Cleveland, OH Code of Ordinances

CHAPTER 187 – CLEVELAND AREA BUSINESS CODE 187.01 Definitions of Terms

187.02 Duties of Director of Office of Equal Opportunity

187.03 Certification of Cleveland Area Small Businesses; Application of Bid Discounts for Bid Comparison

187.04 CSB Goals of Contracting Departments

187.05 Certification of Minority Business Enterprises and Female Business Enterprises

187.06 MBE/FBE Goals of Contracting Departments

187.07 Certification as a Contract Prerequisite; Certification Process

187.08 Good-Faith Effort of Bidders and Contract Provisions

187.09 Contracts with Other Governmental Entities as Contractors

187.10 CSB Joint Ventures

187.11 MBE/FBE Joint Ventures

187.12 Responsibilities of Contracting Departments

187.13 Exceptions, Substitutions and Waivers

187.14 Small Contract Rotation Program

187.15 Employment; Nondiscrimination; Goals of Contractors

187.16 Compliance with Employment Goals

187.17 Compliance Monitoring

187.18 Hearing Procedure

187.19 Subpoena Power

187.20 Decision and Available Sanctions for Noncompliance

187.21 Notices Required in Advertisement for Bids

187.22 Equal Opportunity Clause; Terms in Contracts

187.23 Review and Evaluation Committee

187.24 Reports

187.25 Violations; Disqualification; Penalty

187.26 Training Courses and Development Activities

187.27 Severability

187.28 Applicability of this Code to MBEs and FBEs

187.29 Professional Consultants

Cross-reference:

Office of Equal Opportunity, CO 123.08

Statutory reference:

Civil Rights Commission, RC Ch. 4112

§ 187.01 Definitions of Terms

As used in this chapter, the following words, phrases, and terms shall be defined as set forth below:

(a) “Administrator” means the employee or employees in the OEO designated by the Director to act as an administrator of the Cleveland Area Business Program.

(b) “Bidder” means a Person offering to contract with the City in response to an invitation to bid, and for purposes of this Code, includes a proposer in response to a request for proposals or other similar solicitation.

(c) “Bid Discount” means the application of a percentage discount to the total amount of a bid submitted by a Bidder for a Contract solely for the purpose of bid comparisons when evaluating the lowest and best bid, or lowest responsible bid. The use of a Bid Discount for Bid Comparison does not alter the total amount of the bid submitted by a Bidder or the Contract executed based on a bid.

(d) “Business Enterprise” means a firm, sole proprietorship, partnership, association, corporation, company, or other business entity of any kind including, but not limited to, a limited liability corporation, incorporated professional association, joint venture, estate, or trust.

(e) “City” means the City of Cleveland, Ohio.

(f) “City of Cleveland Small Business” or “CCSB” means a CSB that has its principal office located physically within the municipal boundaries of the City.

(g) “Cleveland Area Business Code”, “Cleveland Area Business Program”, “Code” or “Chapter” means all of the provisions of this Chapter 187 of the Codified Ordinances of Cleveland, Ohio, 1976.

(h) “Cleveland Area Small Business” or “CSB” means a Business Enterprise certified under division (a) of Section 187.03.

(i) “Cleveland Contracting Market” or “Contracting Market” means the geographic market area consisting of Cuyahoga County, Ohio, or the geographic market area identified in a disparity study or otherwise as provided in Section 187.28.

(j) “Commercially Useful Function” means execution by a CSB, MBE, or FBE of a distinct element of the work in carrying out its responsibilities by actually performing, managing, and supervising the work involved by its personnel, materials, and assets. To determine whether a Business Enterprise is performing a Commercially Useful Function, the City will evaluate the amount of the Contractor’s work which is appropriate to be subcontracted and actually subcontracted, industry practices, and other relevant factors tending to demonstrate actual performance.

(k) “Construction” means the erection, rehabilitation, alteration, conversion, extension, demolition or repair of improvements to real property, including facilities providing utility service and includes the supervision, inspection, and other on-site functions incidental to construction.

(l) “Contract” means a binding agreement executed on or after the effective date of this Cleveland Area Business Code by which the City either grants a privilege or is committed to expend or does expend its funds or other resources, or confers a benefit having monetary value including, but not limited to, a grant, loan, interest in real or personal property, or tax incentive in any form for or in connection with any work, project, or public purpose including, but not limited to, a contract for the:

(1) Construction of any public improvement, including change orders or subsidiary agreements approved by the City during the performance of such Construction;

(2) Purchase of personal property;

(3) Purchase of any supplies, equipment or services;

(4) Lease by way of concession under Section 183.03;

(5) Lease of any personal property; or

(6) Grant by concession agreement of a specific permission, privilege, or license under sections 183.04, 183.041, and 183.044 of the Codified Ordinances.

“Contract” shall include a binding agreement, funded or benefitted by the City, between a party to a Contract and a third party, but shall exclude contracts with other public entities, except as provided in Section 187.09. For purposes of MBE and FBE utilization, “Contract” shall only include the specific types and categories of Contracts and Contractors identified in a disparity study or otherwise as the subject of past or present discrimination as provided in Section 187.28. “Contract” shall exclude loans and grants under fifty thousand dollars ($50,000.00) for storefront renovation. The exclusion of loans and grants under fifty thousand dollars ($50,000.00) for storefront renovation shall expire and have no further force and effect on March 1, 2012, unless changed by further legislation of this Council.

(m) “Contracting Department” includes any administrative department under charge of the Mayor or any office, board, or commission treated or construed as a department of City government for any purpose under the Charter or ordinances of the City for the benefit or program of which the City enters into a particular Contract.

(n) “Contractor” means a separate or distinguishable Business Enterprise employing one (1) or more persons and participating in the performance of a Contract, including but not limited to CSBs, MBEs and FBEs where applicable, and shall include a party in privity with a Contractor for implementation of a Contract.

(o) “Control” means the unencumbered ability to direct operations and management.

(p) “Director” means the Director of the Office of Equal Opportunity.

(q) “Disability” means any physical or mental impairment that substantially limits one (1) or more of an individual’s major life activities.

(r) “Discriminate” means to exclude an individual or group solely on the basis of race, religion, color, sex, sexual orientation, gender identity or expression, national origin, age, Disability, ethnic group or Vietnam-era or disabled-veteran status.

(s) “Discriminate on the basis of age” means to Discriminate as determined by appropriate Federal law against individuals over the age of forty (40).

(t) “Evaluation Credit” means a predetermined number of points in the evaluation of proposals submitted by a Bidder for a Contract to be added solely for the purpose of proposal comparison when evaluating competing proposals. The use of Evaluation Credits does not alter the amount of the proposal submitted by a Bidder or the Contract executed based on the proposal.

(u) “Female” includes only a United States citizen or lawful, permanent resident who is a member of the female gender.

(v) “Female Business Enterprise” or “FBE” means a Business Enterprise owned, operated, and controlled by one (1) or more Females who have fifty- one percent (51%) ownership. The one (1) or more Females must have operational and managerial Control, interest in capital, and earnings commensurate with the percentage of Female ownership. To qualify as a Female Business Enterprise, the Business Enterprise shall be located and doing business in the Cleveland Contracting Market.

(w) “Front Organization” means any FBE, MBE, or CSB that serves as a Contractor, or as a subcontractor to any Contractor under Contract, who obtained and/or retained certification through false statements or who committed to performance of a distinct element of the work under the Contract but did not carry out its responsibilities by actually performing, managing or supervising the work involved, or who did not provide products, services, goods or supplies in a manner, in the Director’s determination, consistent with its certification.

(x) “Gender identity or expression” means the gender-related identity, external presentation of gender identity through appearance, or mannerism or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.

(y) “Joint venture” means an association of two (2) or more persons or businesses to carry out a single business enterprise for profit for which purpose they combine their property, capital, efforts, skills and knowledge.

(z) “Minority Person” means a United States citizen or lawful, permanent resident who is a member of a racial or ethnic group, such as African American, Hispanic American, Asian American or Native American, against whom past or present discrimination has been demonstrated as provided in Section 187.28.

(aa) “Minority Business Enterprise” or “MBE” means a Business Enterprise owned, operated and controlled by one (1) or more Minority Persons who have at least fifty-one percent (51%) ownership. The Minority Person(s) must have operational and managerial Control, interest in capital, and earnings commensurate with the percentage of ownership. To qualify as a Minority Business Enterprise, the enterprise shall be located and doing business in the Cleveland Contracting Market.

(bb) “OEO” means the Office of Equal Opportunity of the City of Cleveland.

(cc) “Person” means and includes a natural person, a Business Enterprise or other entity, unless the context or usage requires otherwise.

(dd) “Public Improvement” means a project determined by the City Council to be a public improvement under Section 167 of the Cleveland City Charter.

(ee) “Regional Cleveland Area Small Business” or “RCSB” means a CSB that has its principal office located physically within the territorial boundaries of Cuyahoga County but outside the municipal boundaries of the City.

(ff) “Regulation” or “Regulations” means and includes the regulations implementing this Code and promulgated by the Director of Equal Opportunity under division (b)(6) of Section 123.08 of these Codified Ordinances.

(gg) “Sexual Orientation” means a person’s actual or perceived homosexuality, bisexuality, or heterosexuality, by orientation or practice.

(hh) “Small Business Enterprise” or “SBE” means a Business Enterprise that meets the established economic criteria for a SBE and is owned, operated and controlled by one (1) or more persons who meet the economic criteria for SBE ownership established by the Director in the Regulations.

(ii) “Supplier” means a Business Enterprise performing a Commercially Useful Function in the supply process when it:

(1) Assumes the actual and contractual responsibility for furnishing the supplies or materials;

(2) Is recognized as a distributor of the contracted supplies and materials by the industry involved;

(3) Owns or leases a warehouse, yard, building or other facilities for stocking inventory or otherwise conducts business in a manner which is usual and customary in the industry and market for the supplies or materials; and

(4) Distributes, delivers, and services products primarily with its own staff and/or equipment.

(Ord. No. 1710-11. Passed 12-5-11, eff. 12-9-11)

§ 187.02 Duties of Director of Office of Equal Opportunity

In addition to those duties specified in Section 123.08, the Director, through the Administrator and other employees as necessary, shall implement and enforce this Code under its provisions. The Director’s duties shall include, but not be limited to:

(a) Reviewing all submittals and other information required under this Code to determine whether a particular Contractor has been certified or approved:

(1) With respect to the affirmative action programs established under divisions (b) and (c) of Section 187.15;

(2) As a CSB, CCSB or RCSB;

(3) As a bona fide CSB, MBE, or FBE Joint Venture;

(4) As a Minority Business Enterprise;

(5) As a Female Business Enterprise;

(6) As having submitted a responsive bid with respect to OEO required submittals; or

(7) As being in compliance with this Code and its regulations.

(b) Notifying an affected Contracting Department that the certificates or statements pertaining to particular Contractors are or are not currently effective with respect to the matters for which the same were issued;

(c) Monitoring the general performance, workforce, and subcontracting practices of Contractors to ensure continued compliance with this Code;

(d) Initiating and receiving complaints of non-compliance with this Code;

(e) Investigating complaints pertaining to non-compliance with this Code and recommending appropriate sanctions; and

(f) Implementing the hearing procedures provided in Sections 187.18 and 187.20.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.03 Certification of Cleveland Area Small Businesses; Application of Bid Discounts for Bid Comparison

(a) A Business Enterprise is eligible for certification as a Cleveland Area Small Business if:

(1) It is a Small Business Enterprise;

(2) It has its principal office located physically in the Cleveland Contracting Market; and

(3) Its chief executive officer and highest level managers maintain their offices and perform their managerial functions in the Cleveland Contracting Market.

(b) Subject to the limitation contained in division (g) of Section 187.05, Contracting Departments may apply a Bid Discount in the following amounts for bids received from CSB prime contractors:

(1) A Bid Discount of five percent (5%) for bids received from CCSBs.

(2) A Bid Discount of five percent (5%) for bids received from RCSBs, provided no bids are received from CCSB’s.

(c) Subject to the limitation contained in division (g) of Section 187.05, Contracting Departments may apply Evaluation Credits as follows for proposals received from CSB prime contractors:

(1) An Evaluation Credit of five percent (5%) of the total points awarded for proposals received from CCSBs;

(2) An Evaluation Credit of five percent (5%) of the total points awarded for proposals received

from RCSBs, provided no proposals are received from CCSBs.

(d) Subject to the limitation contained in division (g) of Section 187.05, Contracting Departments may apply a Bid Discount to bids received for a Public Improvement Contract from a Business Enterprise in the amount of five percent (5%) of the portion of the total amount of labor and materials that the Bidder represents it will subcontract to one (1) or more CSBs.

(1) If a Contracting Department applies the Bid Discount under division (d) of this section to the bid of a Bidder that would not have otherwise been the lowest and the Bidder is awarded the Public Improvement Contract, the City shall retain as Additional Retainage an amount equal to the total dollar amount by which the bid was adjusted for bid comparison in addition to the retainage required under Section 185.41 of the Codified Ordinances.

(2) If a Contractor uses CSB subcontractors in the performance of the Public Improvement Contract in an amount equal to or greater than offered in the Contractor’s bid, the City shall pay the Contractor any Additional Retainage retained under division (d)(1) of this section upon the Contracting Department director’s acceptance of the contract work under division (d) of Section 185.41. If a Contractor uses CSB subcontractors in the performance of a Public Improvement Contract in an amount less than represented in its bid, the Contractor shall forfeit the amount of the Additional Retainage equal to the amount of shortfall in its CSB usage, in addition to any other sanctions or penalties applicable under this chapter or the Contract.

(3) If a Contracting Department applies the Bid Discount under division (d) of this section to the bid of a Bidder that would not have otherwise been the lowest and the Bidder is awarded the Public Improvement Contract, the Contract terms shall prohibit the Contractor from deducting the amount of the Additional Retainage from progress payments to the CSB subcontractors.

(e) The maximum cumulative dollar amount of all Bid Discounts to a Bidder for a bid under divisions (b) and (d) of this section shall not exceed fifty thousand dollars ($50,000.00).

(f) Certificates issued under this section shall be valid for the period specified by the Director in the Regulations. Certification as a CSB is independent from certification as a MBE or FBE.

(g) By fifteen (15) days after the close of each calendar quarter, the Director shall publish a list of all CSBs certified during the preceding quarter, including the type(s) of work that each is certified to perform, and a list of all Business Enterprises that have lost their certification as a CSB during the preceding quarter, including whether an appeal of the denial of certification is pending. Concurrently, the Director shall furnish to the Council the name of any Business Enterprise to which OEO has denied certification as a CSB during the preceding quarter, including whether an appeal of the denial is pending. Publication of the CSB’s name shall not be a prerequisite for eligibility for the award of a Contract.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.04 CSB Goals of Contracting Departments

(a) Consistent with the City's goal of increasing the level of CSB participation in Contracts, each Contracting Department shall use its best efforts to utilize CSBs as Contractors and subcontractors for all contracts in excess of fifty thousand dollars ($50,000.00). The annual City-wide goal for CSB participation in Public Improvement Contracts shall be thirty percent (30%), in Professional Services Contracts shall be ten percent (10%), and in all other Contracts shall be twenty percent (20%) or such other goal fixed by the Director for a particular Contract.

(b) To meet the goals fixed under division (a) of this section, Contracting Departments, in consultation with the Director, shall consider use of Bid Discounts under division (b) and (d) of Section 187.03 when recommending a bid as lowest and best or lowest responsible or recommending a proposal as best. Each Contracting Department shall be responsible for ensuring that invitations to bid or requests for proposal issued by or for that department comply with all provisions and procedures set forth in this chapter.

(c) In determining the CSB participation that shall be applied toward meeting the goals fixed under division (a) of this section, the Director shall credit:

(1) Expenditures to CSBs that perform Commercially Useful Functions in implementation or performance of a Contract;

(2) Expenditures to CSB manufacturers (i.e. Suppliers that produce goods from raw materials or the product of raw materials and add value by substantially altering them before resale);

(3) Sixty percent (60%) of expenditures to CSB Suppliers that are not manufacturers, provided that the CSB Supplier performs a Commercially Useful Function in the supply process;

(4) Should a CSB subcontractor further subcontract its participation in a Contract to a non-CSB subcontractor, only the work or supplies actually performed or furnished by the CSB subcontractor shall be applied towards meeting the goals fixed under division (a) of this section;

(5) No credit shall apply for a Contractor's or a subcontractor's contract(s) for the purchase of materials, equipment, services, or supplies that are incident to the performance of services under the Contract or for the general operation of its business and not attributable exclusively to the particular subcontract; and

(6) A percentage of the total dollar value of the Contract with a CSB Joint Venture equal to the percentage of CSB participation in the Joint Venture shall be counted towards meeting the goals fixed under division (a) of this section. If the CSB is responsible for performance of a clearly defined portion of the work to be performed, equal in proportion to its share in the ownership, control, management, responsibility, risk, and profits of the Joint Venture.

(d) To fulfill the purposes of the goals fixed under division (a) of this section, Contractors shall use CSBs to perform a Commercially Useful Function during the implementation or performance of the Contract. Failure to do so will be a material breach of the Contract, and may subject the Contractor to criminal prosecution, decertification, and other sanctions.

(e) The Director shall not apply credit toward the CSB subcontractor participation goals fixed in division (a) of this section for participation under any Contract in a calendar year by any CSB subcontractor that has contracted under a City contract more than a maximum annual dollar amount per year fixed by the Director in the Regulations from time to time, except that the Director may apply credit toward the CSB subcontractor participation goals upon written request of a Bidder or Contractor attesting that no other certified CSBs are available to perform the work or supply the materials required for the Contract under which the CSB is a subcontractor, or in an emergency, or for such other reasons that the Director determines require use of that CSB. Nothing in the foregoing shall be deemed to prohibit a Contractor from subcontracting to that CSB, or that CSB from performing work or supplying materials under any Contract without participation credit.

(Ord. No. 532-13. Passed 5-13-13, eff. 5-16-13)

§ 187.05 Certification of Minority Business Enterprises and Female Business Enterprises

(a) A Business Enterprise is eligible for certification as a Minority Business Enterprise if:

(1) The Business Enterprise is owned, operated and controlled by one (1) or more Minority Persons who have at least fifty-one percent (51%) ownership;

(2) The Minority Persons who own the Business Enterprise have operational and managerial control, interest in capital, and earnings commensurate with the percentage of ownership; and

(3) The Business Enterprise is located and doing business in the Cleveland Contracting Market.

(b) A Business Enterprise is eligible for certification as a Female Business Enterprise if:

(1) The Business Enterprise is owned, operated and controlled by one (1) or more Females who have at least fifty-one percent (51%) ownership;

(2) The Female owners have operational and managerial control, interest in capital, and earnings commensurate with the percentage of ownership; and

(3) The Business Enterprise is located and doing business in the Cleveland Contracting Market.

(c) Contracting Departments may apply a Bid Discount of five percent (5%) for bids received from certified MBE and FBE prime contractors, as the Regulations provide to remediate past or present discrimination as provided in Section 187.28.

(d) Contracting Departments may apply an Evaluation Credit of five percent (5%) of the total points awarded for proposals received from MBE and FBE prime contractors, as the Regulations provide to remediate past or present discrimination as provided in Section 187.28.

(e) Contracting Departments may apply a Bid Discount for bids received for a Public Improvement Contract from a Business Enterprise in the amount of five percent (5%) of the portion of the total amount of the goods, labor, and materials that the Bidder represents it will subcontract to one (1) or more MBEs and FBEs.

(1) If a Contracting Department applies the Bid Discount under division (d) of this section to the bid of a Bidder that would not have otherwise been the lowest and the Bidder is awarded the Public Improvement Contract, the City shall retain as Additional Retainage an amount equal to the total dollar amount by which the bid was adjusted for bid comparison in addition to the retainage required under Section 185.41 of the Codified Ordinances.

(2) If a Contractor uses MBE and FBE subcontractors in the performance of a Public Improvement Contract in an amount equal to or greater than offered in the Contractor’s bid, the City shall pay the Contractor any Additional Retainage retained under division (e)(1) of this section upon the Contracting Department director’s acceptance of the contract work under division (d) of Section 185.41. If a Contractor uses MBE and FBE subcontractors in the performance of a Public Improvement Contract in an amount less than represented in its bid, the Contractor shall forfeit the amount of Additional Retainage equal to the amount of shortfall in its total MBE and FBE usage, in addition to any other sanctions or penalties applicable under this chapter or the Contract.

(3) If a Contracting Department applies the Bid Discount under division (e) of this section to a bid that would not have otherwise been the lowest and the Bidder is awarded the Public Improvement Contract, the Contract terms shall prohibit the Contractor from deducting the amount of the Additional Retainage from progress payments to the MBE and FBE subcontractors.

(f) The maximum cumulative dollar amount of all Bid Discounts to a Bidder for a bid under divisions

(c) and (e) of this section shall not exceed fifty thousand dollars ($50,000.00).

(g) If a Contracting Department applies a Bid Discount under divisions (c) or (e) of this section to one (1) or more bids for the award of a Contract, no Bid Discounts may be applied under divisions (b) or (d) of Section 187.03 to any bid under review for the award of that Contract. If a Contracting Department applies an Evaluation Credit under division (d) of this section to one (1) or more proposals for the award of a Contract, no Evaluation Credits may be applied under division (c) of Section 187.03 to any proposal under review for the award of that Contract.

(h) Certificates issued under this section shall be valid for the period specified by the Director in the Regulations.

(i) By fifteen (15) days after the close of each calendar quarter, the Director shall publish a list of all MBEs and FBEs certified during the preceding quarter, including the type(s) of work that each is certified to perform, and a list of all Business Enterprises that have lost their certification as an MBE or FBE during the preceding quarter, including whether an appeal of the denial of certification is pending. Concurrently, the Director shall furnish to the Council the name of any Business Enterprise to which OEO has denied certification as an MBE or FBE during the preceding quarter, including whether an appeal of the denial is pending. Publication of the MBE’s or FBE’s name shall not be a prerequisite for eligibility for the award of a Contract.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.06 MBE/FBE Goals of Contracting Departments

(a) Consistent with the City's goal of increasing the level of MBE and FBE participation in City Contracts when past or present discrimination against such type of MBEs or FBEs or category of contract has been evidenced as provided in Section 187.28, each Contracting Department shall use its best efforts to utilize certified MBEs and FBEs as Contractors or subcontractors for all contracts in excess of fifty thousand dollars ($50,000.00) where applicable. The Director may determine the appropriate annual City-wide goals for MBE and FBE participation for each type of Contract, including, but not limited to, Construction, non-professional and professional services, supplies, and concessions, and for each type of work to be performed under a particular Contract, based on the availability of certified MBEs and FBEs as to which past or present discrimination has been demonstrated as provided in Section 187.28. The Director shall cause the goals to be published in the Regulations.

The Director shall fix the goals for MBE and FBE participation in a particular Contract in consultation with the Contracting Department based upon the annual City-wide goals for each type of Contract and for each type of work to be performed in the Contract and the availability of certified MBEs and FBEs. The Director may fix the goals for a particular Contract at a level exceeding the annual City-wide goals to assist a Contracting Department in meeting the annual City-wide goal for the particular type of Contract to be awarded.

(b) Contracting Departments shall consider use of certified MBEs and FBEs when recommending a lowest and best or lowest responsible bid to meet the specified annual goals and may apply a Bid Discount for Bid Comparison under division (c) of Section 187.05. However, these goals are not intended as quotas. Each Contracting Department shall ensure that bids or proposals emanating from that department comply with the procedures and provisions in this chapter and the Regulations.

(c) In evaluating the MBE and FBE participation that shall apply toward a Contracting Department's annual goals, the Director shall credit:

(1) Expenditures to certified MBEs and FBEs that perform Commercially Useful Functions in implementation or performance of a Contract;

(2) Expenditures to certified MBE and FBE manufacturers (i.e. Suppliers that produce goods from raw materials or the product of raw materials and add value by substantially altering them before resale);

(3) Sixty percent (60%) of expenditures to certified MBE and FBE Suppliers that are not manufacturers, provided that the MBE and FBE Supplier performs a Commercially Useful Function in the supply process;

(4) Should a MBE or FBE subcontractor further subcontract its participation in a Contract to a non-MBE or non-FBE only the work actually performed by the MBE or FBE subcontractor shall apply towards the Contracting Department's annual MBE or FBE participation goals;

(5) No credit shall apply to a Contractor's or a subcontractor's contract(s) for the purchase of materials, equipment, services, or supplies that are incident to the performance of services under the Contract or for the general operation of its business and not attributable exclusively to the particular subcontract;

(6) A Contractor or subcontractor that qualifies as both a MBE and FBE may obtain certification as both a MBE and FBE. The total dollar value of a particular Contract with such Contractor or subcontractor may count only toward the MBE or FBE goal, but not toward both. The Contractor must choose the category to which the Contract value should be applied; and

(7) A portion of the total dollar value of the Contract with a CSB, MBE, or FBE Joint Venture equal to the percentage of certified CSB, MBE, or FBE participation in the Joint Venture may count toward meeting MBE and FBE goals. The CSB, MBE, or FBE must be responsible for performance of a clearly defined, distinct portion of the Contract work of equal proportion to its share in the ownership, control, management, responsibility, risk, and profits of the Joint Venture.

(d) To fulfill the purposes of the MBE and FBE goals, Contractors shall use MBEs and FBEs to perform a Commercially Useful Function in implementation or performance of the Contract. Failure to do so will not only be considered a material breach of the Contract, but may also subject the Contractor to criminal prosecution for fraudulent misrepresentation, decertification, and to other sanctions.

(e) The Director shall not apply credit toward the MBE and FBE subcontractor participation goals fixed under division (a) of this section for participation under any Contract in a calendar year by any one (1) MBE or FBE subcontractor that has contracted under a City contract more than a maximum annual dollar amount per MBE or FBE per year fixed by the Director in the Regulations from time to time, except that the Director may apply credit toward the MBE or FBE subcontractor participation goals upon written request of a Bidder or Contractor attesting that no other certified MBEs or FBEs are available to perform the work or supply the materials required for the Contract under which the MBE or FBE is a subcontractor, or in an emergency, or for such other reasons that the Director determines require use of that MBE or FBE. Nothing in the foregoing shall be deemed to prohibit a Contractor from subcontracting to that MBE or FBE, or that MBE or FBE from performing work or supplying materials under any Contract without participation credit.

(f) This section shall apply, as remedial action, only to the specified types and categories of Contracts and the contracting for those types and categories of Contracts, for which the City has developed or obtained, by disparity study or otherwise, a legally sufficient basis in evidence to demonstrate past or present discrimination as to participation of Minority Persons, Females, MBEs, or FBEs.

(Ord. No. 532-13. Passed 5-13-13, eff. 5-16-13)

§ 187.07 Certification as a Contract Prerequisite; Certification Process

(a) Each Bidder must hold a valid certificate of employment compliance for the equal employment of minorities and women in the contractor’s workforce, as described in division (b) of Section 187.16, unless the Mayor has waived such compliance.

(b) Each Bidder whose bid includes participation by CSBs, MBEs, or FBEs must demonstrate that the Bidder:

(1) Has reached a specific written agreement with each participating CSB, MBE, or FBE subcontractor;

(2) Has accurately and fully represented the essence of their agreement in the bid documents; and

(3) Is using CSBs, MBEs, or FBEs in a way which complies with this Code and the Regulations.

If the Administrator has made a finding of noncompliance by a Bidder under division (f)(3) of Section 187.17 and the Bidder disputes the finding, the City may reject the bid until such dispute is resolved.

(c) CSBs, MBEs, and FBEs must be certified under division (d) of this section. Contractors seeking to use certified CSBs, MBEs, or FBEs shall ensure that all forms and related materials required for certification are submitted to the Director in a timely fashion.

(d) The Administrator may issue a certificate of employment compliance under division (a) of this section, or a certificate for the following:

(1) Bona fide status as CSB, MBE, or FBE; and

(2) Bona fide status as a CSB, MBE, or FBE Joint Venture.

Any certification under this section with regard to a professional service Contractor under a Contract entered into by the Director of Law may be deferred at the discretion of the Director of Law but shall occur prior to making final payment under the Contract.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.08 Good-Faith Effort of Bidders and Contract Provisions

(a) Each Bidder for a Contract shall make a good-faith effort to utilize certified CSBs, MBEs, and FBEs in a percentage that equals or exceeds the applicable goal.

(b) The City and each Contracting Department in soliciting bids and approving, awarding, and administering a Contract exceeding or reasonably anticipated to exceed the Contract amount above which Charter Section 108 requires ordinance authority shall comply with the following requirements:

(1) Each Bid invitation, request for proposals and other solicitation for a Contract shall require each Bidder to complete and submit with its bid or proposal the representations, documentation, and schedules the Director specifies for the Bidder to identify its efforts to utilize CSBs, MBEs, and FBEs in a percentage that equals or exceeds the applicable goal. The Bidder shall keep such records of its efforts as the Director specifies are adequate to permit determination of a successful Bidder’s compliance with this section.

(2) If a bid invitation or request for proposals contains alternates, the percentage of CSB, MBE and FBE participation in the prospective Contract will be computed upon the total dollar amount of the Contract as awarded, including the cost of alternates the Contracting Department recommends for award.

(3) If a Bidder is unable to achieve the goal for CSB utilization or MBE and FBE utilization for a particular Contract, the Bidder may request an exception to the goal under division (a) of Section 187.13.

(4) Prior to execution of a Contract, a Bidder shall submit to the City such additional documents as the Director may specify to identify the particular CSBs, MBEs, FBEs and other subcontractors it will use under the Contract, and to specify the dollar and percentage value of each subcontractor’s participation, the type of work or services to be performed, and such other information as the Director may reasonably require to determine whether the Bidder meets the applicable CSB, MBE, and FBE participation goals.

(c) All Contracts shall require the Contractor to:

(1) Use certified CSBs, MBEs, and FBEs in performing the Contract according to the participation identified in its bid or proposal, subject only to any substitution and waiver granted under division (b) of Section 187.08;

(2) Make a good-faith effort to maintain and increase the use of CSBs, MBEs, and FBEs during performance of the Contract;

(3) Maintain such records as the Director requires that demonstrate compliance with this chapter’s and the Contract’s requirements relating to CSB, MBE, and FBE participation;

(4) Comply with all provisions of this chapter. Any failure of the Contractor or any subcontractor to comply with applicable provisions of this chapter shall constitute a material breach;

(5) Whenever a Contract is amended or modified, any change order is issued, or subsidiary agreement is authorized increasing the total original Contract cost by more than ten percent (10%,) comply with this chapter regarding the work, services, or supplies to be paid for through such amendment, modification, change order, or subsidiary agreement to ensure that it maintains the same percentage of CSB, MBE, and FBE participation identified in its bid or proposal in performing the additional work, services, or supplies.

(d) To be considered lowest and best or lowest responsible, a Bidder shall disclose with its bid or proposal such information as the Director requires in the Regulations to demonstrate the extent to which, in contracts not within the purview of this chapter, the Bidder has awarded subcontracts to CSBs, MBEs, and FBEs.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.09 Contracts with Other Governmental Entities as Contractors

Contracts or other agreements between the City and other political subdivisions, governmental, or quasi-governmental agencies, under which entities receive money from or through the City for the purpose of contracting with Business Enterprises to perform projects in the City, shall encourage Business Enterprises to comply with the provisions of this chapter in awarding, administering, and implementing the contracts.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.10 CSB Joint Ventures

When a certified CSB Joint Venture participates in a Contract, the CSB’s participation value will be measured by first determining the percentage of the CSB’s participation in the CSB Joint Venture, and then multiplying that percentage by the value of the CSB Joint Venture’s participation in the Contract.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.11 MBE/FBE Joint Ventures

Participation of MBEs and FBEs in Joint Ventures is encouraged. When a certified MBE or FBE Joint Venture participates in a Contract to which MBE and or FBE goals apply, the MBE’s or FBE’s participation value will be measured by first determining the percentage of the MBE’s or FBE’s participation in the MBE or FBE Joint Venture, and then multiplying that percentage by the value of the MBE or FBE Joint Venture’s participation in the Contract.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.12 Responsibilities of Contracting Departments

The Commissioner of Purchases and Supplies and each Contracting Department shall:

(a) Endeavor to maximize the participation of CSBs, MBEs, and FBEs in Contracts of fifty thousand dollars ($50,000.00) or less;

(b) Develop lists of CSBs, MBEs, and FBEs experienced in the various types of services, products, or property for which the City typically contracts;

(c) Report to the Director quarterly not later than thirty (30) calendar days after the end of the previous quarter specifying, with respect to Contracts and subcontracts:

(1) The means by which it intends to meet goals established under this chapter in the forthcoming quarter;

(2) The percentage and dollar amount of those Contracts and subcontracts awarded in the previous quarter to CSBs, MBEs, and FBEs;

(3) For each Contracting Department, the degree to which it has met goals set forth in this chapter, any past and current activities undertaken and being undertaken to meet such goals and, if applicable, a detailed explanation of why it has not met the goals; and

(4) Other information as the Director may request; and

(d) Appoint one (1) or more members of each Contracting Department to serve as a liaison between the Contracting Department and the OEO, and to nominate a member of the contracting department or division to serve on the Review and Evaluation Committee provided under Section 187.23.

(Ord. No. 532-13. Passed 5-13-13, eff. 5-16-13)

§ 187.13 Exceptions, Substitutions and Waivers

(a) If a Bidder is unable to meet the goals for a Contract established under division (a) of Section 187.04 for CSBs or division (a) of Section 187.06 for MBEs and FBEs, it may submit a request for exception to the Director prior to bid opening. The request for exception shall include such documentation as the Director specifies in the Regulations that demonstrates the Bidder’s good-faith effort to use CSBs, MBEs, and FBEs to achieve the applicable goal.

(b) If, after a Contract is awarded, a Contractor is unable to utilize a CSB, MBE, or FBE identified in the Contractor’s bid or proposal, it shall make a good- faith effort to identify and propose, and request the Director’s approval of a substitute CSB, MBE, or FBE, respectively, to fulfill its utilization commitment. If, after good-faith effort, the Contractor is unable to find a substitute, it may request the Director to waive its utilization commitment. The request must document, as the Director prescribes in the Regulations, both the Contractor’s good-faith effort to find a substitute and the reasons it is unable to meet the goal.

(c) A Contracting Department may request the Director to waive or reduce the goal for CSB, MBE, and FBE participation in a particular Contract by submitting the reasons for the request in writing prior to soliciting bids or proposals.

(1) The Director may grant a waiver or reduction upon determination that:

A. The reasonable and necessary requirements of the Contract preclude subcontracting or participation of Business Enterprises other than the Bidder or proposer; or

B. Based upon documentation submitted to the Director, sufficient CSBs, MBEs, and/or FBEs, certified, qualified and capable of providing the goods or services the Contract requires are unavailable despite every practicable attempt to locate and utilize them.

(2) In any grant of a goal reduction, the Director shall specify the percentage to which the goal is reduced.

(3) Whenever the Director denies a request to waive or reduce a goal, the Contracting Department may appeal that denial to the Mayor whose decision on the request shall be final.

(d) A Contracting Department may waive or reduce the goal established under division (a) of Section 187.04 for CSBs or division (a) of Section 187.06 for MBEs and FBEs for a particular Contract under the following circumstances:

(1) Whenever the director of a Contracting Department finds, with the advice of the Director, that the goods or services are available only from a sole source, and the prospective Contractor is not currently disqualified from doing business with the City; and

(2) If the director of a Contracting Department certifies in writing to the Director that:

A. An emergency exists which requires goods or services to be provided with such immediacy that it is impracticable to comply with the requirements of this chapter; and

B. The prospective Contractor is a CSB, MBE, or FBE, or if not, that the prospective Contractor will make a good-faith effort to subcontract to CSBs, MBEs, and FBEs, as applicable, should subcontracting opportunities exist.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.14 Small Contract Rotation Program

(a) Provided that a disparity study or otherwise establishes a legally sufficient basis to employ a Small Contract Rotation Program as a remedy for past or present discrimination under Section 187.28, the Director shall establish a Small Contract Rotation Program for MBEs and FBEs, including procedures, applicable to the categories of construction, professional services and purchase contracts where the cost of the Contract is anticipated to be under fifty thousand dollars ($50,000.00). The purposes of the Small Contract Rotation Program are to increase contract opportunities for categories of MBEs and FBEs, that have been underutilized at a statistically significant level in Contracts under fifty thousand dollars ($50,000.00), to provide an orderly and efficient method of awarding purchases and work, and to equitably distribute purchases and work among qualified Contractors.

(b) Under the Small Contract Rotation Program, the City shall limit every second contract to be let by the City for each type of contract, within a category where MBEs and FBEs are underutilized at a statistically significant level, to competition among certified MBEs and FBEs who submit an application in a form acceptable to the Director. The Director shall compile an approved list comprised of not less than two (2) certified MBEs and FBEs for each industry and, as needed, compile specialized lists within industries. The eligible businesses shall be alphabetically ranked on each list and, for a thirty (30) day period commencing on January 1st and June 1st of each year, the Director shall hold open enrollment for applicants. The lists of prequalified vendors shall be made available to the public. The Commissioner of Purchases and Supplies shall solicit bids or proposals from all MBEs or FBEs on the list for each contract to be entered into under the Small Contract Rotation Program. When only one (1) qualified vendor is on the list, the Commissioner of Purchases and Supplies may purchase directly from that firm by direct negotiation of the purchase price.

(Ord. No. 532-13. Passed 5-13-13, eff. 5-16-13)

§ 187.15 Employment; Nondiscrimination; Goals of Contractors

(a) No Contractor shall Discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, national origin, age, Disability, ethnic group or Vietnam-era or disabled veteran status. Contractors shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to race, religion, color, sex, sexual orientation, national origin, age, Disability, ethnic group or Vietnam-era or disabled veteran status. As used in this chapter, “treated” means and includes without limitation the following: recruited whether by advertising or other means; compensated, whether in the form of rates of pay or other forms of compensation; selected for training, including apprenticeship, promoted, upgraded, demoted, transferred, laid off and terminated. Contractors shall post in conspicuous places available to employees and applicants for employment, notices to be provided by the hiring representative of contractors setting forth the provisions of this nondiscrimination clause.

(b) Within sixty (60) days after entering into a Contract, each Contractor shall have filed with the Director a written affirmative action program, approved by the Administrator, containing standards and procedures ensuring that the Contractor, by specified affirmative actions with regard to its employees, facilities and performance of the Contract, affords all qualified employees and applicants for employment equal opportunities in the Contractor’s recruitment, selection, and advancement processes.

(c) Each Contractor’s affirmative action program shall contain the following components:

(1) A diagnostic component that includes quantitative analyses comparing the composition of the Contractor’s workforce to the composition of the Cleveland Contracting Market employment pool according to the most current census data available, grouped by EEO occupations.

(2) Each affirmative action program shall contain placement goals as follows:

A. For each non-construction Contract, placement goals equal to the availability percentage for women or minorities where the percentage of women or minorities employed by the Contractor in a particular job group is less than would reasonably be expected given their percentage availabilities in the corresponding Cleveland Contracting Market employment pool. Placement goals are objective targets reasonably attainable by applying a good-faith effort to implement all aspects of the affirmative action program; they are not inflexible quotas. Placement goals do not authorize or require a Contractor to grant a preference to any individual or adversely affect an individual’s employment status for an unlawful discriminatory reason.

B. For each construction Contract, establish placement goals for minorities and women for each trade involved in the performance of the Contract equal to the goals established by the Director. Placement goals are objective targets reasonably attainable by applying a good-faith effort to implement all aspects of the affirmative action program; they are not inflexible quotas. Placement goals do not authorize or require a Contractor to grant a preference to any individual or adversely affect an individual’s employment status for an unlawful Discriminatory reason.

(3) Identification of problem areas through analysis of the Contractor’s employment process to determine if it affords or incorporates, or contains impediments to, equal employment opportunities.

(4) Action-oriented programs consisting of practical steps the Contractor will implement to address any identified problem areas or the underutilization of women or minorities in relation to their availability in the relevant labor pool.

(5) Internal auditing and reporting systems that monitor and examine the impact the Contractor’s employment decisions and compensation systems have on women and minorities and their progress toward achieving a workforce that would be expected in the absence of discrimination.

(6) Policies, practices, and procedures that the Contractor will implement to ensure that all qualified applicants and employees enjoy equal opportunity in recruitment, selection, advancement, and every other term and privilege associated with employment.

(7) Any additional requirements the Administrator may require through the Regulations or on a case-by-case review of a Contractor’s proposed affirmative action program.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.16 Compliance with Employment Goals

(a) Each Contractor shall be eligible for a certificate of employment compliance required under Section 187.07 when the Administrator, from the required submittals and other information supplied by the Contractor, determines that the Contractor is complying with this Code and the Regulations.

(b) Each Contractor shall submit to the Administrator and implement a written affirmative action program containing the components required under division (c) of Section 187.15. When the Administrator is satisfied that the Contractor has complied with the Code and its regulations, the Administrator shall issue a written “certificate of employment compliance.”

(c) Immediately upon a finding that sixty (60) days after entering into a Contract, a Contractor has no affirmative action program, has deviated substantially from an approved affirmative action program, or has Discriminated against any employee or applicant for employment because of race, religion, color, sex, sexual

orientation, national origin, age, Disability, ethnic group or Vietnam-era or disabled veteran status, the Administrator shall proceed according to division (f) of Section 187.17. Anything in the foregoing to the contrary notwithstanding, the Director shall not impose sanctions or remedial action against a Contractor solely because the Contractor fails to achieve the established placement goals.

(d) By notice in writing to the Director and the Clerk of Council, the Mayor may waive compliance with the employment goals established under division (c) of Section 187.15 with respect to a specific Contractor seeking the award of a specific Contract when, in the Mayor’s sole judgment, the action is necessary in the best interests of the City and its citizens.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.17 Compliance Monitoring

(a) The Director shall monitor a Contractor’s compliance with the requirements of this chapter during the term of a Contract. If the Director determines that there is cause to believe that a Contractor or a subcontractor has failed to comply with any applicable requirements of this chapter or the Contract provisions pertaining to CSB, MBE, or FBE participation, the Administrator shall notify the Contractor as provided in division (f) of this section. The provisions of divisions (f), (g) and (h) of this section, Section 187.18, and Section 187.20 shall apply to the review and appeal of this determination by an Administrator.

(b) The Director and the Administrator may require such reports, information and documentation from Contractors, Bidders, Contracting Departments, and the head of any City department, division, or office, as reasonably necessary to determine compliance with requirements of this chapter and any Contract provisions regarding CSB, MBE, and FBE participation, as applicable.

(c) Contracting Departments shall maintain accurate records for each Contract awarded, including dollar value, the nature of the goods and services to be provided, the name of the Contractor, the efforts it employed to solicit bids from CSBs, MBEs, and FBEs, and all subcontracts awarded by the Contractor, including dollar value, the nature of the goods or services provided, and the name of each subcontractor.

(d) If the Administrator finds that a Contractor is not in compliance with the applicable provisions of this Code or is in default with respect to any representation made by the Contractor regarding applicable provisions of this Code and upon which a certificate or approval was awarded, then the Administrator may rescind or withdraw the relevant certificate or approval prior to its expiration. All certificates must be renewed on forms provided by the OEO.

(e) Any person having knowledge of facts tending to show that a Contractor has obtained or is seeking certification or approval by false or inaccurate representations to the OEO may initiate the administrative procedures set forth in this section, Section 187.18 and Section 187.20. For purposes of these sections, each Contractor must maintain its current address(es) and those of its subcontractors with the Administrator; the City’s mailing of any notice to a Contractor by regular mail to the filed address shall constitute the required notice.

(f) If the Administrator has reason to believe that a Contractor is in default with respect to any representation by the Contractor regarding applicable provisions of this Code and its regulations, and on which a certification or Contract was awarded, the Administrator shall:

(1) Send the Contractor written notice by certified mail or personal delivery of any apparent noncompliance with applicable terms of the Code;

(2) Give the Contractor ten (10) days from receipt of the notice, or other specified reasonable

opportunity to submit records or offer other information in support of its continued certification and compliance with the provisions of the Code. The Administrator may consider the Contractor’s failure to submit records or other information timely, or promptly when requested by the Administrator, as agreement to the conditions and circumstances of the noncompliance specified in the Administrator’s notice to the Contractor; and

(3) If, after reviewing the information submitted under division (f)(2) of this section, the Administrator determines that the Contractor is not in compliance with the Code, then the Administrator shall issue a written finding of noncompliance or default, stating the basis for that finding and notifying the Contractor of its right to object to the finding.

(g) Any Contractor taking exception to a finding of the Administrator may attempt to reconcile the differences through informal methods of conciliation and persuasion and/or file a written objection by an appeal, with reasons for the objection, to the Administrator by certified mail within ten (10) days after receipt of the Administrator’s written finding. The Administrator may recommend a settlement agreement regarding the finding. If a written objection is filed, the Administrator shall forward the objection to the Director within five (5) days of its receipt, along with all materials relating to the determination which is being appealed, together with any recommendations of appropriate remedial action. The provisions of Section 187.18 will then apply.

(h) If the Administrator finds a Contractor is in default with respect to any representation by the Contractor regarding applicable provisions of this Code and the Regulations on which a certificate was issued or a Contract was awarded, and if the Contractor fails to attempt reconciliation under division (g) of this section within ten (10) days after mailing of the written finding, the Administrator shall forthwith forward his or her findings to the Director along with a recommendation of appropriate remedial action to be taken or sanctions to be imposed. The Director shall then, based solely on the findings of the Administrator, decide whether or not noncompliance exists and shall take such actions set forth in division (a) of Section 187.20 as the Director determines, applicable, appropriate, and consistent with the decision.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.18 Hearing Procedure

If the Contractor files a timely objection, as provided in division (g) of Section 187.17, to a written finding by the Administrator, the Director shall hold a hearing on the matter of the objection. The hearing shall be held not less than five (5) days nor more than ten (10) days from the filing, unless the Contractor and the Director otherwise mutually agree. The Director shall send notice of the date, time, and place for hearing by mail to all interested parties. The Contractor shall have the right to record the proceedings of the hearing at the sole expense of the Contractor.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.19 Subpoena Power

(a) In any investigation relating to compliance by Contractors or Business Enterprises with this Code, the Regulations and any Contract provisions concerning CSB, MBE, or FBE participation, or in any hearing held under Section 187.18 relating to a Contractor’s compliance with the City’s requirements, the Administrator or the Director may issue in writing and cause to be served a subpoena requiring the following:

(1) The production of any records or other things relevant to the investigation; and

(2) Relevant testimony.

(b) Any subpoena issued under division (a) of this section is subject to the same limitations as would apply if the subpoenas were issued or served in aid of a civil action in a court of common pleas.

(c) In case of refusal to obey a subpoena issued by the Administrator or the Director, the Director of Law may petition for its enforcement in the court of common pleas in the county in which the Person to whom the subpoena was addressed resides, was served, or transacts business.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.20 Decision and Available Sanctions for Noncompliance

(a) Within five (5) business days after the hearing required by Section 187.18, the Director shall issue and send by certified mail to the Contractor, findings of fact and a determination of compliance or noncompliance with the Code, the Regulations, or any Contract provisions concerning CSB, MBE, or FBE participation. If the Director determines that the Contractor is in compliance with the applicable provisions of the Code, the Director shall issue an appropriate certificate. If the Director determines that the Contractor is in default with respect to any representation upon which it was awarded a certificate or contract or that the Contractor is not in compliance with the applicable provisions of the Code, the Regulations and any Contract provisions concerning CSB, MBE, or FBE participation, the Director, in addition to other remedies available with respect to the foregoing and other defaults under any Contract in question, may take any of the following actions:

(1) Cancel any existing certificate of employment compliance or withhold issuance of a certificate of employment compliance until the Contractor cures the default or complies fully with the applicable provisions of the Code, the Regulations, and any Contract provisions concerning CSB, MBE, or FBE participation;

(2) Recommend that the City withhold all or part of any payments due the Contractor until such time as the Contractor cures the default or is in full compliance with the applicable provisions of the Code, its Regulations and any Contract provisions concerning CSB, MBE, or FBE participation;

(3) Recommend that the City cancel the Contract and declare a forfeiture of any performance bond;

(4) Recommend that the Director of Law take such legal action, whether civil or criminal, as he or she deems appropriate;

(5) Recommend rescission of the Contract based upon a material breach of the Contract pertaining to CSB, MBE, or FBE participation;

(6) Recommend disqualification of a Bidder, Contractor, or other Business Enterprise from eligibility for providing goods or services to the City for a period not to exceed two (2) years; or

(7) Recommend a claim for payment of damages, including any liquidated damages specified in the Contract.

(b) Notwithstanding any other provision of this section, if the Director determines after an investigative hearing that the City has contracted with a Front Organization and/or that a Contractor has

participated with a CSB, FBE, or MBE Contractor in activities that would create a Front Organization, then the Director shall:

(1) Decertify the Contractor and/or Front Organization;

(2) Not permit the Contractor and/or Front Organization to be certified for a period of not less than one (1) year after a final determination; and

(3) Refer the matter to the City Prosecutor’s office for appropriate action.

(c) A decision of the Director under this section is final and may be appealed to the Board of Zoning Appeals by filing a notice of appeal with the Board and a copy to the Director within fifteen (15) days of the decision. The Board of Zoning Appeals shall, after a hearing, determine whether the decision of the Director is arbitrary, capricious, or unreasonable. The decision of the Board of Zoning Appeals, in turn, may be reviewed by the Common Pleas Court of Cuyahoga County under RC Chapter 2506, or as otherwise provided by law.

(Ord. No. 1056-10. Passed 10-25-10, eff. 10-28-10)

§ 187.21 Notices Required in Advertisement for Bids

(a) If the Director is unable to demonstrate a legally sufficient basis in evidence of past or present discrimination against MBEs and FBEs as provided in Section 187.28, the Director shall cause the following notice to be included in advertisements for invitations to bid and in requests for proposals: “Under the Cleveland Area Business code, each Business Enterprise seeking to do business with the City as a Cleveland Area Small Business (“CSB”) must first be certified by the City’s OEO before it may contract with the City as a CSB. Therefore, if CSB status has not been previously obtained, any prime Contractor wishing to receive credit for making a good-faith effort to use a CSB shall ensure that applications for certification as to CSB status, compliance with the Code, employment compliance and, if applicable, joint venture status, are submitted to the City’s OEO prior to the date of bid opening or submission of proposals or as specified by regulations. Failure to comply with the Cleveland Area Business Code or with representations made on these forms may result in denial or cancellation of the contract or other civil or criminal penalties.”

(b) If the Director is able to demonstrate a legally sufficient basis in evidence of past or present discrimination against MBEs and FBEs as provided in Section 187.28, the Director shall cause the following notice to be included in advertisements for invitations to bid and in requests for proposals: “Under the Cleveland Area Business Code, each Business Enterprise seeking to do business with the City as a Cleveland Area Small Business, Minority Business Enterprise (“MBE”) and/or Female Business Enterprise (“FBE”) first must be certified by the City’s Office of Equal Opportunity before contracting as a CSB, MBE, or FBE. Therefore, any prime Contractor wishing to receive credit for making a good-faith effort to use a CSB, MBE, and/or FBE shall submit applications for certification as to CSB, MBE, and/or FBE status, compliance with the Code, affirmative action in employment and, if applicable, joint venture status, to the City’s Office of Equal Opportunity prior to the date of bid opening or submission of proposals or as specified by regulations. Failure to comply with the Cleveland Area Business Code or with representations made on these forms may result in denial or cancellation of the contract or other civil or criminal penalties.”

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.22 Equal Opportunity Clause; Terms in Contracts

(a) Contracting Departments shall include the notice(s) set forth in Section 187.21 and the requirements set forth in division (c) of Section 187.08 in all specifications for contracts. The Director shall consider satisfaction of the duties and agreements set forth in the notice(s) in determining whether a Contractor is in compliance with this Code.

(b) Each Contract also shall contain the following equal opportunity clause:

“During the performance of this contract, the contractor agrees as follows:

(1) The contractor shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, gender identity or expression, national origin, age, disability, ethnic group or Vietnam-era or disabled veteran status. The contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to race, religion, color, sex, sexual orientation, gender identity or expression, national origin, age, disability, ethnic group, or Vietnam-era or disabled veteran status. As used in this chapter, “treated” means and includes without limitation the following: recruited, whether by advertising or other means; compensated, whether in the form of rates of pay or other forms of compensation; selected for training, including apprenticeship, promoted, upgraded, demoted, downgraded, transferred, laid off and terminated. The contractor agrees to and shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the hiring representatives of the contractor setting forth the provisions of this nondiscrimination clause.

(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that the contractor is an equal opportunity employer.

(3) The contractor shall send to each labor union or representative of workers with which he or she has a collective bargaining agreement or other contract, or understanding, a notice advising the labor union or worker’s representative of the contractor’s commitments under the equal opportunity clause, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(4) It is the policy of the City that local businesses, minority-owned businesses and female- owned businesses shall have every practicable opportunity to participate in the performance of contracts awarded by the City subject to the applicable provisions of the Cleveland Area Business Code.

(5) The contractor shall permit access by the Director or his or her designated representative to any relevant and pertinent reports and documents to verify compliance with the Cleveland Area Business Code, and with the Regulations. All such materials provided to the Director or designee by the contractor shall be considered confidential.

(6) The contractor will not obstruct or hinder the Director or designee in the fulfillment of the duties and responsibilities imposed by the Cleveland Area Business Code.

(7) The contractor agrees that each subcontract will include this Equal Opportunity Clause, and the contractor will notify each subcontractor, material supplier and supplier that the subcontractor must agree to comply with and be subject to all applicable provisions of the Cleveland Area Business Code. The contractor shall take any appropriate action with respect to any subcontractor as a means of enforcing the provisions of the Code.”

(Ord. No. 1260-08. Passed 11-30-09, eff. 12-3-09)

§ 187.23 Review and Evaluation Committee

The Director shall serve as chairperson of a Review and Evaluation Committee comprised of at least one (1) member from each Contracting Department, one (1) liaison from the Division of Purchases and Supplies, and one (1) member of Council or its representative nominated by the President of Council. Except for the member nominated by the President of Council, the members may be appointed by the Mayor from among nominees presented to him or her by the Contracting Departments and shall serve at the discretion of the Mayor. The Committee shall meet as is necessary to fulfill the following responsibilities:

(a) Review and monitor each Contracting Department’s performance under the Cleveland Area Business Program;

(b) Assist the Director in preparing annual reports to the Mayor on the progress of the Cleveland Area Business Program;

(c) Recommend changes in the regulations promulgated under this Code;

(d) Assist, as appropriate, in the implementation of this Code;

(e) Prepare, review and make recommendations concerning the directory of certified CSBs, MBEs and FBEs;

(f) Assist in preparing a Business Enterprise monthly awards report; and

(g) Carry out such other oversight or coordination functions as may be requested by the Director.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.24 Reports

(a) If a construction contract is estimated to take more than ninety (90) days to complete or calls for the City to expend five hundred thousand dollars ($500,000.00) or more, each Contractor and subcontractor shall submit project site reports to the Administrator which shall contain such information as the Administrator may require. Reports shall be submitted to the Administrator at least every ninety (90) days, or as sooner requested by the Administrator;

(b) Failure to submit any required report constitutes a violation of this Code for which sanctions may be imposed under this chapter.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.25 Violations; Disqualification; Penalty

(a) No Person shall:

(1) Willfully obstruct, impede, or attempt to obstruct or impede any authorized official or employee who is investigating the qualifications of a Business Enterprise that has requested certification as a CSB, MBE, or FBE;

(2) Fraudulently obtain, retain, attempt to obtain or retain, or aid another in fraudulently obtaining or retaining, or attempting to obtain or retain certification as a CSB, MBE, or FBE for purposes of this

chapter;

(3) Falsely state to any Person that any other is or is not certified as a CSB, MBE, or FBE for purposes of this chapter;

(4) Willfully falsify, conceal or cover up by a trick, scheme, or device a material fact, or make any false, fictitious, or fraudulent statements or representations or make use of any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry in any matter administered under this chapter; or

(5) Fraudulently obtain, attempt to obtain, or aid another Person fraudulently obtaining or attempting to obtain, public monies to which the Person is not entitled under this chapter.

(b) Any Person who violates the provisions of this section is guilty of a misdemeanor of the first degree.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.26 Training Courses and Development Activities

(a) The Director is authorized to conduct the James H. Walker Construction Management Training Course up to twice annually, to conduct other training and facilitate and coordinate development activities authorized by and consistent with Section 123.08, and to fix and collect registration fees from training seminar or development activity participants.

(b) The Director is authorized to make purchases and enter into one (1) or more agreements under the Charter and relevant Codified Ordinances for training and development materials, supplies, refreshments, graduation dinners, and, if necessary, rental of a site for a course or activity.

(c) The Director shall deposit the registration fees collected from participants in the training courses or development activities into OEO’s Educational Program Account. All expenditures made under this section shall be paid from registration fees collected, which are appropriated for these purposes, and from funds appropriated for the use of the OEO.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.27 Severability

Each section and each part of each section of this Cleveland Area Business Code is an independent section or part of a section, and notwithstanding any other evidence of legislative intent, it is the controlling legislative intent that if any section or part of a section or any provision, or the application of it to any person or circumstances, is held invalid, the remaining sections or parts of sections and the application of the provision to any other person or circumstances, other than those as to which it is held invalid, shall not be affected. It is further the legislative intent that the other provisions of this Code would have been adopted independently of the section or parts of a section which are held invalid.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.28 Applicability of this Code to MBEs and FBEs

When the City has developed or obtained, by disparity study or otherwise, a legally sufficient basis in evidence to demonstrate past or present discrimination as to participation of MBEs, or FBEs in specific types and categories of Contracts and contracting, the City may, as remedial action with respect to the discrimination to the extent necessary, apply the provisions of this Chapter 187 pertaining to the use of MBEs and FBEs in Contracts as specified in the evidence.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

§ 187.29 Professional Consultants

The Director is authorized to employ by contract or contracts professional consultants for the purpose of supplementing the regularly employed staff of the City of Cleveland in order to provide professional services necessary to develop or obtain a disparity study or other documentation to determine whether there exists a legally sufficient basis in evidence to demonstrate past or present discrimination as to participation of MBEs or FBEs in specific types and categories of Contracts. The selection of the consultants shall be made by the Board of Control on the nomination of the Director. The compensation to be paid for the services shall be fixed by the Board of Control and shall be paid from the fund or funds deemed appropriate by the Director of Finance and that are appropriated for this purpose.

(Ord. No. 77-08. Passed 2-4-08, eff. 3-15-08)

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