use in City contracts 3 "City" means the City of Fort Worth, Texas 4 "City business day" means Monday through Friday, inclusive, excluding legal holidays Legal holidays shall be observed as prescribed by the City Council for observance as follows New Year's Day M L. King, Jr Birthday Memorial Day Independence Day Labor Day Thanksgiving Day Thanksgiving Friday Christmas Day January 1 Third Monday in January Last Monday in May July 4 First Monday in September Fourth Thursday in November Fourth Friday in November December 25 When one of the above named holidays falls on a Saturday, the holiday shall be observed on the preceding Friday When one of the above named holidays falls on a Sunday, the holiday shall be observed on the following Monday 5 "Construction" means the erection, rehabilitation, alteration, conversion, extension, demolition, improvement, remodeling or repair to any real property, including streets, storm drains and facilities providing utility service owned by the City 6 "Contract" means a binding agreement whereby the City either grants a privilege or is committed to expend or does expend its funds or other resources for or in connection with a) construction of any public improvement, and b) purchase of any services (including professional services) The term includes "purchase order" 7 "Contract Officer" means the person employed by the City to oversee the performance of the contract. 8 "Contracting Department" means the department responsible for payment of contract obligations 9 "Contractor" means the Offeror with whom the City has entered into an agreement. Includes the terms "Vendor" and "Prime Contractor" 10 "Coordinator" means the administrator of the MBE/WBE Office 11 "Goal" means the percentage of minority business enterprise and/or women business enterprise participation on an applicable project as determined by the City, based on the availability of such businesses in the marketplace and the subcontracting/supplier opportunities of the project. 12 "Good Faith Effort" means having absence of malice or any intentions to deceive, good intentions and sincerity to meet the goal of this ordinance Documentation submitted by the offeror to explain why its good and honest efforts did not meet or exceed the stated Goal Compliance with each of the following steps shall satisfy the Good Faith Effort requirement absent proof of fraud, misrepresentation, or intentional discrimination by the offeror 12 1 List each and every subcontracting and/or supplier opportunity for the completion of this project. 12.2 Obtain a current (not more than three (3) months old from the bid open date) list of MBE/WBE subcontractors and/or suppliers from the City's MBE/WBE Office 12 3 Solicit bids from MBE/1NBEs, within the subcontracting and/or supplier areas previously listed, at least ten calendar days prior to bid opening by mail, exclusive of the day the bids are opened 12 4 Solicit bids from MBE/WBEs, within the subcontracting and/or supplier areas previously listed, at least ten calendar days prior to bid opening by telephone, exclusive of the day the bids are opened Note: A facsimile may be used to comply with either 12.3 or 12.4, but may not be used for both Note• If the list of MBE/VVBEs for a particular subcontracting/supplier opportunity is ten or less, the offeror must contact the entire list within such area of opportunity to be in compliance with 12.3 and 12.4 If the list of MBE/1NBEs for a particular subcontracting/supplier opportunity is more than ten, the offeror must contact at least two-thirds of the list within such area of opportunity, but not less than ten, to be in compliance with 12.3 and 12.4 12 5 Provide plans and specifications or information regarding the location of plans and specification to MBE/WBEs 12 6 Submit affidavit and/or documentation if MBE/WBE bids were rejected on the basis of quotation not being commercially reasonable, qualifications, etc. Documents may be requested to be produced for an in camera inspection 13 "Joint Venture" means an association of two or more persons or businesses to carry out a single business enterprise for profit for which purpose they combine their property, capital, skills, knowledge and management in an agreed to proportionate share 14 "Managing Department" means the department responsible for overseeing the day to day completion of the contract. 15 "Manufacturer" means one that manufactures a product by hand or machinery suitable for uses, the process of making wares 16 "Marketplace" means the geographic market area as defined in the Availability and Disparity Study represented by the counties of Tarrant, Parker, Johnson, Collin, Dallas, Denton, Ellis, Kaufman and Rockwall 17 "Minority" means a citizen of the United States or lawfully admitted permanent resident that is Asian American, American Indian, Black or Hispanic. 18 "Minority Business Enterprise" is defined as a qualified business concern located in the Marketplace or providing proof of doing business in the Marketplace at the time of bid opening or the opening of responses to requests for proposals, meeting the following criteria a which is at least 51 percent owned by one or more minority persons, or, in the case of any publicly owned business, at least 51 percent of the stock is owned by one or more minority persons, and b whose management and daily business operations are controlled by one or more minority persons who own it. 19 "Offeror" means any person, firm, corporation, or partnership that submits a bid or proposal to provide labor, goods or services to the City where funds are expended The term includes the term bidder and proposer 20 "Procurement" means the buying, renting, leasing or otherwise obtaining or acquiring any supplies, materials, equipment or services 21 "Professional Services" means services which require predominantly mental or intellectual labor and skills, includes, but is not necessarily limited to, architects, engineers, surveyors, doctors, attorneys, and accountants 22 "Project Manager" see Contract Officer 23 "Purchasing" means the buying, renting, leasing or otherwise obtaining or acquiring any supplies, materials, equipment or services excluding construction and professional services previously defined 24 "Qualified" means an individual or business entity having previously performed or received training in the work, industry or profession required 25 "Regular Dealer" is defined as a firm that owns, operates, or maintains a store, a warehouse, or other establishment in which the materials or supplies required for the contract are bought, kept in stock, and are regularly sold retail or wholesale 26 "Subcontract" means an agreement between the contractor and another business entity for the performance of work. 27 "Subcontract/Supplier Opportunity" means an area where there is more than one MBE or WBE subcontractor/supplier in the market place 28 "Tier" means the level of subcontracting below the prime contractor/consultant, i e , a direct payment from the prime contractor to a subcontractor is considered 1St tier, a payment by a subcontractor to its supplier is considered 2"d tier 29 "Women Business Enterprise" is defined as a qualified business concern located in the Marketplace or provide proof of doing business in the Marketplace at the time of bid opening or the opening of responses to requests for proposals, meeting the following criteria a which is at (east 51 percent owned by one or more women, or, in the case of any publicly owned business, at least 51 percent of the stock is owned by one or more women, and b whose management and daily business operations are controlled by one or more women who own it. II PROGRAM GOAL A. A Citywide goal for the utilization of minority business enterprises (MBE} and women business enterprises (WBE) shall be reviewed and approved annually by the City Council 1 The City Manager shall, on or before October 31 of each year, beginning October 31, 1996, conduct an analysis of the availability of MBEs and WBEs and present to the City Council an annual report on MBE/V1/BE availability and utilization 2 Based on the availability of MBE/WBEs in the Marketplace and the City's most recent goal attainment and with the advice and counsel of the MWBEAC, the City Manager shall recommend to the City Council a reasonable goal for the remainder of the current fiscal year 3 The goal shall be expressed in terms of a percentage of the total dollar value of all applicable contracts awarded by the City Goals shall be established separately for categories of construction, professional services, and purchasing as well as any other categories that the City Council or City Manager deems appropriate B Individual project goal shall be set by the MBE/WBE Office in collaboration with the Contract Officer and Risk Management (where appropriate) prior to solicitation The project goal shall be reasonable and shall be based upon 1 Specific subcontracting and/or materials opportunities required to complete the project, and 2 The availability of MBE/V1/BE in the identified subcontracting and/or materials opportunities in the Marketplace III. COUNTING MBE/WBE PARTICIPATION A. MBE/V1/BE participation shall be counted tgward meeting Goal in accordance with the following provisions For the purpose of determining compliance with the goal requirements established in this ordinance, businesses will be counted as MBE or WBE only when they have been certified as such prior to a recommendation for award being made to the City Council a) Any business listed by an offeror that is not certified at the time of bid/response opening must file an application for certification within a reasonable time for the City to consider the dollar amount towards meeting the goal b) If a business described in the immediate subparagraph fails to submit an application for certification within a reasonable time, or if the business is denied certification, the offeror shall be afforded five (5) City business days to secure additional certified/certifiable MBE/V1/BE participation, starting the next City business day following the day the written notification was received from the Managing Department. c) Evidence of the additional certified/certifiable MBE/VVBE participation shall be delivered to and received by the Managing Department within five (5) City business days after the notification was received by the offeror, exclusive of the date that the notification was received 2 Except as provided for in paragraph 3 below, if the offeror is ruled non- responsive to the requirements of this ordinance, the Managing Department will provide written notification to the offeror stating the specific basis for the ruling The offeror may submit documentation that it will either meet or exceed the stated goal, and may be considered for an award of contract. 3 If the offeror is ruled non-responsive solely for its failure to identify a subcontract/supplier opportunity and that opportunity is less than three (3%) percent of the total bid, the offeror may submit documentation that an MBE/WBE will be utilized for that subcontract/supplier opportunity, and may be considered for an award of contract. 4 Documentation required under either paragraph A or B above must be received by the Managing Department within five (5) City business days, exclusive of the date that the offeror was ruled non-responsive If the documentation is not received within the stated time, the offeror shall be deemed to have withdrawn its bid The City will not communicate with another offeror regarding award of the contract until five (5) City business days after the original offer has been ruled non-responsive 5 The offeror may count toward the goal any tier of MBE or WBE subcontractors and/or suppliers It is the sole responsibility of the offeror to report and document all subcontracting and/or supplier participation dollars counted towards the goal, irrespective of tier level Failure to submit documentation as required in this subparagraph, shall entitle the City to withhold payments until compliance is attained 6 The offeror will be given credit toward the goal only when the MBE or WBE subcontractor performs a commercially useful function An MBE or WBE subcontractor is considered to have perfarmed a commercially useful function when a) It is responsible for the execution of a distinct element of the work by actually performing, managing and supervising the work involved in accordance with normal business practice, and b) When the firm receives due compensation as agreed upon for the work performed 7 The offeror will be given credit toward the MBE/WBE contract goal only when the MBE or WBE supplier performs a commercially useful function. A MBE or WBE supplier is considered to have performed a commercially useful function when the MBE/WBE supplier is a manufacturer or a regular dealer 8 Regardless of whether an arrangement between the contractor and the MBE/V1/BE represents standard industry practice, if the arrangement erodes the ownership, control or independence of the MBE/VVBE or does not meet the commercially useful function requirement, the offeror shall receive no credit toward the goal 9 An offeror may count toward its goal a portion of the total dollar value of a contract with a joint venture equal to the percentage of MBE or WBE participation in the joint venture a) The Managing Department must receive the Joint Venture form from the offeror within five (5) City business days after the date of bid/proposal opening, exclusive of the day of the bid/proposal opening, for certification by the MBE/WBE Office b) The MBE or WBE involved in the joint venture must be responsible for a clearly defined portion of the work to be performed, equal to a share in the ownership, control, knowledge, management, responsibility, risks, and profits of the joint-venture B Except for joint ventures, the prime contractor and any work performed by the prime contractor is not considered for determining compliance with this ordinance C The offeror may not count toward the goal any agreement with a MBE or WBE that does not meet the requirements of this ordinance IV MBE/WBE UTILIZATION REQUIREMENTS A. In addition to the requirements set forth elsewhere, bid conditions and requests for proposals shall include a statement of the MBE/WBE goal established for the project. B Bid conditions, requests for proposals, and all other specifications for applicable contracts to be awarded by the City shall require that offerors make a good faith effort (GFE) to subcontract with or purchase supplies from MBE and/or WBE firms Such specifications shall require the offeror to meet or exceed the stated goal or submit documentation of GFE for all applicable contracts to permit a determination of compliance with the specifications. C Construction and Professional Services contracts and such other contracts which may be competed for under sealed proposal procedures (estimated cost of $25,000 or more) and Purchasing contracts (estimated cost of $15,000 or more) shall be awarded and administered in accordance with the following standards and procedures Competitive bids for applicable contracts shall include the MBE/WBE specifications in the bid specifications MBE/WBE specifications consist of the SPECIAL INSTRUCTIONS TO BIDDERS, MBE/WBE UTILIZATION FORM, PRIME CONTRACTOR WAIVER FORM, the GOOD FAITH EFFORT FORM, and, if appropriate, the JOINT VENTURE FORM. a) Competitive bids that equal or exceed the project goal must submit the MBE/WBE UTILIZATION FORM b) Competitive bids that do not have subcontracting and/or supplier opportunities must submit the PRIME CONTRACTOR WAIVER FORM c) Competitive bids that have subcontracting and/or supplier opportunities but do not include MBE/WBE participation in an amount which equals or exceeds the project goal, must submit the MBE/WBE UTILIZATION FORM and the GOOD FAITH EFFORT FORM and documentation d) Competitive bids that have subcontracting and/or supplier opportunities but do not include any MBE/WBE participation must submit the GOOD FAITH EFFORT FORM and documentation e) The offeror shall submit the MBE/WBE UTILIZATION FORM, PRIME CONTRACTOR WAIVER FORM and/or the GOOD FAITH EFFORT FORM ("Documentation") as appropriate The managing department must receive the Documentation no later than 5 00 p m ,five (5) City business days after the bid opening date, exclusive of the bid opening date The offeror shall obtain a receipt from the appropriate employee of the managing department to whom delivery was made Such receipt shall be evidence that the City received the Documentation f) The submission of the applicable completed form(s) within the allotted time will be considered when determining the responsiveness of the bid Failure to comply with the bid specifications, inclusive of the MBE/V1/BE specifications, shall render the offeror non-responsive 2 Other than responses to Requests for Proposals for those professional services defined in Chapter 2254 of the Texas Government Code, responses to Request for Proposals shall include a section which identifies the particular MBE and/or WBE to be utilized in performing the contract. a) Specify as to MBE or WBE, the estimated percentage of the MBE or WBE participation, the type of work to be performed by the MBE or WBE, and such other information as may reasonably be required to determine the responsiveness to the Request for Proposal b) Responses that do not meet or exceed the utilization goal, as required by the Request for Proposal, must submit a GFE explanation Failure to include such GFE explanation shall render the response non-responsive 3 Initial responses to requests for proposals for those professional services defined in Chapter 2254 of the Texas Government Code shall not include a response to the requirements of this ordinance The City shall comply with the requirements of said Chapter and rank the professional on the basis of demonstrated competence and qualifications During negotiating the contract with the highest ranked professional, the professional shall respond to this ordinance in the manner specified in paragraph 2(a) above 4 The GFE documentation shall demonstrate the Offeror's commitment and honest efforts to utilize MBE or WBE The burden of preparing and submitting the GFE information is on the Offeror and will be evaluated as part of the responsiveness to the bid/proposal An Offeror who intentionally and/or knowingly misrepresents facts on the documentation submitted will constitute a basis for classification as non-responsive and possible debarment. 5 The contracting department may request the MBE/WBE Office to waive the goal requirements of this subsection, or to reduce the amount of the goal, in accordance with the provisions of the Exceptions and Waivers section D The City Manager, with the advice and counsel of the MWBEAC in accord with City of Fort Worth Resolution No 1148, shall adopt regulations governing the purchase of goods and services under $15,000 V POST-AWARD COMPLIANCE A. In addition to such other requirements as may be set forth elsewhere, the following shall apply to applicable contracts awarded by the City• 1 Contracts shall incorporate this ordinance by reference, and shall provide that the contractor's violation of this ordinance shall constitute a breach of such contract and result in debarment in accord with the procedures outlined in this ordinance 2 From and after the date of bid opening, any proposed change or deletion in MBE/WBE participation identified in the bid, proposal or contract shall be reviewed by the MBE/WBE Office to determine whether such change or deletion is justified in accord with paragraphs 3 and 4 immediately below Any unjustified change or deletion shall be a material breach of contract and may result in debarment in accord with the procedures outlined in this ordinance 3 From and after the date of bid opening, the contractor shall a) Make no unjustified changes or deletions in its MBE/VVBE participation commitments submitted with the bids, proposal or during negotiations, b) If substantial subcontracting and/or substantial supplier opportunities arise during the term of any contract when the contractor represented in its bid to the City that it alone would perform the subcontracting/supplier opportunity work, the contractor shall notify the City before subcontracts for work and/or supplies are let and shall be required to comply with Article I, subsections 12 3 and 12 4 of this Attachment 1, exclusive of the time requirements stated in such subsections, c) Maintain records reasonably necessary for monitoring their compliance with the provisions of this ordinance, d) After the first payment and beginning with the second application for payment, submit required M/VVBE Periodic Payment Reports, including proof of payment documentation, to the MBE/V11BE Office Further, upon request of the M/WBE Office, submit such other documentation as may be reasonably required to verify proof of payments Failure to submit these reports and other requested information, if any, as required shall authorize the City #o withhold payment from the contractor until compliance with this ordinance is attained 4 The contractor shall submit to the MBE/WBE Office for approval a M/WBE REQUEST FOR APPROVAL OF CHANGE FORM if, during the term of any contract, a contractor wishes to change or delete one or more MBE or WBE subcontractor(s) or supplier(s) a) Within three (3) City business days after receipt by the MBE/WBE Office, exclusive of the date of receipt, the Request shall be reviewed The Request shall be approved if the change or deletion is justified The following shall constitute justification for the requested change or deletion 1) A MBE or WBE's failure to provide workers' compensation insurance evidence as required by state law; or 2) A MBE or WBE's failure to provide evidence. of general liability or other insurance under the same or similar terms as contained in the contract documents with limits of coverage no greater than the lower of 1) the limits required of the contractor by the City; or 2) the limits contained in the contractor's standard subcontract or supply agreements used on other projects of similar size and scope and within the contractor's normal business practice with non MBE or WBE subcontractor's or suppliers, or io 3) A MBE or WBE's failure to execute the contractor's standard subcontract form, if entering a subcontract is required by the contractor in its normal course of business, unless such failure is due to i A change in the amount of the previously agreed to bid or scope of work; or ii The contract presented provides for payment once a month or longer and the contractor is receiving payment from the City twice a month, or iii Any limitation being placed on the ability of the MBE or WBE to report violations of this Ordinance or any other ordinance or violations of any state or federal law or other improprieties to the City or to provide notice of any claim to the contractor's surety company or insurance company 4) An MBE or WBE defaults in the performance of the executed subcontract. In this event, the contractor shall i Request bids from all MBE and/or WBE subcontractors previously submitting bids for the work, ii If reasonably practicable, request bids from previously non-bidding MBEs and WBEs, and iii Provide to the M/WBE office documentation of compliance with (i) and (ii) above 5) Any other reason found to be acceptable by the MBE/WBE Office in its sole discretion NOTE. The contractor shall submit such documentation as may reasonably be requested by the MBE/VUBE Office to support the contractor's request. The time between the request by the MBE/WBE Office for additional documentation and the delivery of such documentation shall not be included within the time period that the MBE/VVBE Office is required to respond as stated in subparagraph (a) above. b) If the MBE/WBE Office approves the deletion of a MBE or WBE and replacement by a non-MBE or WBE, such approval shall constitute a post award waiver to the extent of the value of the deleted subcontract. c) If the MBE/WBE Office denies the request for change or deletion, the contractor may appeal the denial to the City Manager whose decision will be final 5 Whenever contract, amendments, change orders, or extra work orders are made individually or in the aggregate, the contractor shall comply with the provisions of this ordinance with respect to the alternates, amendments, change orders, or extra work orders ~~ a) If the amendment, change order, or extra work affects the subcontract of an MBE or WBE, such MBE or WBE shall be given the opportunity to perform such amendment, change order or extra work. b) If the amendment, change order or extra work is not covered by any subcontractor performing like or similar work, and the amount of such amendment, change order or extra work exceeds ten percent (10%) of the original contract amount, the contractor shall comply with Article 1, subsections 12 3 and 12 4 of this Attachment 1 (exclusive of the time requirements stated therein) with respect to such amendment, change order, or extra work. 6 If the contractor in its bid included any second or lower tier subcontractor/supplier towards meeting the goal, it is the responsibility of .the contractor to report and document all subcontracting and/or supplier participation dollars irrespective of tier level Failure to comply with the City's request to provide the required documentation shall entitle the City to withhold payments (but only to the extent of the subcontractor's payments related to the MBE/WBE participation dollars which are not documented) and/or to reject future bids from the contractor until compliance with this ordinance is attained 7 Upon completion of the contract and within ten (10) City business days after receipt of final payment from the City, exclusive of the date the contractor receives payment, the contractor shall provide the MBE/VVBE Office with the M/WBE FINAL SUMMARY PAYMENT REPORT FORM to reflect the final participation of each subcontractor and/or supplier (including non-M/WBEs) used on the project. Failure to comply with the City's request to provide the required documentation shall entitle the City to reject future bids from the contractor until compliance with this ordinance is attained 8 In the event a contractor is in non-compliance with either paragraph 6 or 7 above, and such non-compliance is solely the result of an act or omission by an MBE or WBE, the MBE/WBE Office shall consider such in determining what action, if any, to take VI. EXCEPTIONS AND WAIVERS A. If an offeror is unable to comply with the goal requirements established in the Program Goal section of this ordinance, such offeror shall submit one of the two forms listed below within the allotted time 1 A Prime Contractor Waiver Form (Attachment 1 B) is submitted if the offeror will perform the entire contract without subcontractors or suppliers 2 A Good Faith Effort Form (Attachment 1 C) is submitted if the offeror has subcontracting and/or supplier opportunities but was unable to meet or exceed the project goal The offeror will submit requested documentation that demonstrates a good faith effort to comply with the goal requirements as described in the Program Goal section above 12 0 B A contracting department may request the MBE/WBE Office to waive or modify the goal requirements for MBE or WBE by submitting a Departmental Waiver Form, in writing, prior to solicitation of bids or proposals The MBE/WBE Office may grant such a waiver or reduction upon determination that: The reasonable and necessary requirements of the contract render subcontracting or other participation of business other than the offeror infeasible, or 2 A public or administrative emergency exists which requires the goods or services to be provided with unusual immediacy; or 3 Sufficient MBE/WBE providing the services required by the contract are unavailable in the marketplace of the project, despite attempts to locate them, or 4 The application of the provisions of this ordinance will impose an unwarranted risk on the City or unduly delay acquisition of the goods or services C Whenever the MBE/WBE Office denies a request to waive a goal, the contracting department may appeal that denial to the City Manager whose decision on the request shall be final VII PROGRAM ADMINISTRATION A. The City Manager,. with the advice and counsel of the MWBEAC in accord with City of Fort Worth Resolution No 1148, is authorized to establish and implement the regulations set forth in this ordinance The MBE/WBE Office shall be responsible for the overall administration of the City's MBE/WBE Program, and its duties and responsibilities shall include 1 Recommending rules and regulations to effectuate this ordinance, 2 Maintaining a current listing of certified MBE and WBE firms for distribution internally and externally on contracts, 3 Providing information and needed assistance to MBE/WBEs to increase their ability to compete effectively for the award of City contracts, 4 Investigating alleged violations of this ordinance and making written recommendations to appropriate City authorities for remedial action when appropriate, 5 Developing 'and distributing all necessary forms, applications, and documents necessary to comply with this ordinance, 6 Reviewing, on a regular basis, the progress of departments toward achieving the category goals for the utilization of minority and women business enterprises, 7 Making recommendations to appropriate City staff regarding methods to further the policies and goals of this ordinance, 13 8 Determining MBE/VVBE compliance on contracts before they are submitted to the City Council for award, 9 Maintaining accurate contract performance reporting system, and 10 Compiling a report reflecting the progress in attaining the City's annual goal, quarterly and annually B It shall be the responsibility of the contracting department to ensure that bids or proposals emanating from the department adhere to the procedures and provisions set forth in this ordinance The department director or designee shall assume primary responsibility for achieving the goals of this program and shall review, on a continuing basis, all aspects of the program's operations to assure that the purpose is being attained 2 The contracting department shall take the following action to ensure that MBEs and WBEs have the maximum opportunity to participate on City contracts a) A written notification shall be sent to minority and women trade associations, contractor's associations, and minority and women chambers of commerce about the availability of formally advertised contracting opportunities no less than 28 days before bids are due, b) All applicable contract solicitations shall include the requirements contained in this ordinance, c) All contracting opportunities shall be evaluated in an effort to divide the total requirements of a contract to provide reasonable opportunities for MBE/WBE, d) For construction and professional service contracts, establish procedures to ensure that all contractors' invoices are paid twice a month and that subcontractors are paid within five (5) City business days after receipt of payment. A contractor's failure to make payments within five (5) City business days shall authorize the City to withhold future payments from the contractor until compliance with this ordinance is attained e) Establish guidelines to ensure that a notice to proceed is not issued until signed letters of intent evidencing receipt by the MBE/WBE or executed agreements with the MBE/WBE have been submitted, f) Ensure that all required statistics and documentation are submitted to the MBE/WBE Office as requested, and g) If circumstances prevent the contracting department from meeting the 28-day advertising and notification requirements, the contracting department shall perform extensive outreach to MBE/WBE associations or other relevant organizations to inform them of the contracting opportunity 14 VIII CERTIFICATION The City will recognize MBE/V1/BE that are certified by the Texas Department of Transportation (TxDOT), highway division or the North Central Texas Regional Certification Agency (NCTRCA) In the event of denial of certification by either of these entities, the City reserves the right to grant its own certification for use in City contracts IX. CONTRACT MONITORING, AND REPORTING A. The MBE/WBE Office shall monitor compliance with these requirements during the term of the contract. If it is determined that there is cause to believe that a contractor or subcontractor has failed to comply with any of the requirements of this ordinance, or the contract provisions pertaining to MBE/WBE utilization, the MBE/V1/BE Office shall notify the contracting department and the contractor The MBE/V1/BE Office shall attempt to resolve the noncompliance through conciliation If the noncompliance cannot be resolved, the Coordinator and the contracting department shall submit written recommendations to the City Manager or designee, and if the City Manager concurs with the findings, sanctions shall be imposed as stated in ordinance B Whenever the MBE/WBE Office finds, after investigation, that a contracting department has failed to comply with the provisions of this ordinance, a written finding specifying the nature of the noncompliance shall be transmitted to the contracting department, and the MBE/VVBE Office shall attempt to resolve any noncompliance through conference and conciliation Should such attempt fail to resolve the noncompliance, the Coordinator shall transmit a copy of the findings of noncompliance, with a statement that conciliation was attempted and failed, to the City Manager who shall take appropriate action to secure compliance C The MBE/WBE Office may require such reports, information, and documentation from contractors, offerors, contracting agencies, and the head of any department, division, or office of the City of Fort Worth, as are reasonably necessary to determine compliance with the requirements, within ten (10) days after the notice of noncompliance. D Contracting departments shall maintain accurate records for each contract awarded, including dollar value, the nature of the goods or services to be provided, the name of the contractor awarded the contract, the efforts it employed to solicit bids from MBE/VVBE, identifying for each its dollar value, the nature of the goods or services provided, and the name of the subcontractor E The City Manager, with the advice and counsel of the MWBEAC in accord with City of Fort Worth Resolution No 1148, shall submit an annual report to the City Council on the progress of the City toward the utilization goale established by this ordinance, together with an identification of problems and specific recommendations for improving the City's performance 15 X. DEBARMENT A. An Offeror who intentionally and/or knowingly misrepresents facts shall be determined to be an irresponsible offeror and barred from participating in City work for a period of time of not less than three (3) years B The failure of an Offeror to otherwise comply with this ordinance and which constitutes a material breach of contract as stated herein, may result in the Offeror being determined to be an irresponsible Offeror and barred from participating in City work for a period of time of not less than one (1) year C The MBE/WBE Office will send a written statement of facts and a recommendation for debarment to the City Manager The City Manager, after consultation with the Department of Law, will make the decision regarding debarment and send a certified notice to the Offeror D An offeror that receives notification of debarment may appeal to an Appeal Board, hereinafter created, by giving written notice within ten (10) days from the date of receipt of the debarment notice, to the City Manager of its request for appeal E An Appeal Board, consisting of not less than three members appointed by the City Manager with the approval of the City Council, will meet within thirty (30) days from the date of receipt of the request for appeal of debarment, unless Offeror requests an extension of time The Offeror will be notified of the meeting time and location F The Offeror will be afforded an opportunity to appear with Counsel if they so desire, submit documentary evidence, and confront any person that the City presents G The Appeal Board will render its decision not more than thirty (30) days of the hearing and send a certified notice to the Offeror H If the Appeal Board upholds the original debarment, the Offeror may appeal to the City Council within ten (10) days from the date of receipt of the Appeal Board's decision by giving written notice to the City Manager The appeal will be placed on the City Council agenda within thirty (30) days from receipt of written notice, unless Offeror requests an extension in writing J From the date of notification of debarment and during the pendency of any appeal, the City will not consider offers from, award contracts to, renew or otherwise extend contracts with, or contract directly or indirectly through subcontracts with the Offeror pending the Appeal Board's decision K. Any MBE or WBE subcontractor or supplier who intentionally and/or knowingly misrepresents facts or otherwise violates the provisions of this ordinance may be determined to be irresponsible for a period of time not to exceed one (1) year, and if deemed irresponsible, such MBE or WBE shall not be included in calculating an offeror's responsiveness 16 Xi SEVERABILITY If any provision of this attachment or ordinance, the application thereof to any person or circumstance is held invalid for any reason in a court of competent jurisdiction, such invalidity shall not affect the other provisions of any other application of this attachment or ordinance which can be given effect without the invalid provision or application, and to this end, all the provisions of this attachment or ordinance are hereby declared to be severable i~ SECTION 4. This ordinance shall be cumulative of all provisions of ordinances and of the Code of the City of Fort Worth, Texas (1986), as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed SECTION 5. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and, if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section SECTION 6 This ordinance shall take effect and be in full force and effect from and after its passage, and it is so ordained APPROVED AS TO FORM AND LEGALITY ~~~~ Assistan ity Attorney Date ~~z/9~ ADOPTED C~/z/98 EFFECTIVE _ ~Iz/~'~ City of Fort Worth, Texa,~ ~-~ y C C, n A ar And aunc~l at»mun~cAt~a DATE REFERENCE NUMBER LOG NAME PAGE 6/2/9$ G-12224 02MWBE 1 of 1 . SUBJECT AMEND MINORITY AND WOMEN BUSINESS ENTERPRISE ORDINANCE NO 11923 RECOMMENDATION It is recommended that the City Council I 1 Adopt the attached Ordinance amending the Minority Business Enterprise and Women Business Enterprise Ordinance No 11923, and 1 2 Extend the review of the amended Ordinance until December 1998, while an updated Availability and Disparity Analysis is conducted DISCUSSION In April 1995, the City Council approved the Minority and Women Business Enterprise (M/VVBE) Ordinance No 11923, effective June 1, 1995 The ordinance is based upon the results of the Availability and Disparity Study (Study) conducted by Browne, Bortz & Coddington, Inc., in 1993 The purpose of the Ordinance is to remedy the effects of past underutilization in the marketplace by increasing the use of M/V11BEs above the disparity findings identified in the Study The Minority and Women Business Enterprise Advisory Committee (MWBEAC), along with City Staff, have conducted numerous meetings with all interested parties before recommending these amendments. Some of the major amendments to the ordinance include. The City's right to grant certification in the event of denial by Texas Department of Transportation, Highway Division or North Central Texas Regional Certification Agency; refined "Good Faith Effort" requirements, clearly stated time-lines on receipt of information, elimination of size standard, the acceptance of any tier to achieve compliance, additional days for compliance, prime contractor and M/WBE accountability to meet their initial commitments, and debarment or irresponsible offeror procedures. The current Ordinance requires the City Council to regularly, at least every three years, determine whether there is a continuing need for a M/VVBE program, make relevant findings, and, if necessary, repeal in whole or in part or enact appropriate amendments to the Ordinance The recommended extension of the amended ordinance will allow an availability and disparity study to be initiated that will provide the statistical and legal analysis necessary for this review FISCAL INFORMATION/CERTIFICATION The Director of the Department of Finance certifies that this action will not have any material effect on City funds. MG' Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT~~ CITY SECRETARY Office by: (to) APPROVED Ramon Guajardo 6140 ~~ 1 ~ ~i,l4JN~i~ Originating Department Head: +~:~~ Sundra Davis 6104 (from) ~, ~ / ~ Additional Information Contact: r '~I. ~x~:~`i~~F~ Sundra Davis 6104