06-O-48
ORDINANCE
Sponsored
by
THE
HONORABLE BOBBIE L. STEELE, PRESIDENT AND ROBERTO MALDONADO
Minority-
and Women- Owned Business
Construction
Interim Ordinance
WHEREAS, in 1988, Cook County (“County”) adopted the Minority- and
Women- Owned Business Enterprises Ordinance establishing an affirmative action
program to ensure the full and equitable participation of minority and female
owned businesses in the County’s procurement process as both prime Contractors
and subcontractors; and
WHEREAS, in 1993, Cook County amended the Minority- and Women-
Owned Business Enterprises Ordinance to include specific minority and women
participation goals in construction contracts; and
WHEREAS, the affirmative action program for construction projects
set goals of 30% minority owned participation and 10% women owned participation
on all County construction projects in order to remedy ongoing discrimination
and the effects of past discrimination against women and members of minority
groups, so as not to be a passive participant in such discrimination; and
WHEREAS, this program as it relates to construction projects was
declared unconstitutional in Builders
Association of Greater Chicago v. Cook County, 123 F.Supp.2d 1087 (N.D.
Ill. 2000), and a permanent injunction
was entered against the program preventing the County from setting minority and
women participation goals in County construction projects; and
WHEREAS, the district court’s holding was affirmed in Builders Association of Greater Chicago v.
Cook County, 256 F.3d 672 (7th Cir.
2001); and
WHEREAS, the County complied with the permanent injunction and
ceased setting Minority Business Enterprise (“MBE”) and Women Business
Enterprise (“WBE”) goals on County construction projects in early 2001, causing
an immediate and drastic reduction in M/WBE construction prime contract and
subcontract participation; and
WHEREAS, in 2005, the County commissioned a review of the
utilization of Minority- and Women- Owned Business Enterprises (“M/WBE”) in its
construction contracts since the injunction; and
WHEREAS, the results of this review were presented to the County in
a July 2006 Report titled, ”Review of Compelling Evidence of Discrimination
Against Minority-and Women-Owned Business Enterprise in the Chicago Area
Construction Industry and Recommendations for Narrowly tailored Remedies for
Cook County, Illinois” (“Report”); and
WHEREAS, the Report concluded that there is extensive evidence of
discrimination against Minority-and Women-Owned Business Enterprises in the
Chicago area Construction marketplace, and the participation of Minority- and
Women- Owned Business Enterprises in the County’s construction prime contracts
and subcontracts is below the availability of such firms; and
WHEREAS, the Report recommended, among other initiatives, the
establishment of an interim ordinance to remedy the underutilization of
Minority- and Women- Owned Business Enterprises in the County’s construction
contracts and ensure that the County is not passively participating in
discrimination against Minority- and Women- Owned Business Enterprises in the
Chicago area construction marketplace; and
WHEREAS, in the absence of interim affirmative action remedies, the
County has determined that it is such a passive participant in such
discrimination; and
WHEREAS,
WHEREAS, Cook County is a home rule unit of government as defined in
Article VII, Section 6(a) of the Illinois Constitution; and
WHEREAS, as a home rule unit of government,
WHEREAS, the expenditure of its funds
for construction projects is a matter pertaining to the government and affairs
of
NOW, THEREFORE, BE IT
ORDAINED, by the Cook County Board of Commissioners that Chapter 34,
Article IV, Div. 6, Sec. 34-286 through 34-303 of the Cook County Code is
hereby enacted as follows:
34-286 Title.
34-287 Recitals.
34-288 Findings of Discrimination.
34-289 Public Purpose.
34-290 Applicability.
34-291 Severability.
34-292 Definitions.
34-293 Program Administration.
34-294 Race- and
Gender- Neutral Measures to Ensure Equal Opportunities for all Contractors and
Subcontractors.
34-295 Program Eligibility.
34-296 Annual Aspirational
Goals.
34-297 Project Specific Goals.
34-298 Counting MBE and WBE Participation.
34-299 Contract Pre-Award Compliance
Procedures.
34-300 Contract Administration Procedures.
34-301 Sanctions and Penalties.
34-302 Interim Program Review and Sunset.
34-303 Effective Date.
Section 34-286. Title. This Ordinance shall be known as the
Minority- and Women- Owned Business Enterprise Construction Interim Ordinance
and may be cited as such.
Section 34-287. Recitals. The
President and the Board of Commissioners of the
Section 34-288. Findings of Discrimination. The President and
the Board of Commissioners of the County of Cook, after considering (i) evidence presented at trial in Builders Association of Greater Chicago v.
City of Chicago, 298 F.Supp.2d 725 (N.D. Ill. 2003) and Northern Contracting, Inc. v. Illinois
Department of Transportation, 2005
U.S. Dist. LEXIS 19868 (N.D. Ill. Sept. 8, 2005); (ii) County statistical
evidence of continuing discrimination against Blacks, Hispanics, Asians and
women in the County’s contracting awards; (iii) the Report title, “Review of
Compelling Evidence of Discrimination Against Minority-and Women-Owned Business
Enterprise in the Chicago Area Construction Industry and Recommendations for
Narrowly Tailored Remedies for Cook County, Illinois;” as well as (iv)
anecdotal evidence of discrimination against minorities and women in the
County’s construction marketplace; and (v) receiving and considering written
reports, adopts the following findings as a strong basis in evidence supporting
a narrowly tailored, remedial affirmative action program in County construction
contracting:
(a)
The
(b)
Since the County’s affirmative action program as it
relates to construction projects was declared unconstitutional in 2000, the
County has witnessed a drastic reduction in M/WBE construction prime contract
and subcontract participation;
(c)
The County has engaged in committee hearings in which
the County has heard anecdotal evidence of discrimination in the construction
industry, has commissioned a study on the levels of M/WBE participation in
County contracts, has reviewed the Report prepared indicating evidence of
discrimination in County construction contracts and has considered the evidence
in relevant case law;
(d)
In the absence of M/WBE participation goals the County
has witnessed a drastic decline in M/WBE participation in its construction
contract below the availability of such firms and thus would be a passive
participant in a discriminatory marketplace without the use of such M/WBE
goals;
(e)
The County has a compelling interest in preventing
discrimination; and
(f)
The County desires to reaffirm its commitment to
full and fair opportunities for all firms to participate in its construction
contracts.
Section 34-289. Public Purpose. It is hereby found,
determined and declared that the purpose of this Interim Ordinance is to take
steps to ensure the full and equitable participation of Minority- and Women-
Owned Business Enterprises in the County’s procurement process as both prime
and subcontractors in the County’s construction contracts. The County is committed to a policy of
preventing discrimination in the award of or participation in construction
contracts and has recommended appropriate affirmative action steps to be taken
to eliminate any such discrimination.
Section 34-290. Applicability. This Ordinance shall apply to
all construction contracts funded in whole or in part by County funds,
regardless of the sources of other funds; provided that any contract with
respect to which a goal for Minority-Owned Business Enterprise or Women-Owned
Business Enterprise participation is inconsistent with or prohibited by state
or federal law shall be exempt from the goals included in this Ordinance.
Section 34-291. Severability. If any section, subsection, clause or
provision of this Ordinance is held to be invalid by a court of competent
jurisdiction, the remainder of the Ordinance shall not be affected by such
invalidity.
Section 34-292. Definitions. The following
terms shall have the following meanings:
Affiliate
of a person or entity means a person or entity that directly or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, the person or entity.
In determining Affiliation, the County shall consider all appropriate factors,
including common ownership, common management, and contractual relationships.
Annual Participation Goals mean the targeted levels established by the
County for the annual aggregate participation of MBEs
and WBEs in County construction contracts.
Certified Firm means a
firm that has been accepted by the County as a certified MBE or WBE.
County
means the
County’s Marketplace means the Metropolitan Statistical Area for
Contractor means any person or business
entity that seeks to enter into a construction contract with the County, other
than professional services, and includes all partners, Affiliates and Joint
Ventures of such person or entity.
Commercially Useful Function means
responsibility for the execution of
a distinct element of the work of the contract, which is carried out by
actually performing, managing, and supervising the work involved, or fulfilling
responsibilities as a Joint Venture partner.
Director means the
Director of the Office of Contract Compliance.
Economically Disadvantaged means an individual with a Personal Net
Worth less than $2,000,000.00 indexed annually for the Chicago Metro Area
Consumer Price Index, published by the U.S. Department of Labor, Bureau of
Labor Standards, beginning January 2007.
Good
Faith Efforts means actions
undertaken by a Contractor to achieve a MBE or WBE goal, which, by their scope,
intensity, and appropriateness to the objective, can reasonably be expected to
fulfill the Program’s goals.
Joint
Venture means an association of two or more persons, or any combination of
types of business enterprises and persons numbering two or more, proposing to
perform a single for profit business enterprise, in which each Join Venture
partner contributes property, capital, efforts, skill and knowledge, and in
which the Certified Firm is responsible for a distinct, clearly defined portion
of the work of the contract and whose share in the capital contribution,
control, management, risks, and profits of the Joint Venture are equal to its
ownership interest. Joint Ventures must
have an agreement in writing specifying the terms and conditions of the
relationships between the partners and their relationship and responsibility to
the contract.
Local
Business means a business entity located within the County’s Marketplace
which has the majority of its regular, full time work force located within the County’s
Marketplace.
Manufacturer
means a firm that operates or maintains a factory or establishment that
produces, on the premises, the materials, supplies, articles, or equipment
required under the contract and of the general character described by the
specifications.
Minority Business
(1) Which is at least 51% owned by one or more
Minority Individuals, or in the case of a publicly owned business, at least 51%
of all classes of the stock of which is owned by one or more Minority
Individuals;
(2) Whose management, policies, major decisions
and daily business operations are independently managed and controlled by one
or more such more Minority Individuals;
(3) Which
performs a Commercially Useful Function;
(4) Which
is a Certified Firm; and
(5) Which
is a Small Business Enterprise.
Minority
Individual means a person:
(1)
African-Americans or Blacks, which includes persons having origins in any of
the Black racial groups of
(2)
Hispanic-Americans, which includes persons of Mexican, Puerto Rican, Cuban,
Caribbean, Dominican, Central or South American, or other Spanish or Portuguese
culture or origin, regardless of race;
(3)
Native-Americans, which includes persons who are American Indians, Eskimos,
Aleuts, or Native Hawaiians; or
(4)
Asian-Americans (persons whose origins are in any of the original peoples of
the Far East, Southeast Asia, the islands of the Pacific or the Northern
Marianas, or the Indian Subcontinent); or
(5)
Individual members of other groups, including but not limited to
Arab-Americans, found by the County to be socially disadvantaged by having
suffered racial or ethnic prejudice or cultural bias within American society,
without regard to individual qualities, resulting in decreased opportunities to
compete in the County’s marketplace or to do business with the County.
Owned means having all of the customary
incidents of ownership, including the right of disposition, and sharing in all
of the risks, responsibilities and profits commensurate with the degree of
ownership.
Personal Net Worth means the net value of the assets of an
individual after total liabilities are deducted. An individual’s personal net worth does not
include the individual’s ownership interest in an applicant or other County
certified MBE or WBE, provided that the other firm is certified by a
governmental agency that meets the County’s eligibility criteria or the
individual’s equity in his or her primary place or residence. As to assets held jointly with his or her
spouse, an individual’s personal net worth includes only that individual’s
share of such assets. An individual’s
net worth also includes the present value of the individual’s interest in any
vested pension plans, individual retirement accounts, or other retirement
savings or investment programs less the tax and interest penalties that would
be imposed if the asset were distributed at the present time.
Program means the Interim Program established by the Minority- and
Women- Owned Business Enterprise Interim Ordinance.
Project
Specific Goals means the Goals established for a particular project or
contract based upon the availability of MBEs or WBEs in the scopes of work of the
Project.
Regular
Dealer means a firm that owns, operates, or maintains a store, warehouse,
or other establishment in which the materials, supplies, articles or equipment
of the general character described by the specifications and required under the
contract are bought, kept in stock, and regularly sold or leased to the public
in the usual course of business. To be a
Regular Dealer, the firm must be an established, regular business that engages,
as its principal business and under its own name, in the purchase and sale or
lease of the products in question. A
firm may be a Regular Dealer in such bulk items as petroleum products, steel,
cement, gravel, stone, or asphalt without owning, operating, or maintaining a
place of business if the firm both owns and operates distribution equipment for
the products. Any supplementing of a
Regular Dealer's distribution equipment shall be by a long-term lease agreement
and not on an ad hoc or
contract-by-contract basis. Packagers,
manufacture representatives, or other persons who arrange or expedite
transactions are not Regular Dealers.
Small Business means a small business as
defined by the U.S. Small Business Administration, pursuant to the business
size standards found in 13 CFR Part 121, relevant to the scope(s) of work the
firm seeks to perform on County contracts.
A firm is not an eligible small business enterprise in any calendar
fiscal year in which its gross receipts, averaged over the firm’s previous five
fiscal years, exceed the size standards of 13 CFR Part 121.
Socially Disadvantaged means a Minority Individual or Woman who has
been subjected to racial, ethnic or gender prejudice or cultural bias within
American society because of his or her identity as a member of a group and
without regard to individual qualities.
Social disadvantage must stem from circumstances beyond the individual's
control. A Socially Disadvantaged individual must be a citizen or lawfully
admitted permanent resident of the
Utilization Plan means the list of MBEs and WBEs that the Bidder/Proposer commits will be utilized, the scopes of the work
and the dollar values or the percentages of the work to be performed.
Woman means a person of the female gender.
Woman-Owned Business Enterprise (WBE) means a Local Small Business,
including a sole proprietorship, partnership, corporation, limited liability
company, Joint Venture or any other business or professional entity:
(1) Which is at least 51% owned by one or more
Women, or in the case of a publicly owned business, at least 51% of all classes
of the stock of which is owned by one or more Women;
(2) Whose management, policies, major decisions
and daily business operations are independently managed and controlled by one
or more such Women;
(3) Which performs a Commercially Useful Function;
(4) Which is a Certified Firm; and
(5) Which is a Small Business Enterprise.
Section 34-293. Program administration.
(a) The Office of the
Contract Compliance, which shall report to the President of the Board of Commissioners
of Cook County, shall administer the Program, which duties shall include:
(1)
Formulating, proposing and implementing rules and regulations for the
development, implementation and monitoring of the Program.
(2)
Providing information and assistance to MBEs and WBEs relating to County procurement practices and
procedures, and bid specifications, requirements, goals and prerequisites.
(3)
Establishing uniform procedures and criteria for certifying, recertifying and
decertifying businesses as MBEs and WBEs, accepting certifications by other agencies, and
maintaining a directory of Certified Firms.
(4)
Establishing Project Specific Goals.
(6)
Working with User Departments to monitor contracts to ensure prompt payments to
MBEs and WBEs and
compliance with Project Specific Goals and commitments, including gathering
data to facilitate such monitoring.
(7)
Receiving, reviewing, and acting upon complaints and suggestions concerning the
Program.
(8)
Collecting data to evaluate the Program and other County contracting
initiatives.
(9)
Monitoring the Program and the County's progress towards the Annual
Participation Goals. The Director shall
report on a quarterly and annual basis to the President on the administration
and operations of the Program.
(b) The User Departments that receive
appropriate delegation for project management, contract management, and/or
construction and/or design contract responsibility shall have the following
duties and responsibilities with regard to the Program:
(1)
Assisting the Director with setting Project Specific Goals.
(2)
Assisting in the identification of available MBEs and
WBEs, and providing other assistance in meeting the
Project Specific Goals.
(3) Performing other
activities to support the Program.
(4) Gathering and maintaining prime contracting
and subcontracting data for those contracts which they manage.
(5)
Submitting subcontracting data as required to the Director.
Section
34-294. Race- and
Gender- Neutral Measures to Ensure Equal Opportunities for All Contractors and
Subcontractors.
The County shall
develop and use measures to facilitate the participation of all firms in County
construction contracting activities.
These measures shall include, but are not limited to:
(a) Arranging solicitation times for the
presentations of bids, quantities, specifications, and delivery schedules to
facilitate the participation of interested firms;
(b) Segmenting contracts
to facilitate the participation of MBEs, WBEs and other Small Businesses;
(c) Providing timely
information on contracting procedures, bid preparation and specific contracting
opportunities;
(d) Providing
assistance to businesses in overcoming barriers such as difficulty in obtaining
bonding and financing;
(e) Holding pre-bid
conferences, where appropriate, to explain the projects and to encourage
Contractors to use all available firms as subcontractors;
(f) Adopting prompt
payment procedures, including, requiring by contract that prime Contractors
promptly pay subcontractors;
(g) Reviewing retainage, bonding and insurance requirements to eliminate
unnecessary barriers to contracting with the County;
(h)
Collecting information from all prime Contractors on County construction
contracts detailing the bids received from all subcontractors for County
construction contracts and the expenditures to subcontractors utilized by prime
Contractors on County construction contracts;
(i) At the discretion of the County, letting a
representative sample of County construction contracts without goals, to
determine MBE and WBE utilization in the absence of goals;
(j) Maintaining
information on all firms bidding on County prime contracts and subcontracts;
and
(k) Referring
complaints of discrimination to
Section 34-295. Program eligibility.
(a) Only businesses
that meet the criteria for certification as a MBE or WBE may participate in the Program.
The applicant has the burden of persuasion by a preponderance of the
evidence.
(b) Only a firm owned
by a Socially and Economically Disadvantaged person(s)
may be certified as a MBE or WBE.
(1)
The firm's ownership by a Socially and Economically Disadvantaged person must
be real, substantial, and continuing, going beyond pro forma ownership of the firm as reflected in ownership
documents. The owner(s) must enjoy the
customary incidents of ownership and share in the risks and profits
commensurate with that ownership interest.
(2)
The contributions of capital or Expertise by the Socially
and Economically Disadvantaged owner(s) to acquire the ownership interest must
be real and substantial. If Expertise is
relied upon as part of a Socially and Economically Disadvantaged owner's
contribution to acquire ownership, the Expertise must be of the requisite
quality generally recognized in a specialized field, in areas critical to the
firm's operations, indispensable to the firm's potential success, specific to
the type of work the firm performs and documented in the firm's records. The individual whose Expertise is relied upon
must have a commensurate financial investment in the firm.
(c) Only a firm that
is managed and controlled by a Socially and
Economically Disadvantaged person(s) may be certified as a MBE or WBE.
(1)
A firm must not be subject to any formal or informal restrictions that limit
the customary discretion of the Socially and
Economically Disadvantaged owner(s). There can be no restrictions through corporate
charter provisions, by-law provisions, contracts or any other formal or
informal devices that prevent the Socially and Economically Disadvantaged
owner(s), without the cooperation or vote of any non-Socially and Economically
Disadvantaged person, from making any business decision of the firm, including
the making of obligations or the dispersing of funds.
(2)
The Socially and Economically Disadvantaged owner(s) must possess the power to
direct or cause the direction of the management and policies of the firm and to
make day-to-day as well as long-term decisions on management, policy,
operations and work.
(3)
The Socially and Economically Disadvantaged owner(s) may delegate various areas
of the management or daily operations of the firm to persons who are not Socially and Economically Disadvantaged. Such delegations of authority must be
revocable, and the Socially and Economically
Disadvantaged owner(s) must retain the power to hire and fire any such
person. The Socially and Economically
Disadvantaged owner(s) must actually exercise control over the firm's
operations, work, management and policy.
(4)
The Socially and Economically Disadvantaged owner(s) must have an overall
understanding of, and managerial and technical competence, experience and Expertise,
directly related to the firm's operations and work. The Socially and Economically Disadvantaged
owner(s) must have the ability to intelligently and critically evaluate
information presented by other participants in the firm's activities and to
make independent decisions concerning the firm's daily operations, work,
management, and policymaking.
(5)
If federal, state and/or local laws, regulations or statutes require the
owner(s) to have a particular license or other credential to own and/or control
a certain type of firm, then the Socially and Economically Disadvantaged
owner(s) must possess the required license or credential. If state law, County ordinance or other law regulations
or statute does not require that the owner posses the license or credential,
that the owner(s) lacks such license or credential is a factor, but is not dispositive, in determining whether the Socially and
Economically Disadvantaged owner(s) actually controls the firm.
(6)
A Socially and Economically Disadvantaged owner cannot engage in outside
employment or other business interests that conflict with the management of the
firm or prevent the owner from devoting sufficient time and attention to the
affairs of the firm to manage and control its day to day activities.
(d) Only an
independent firm may be certified as a MBE or WBE. An independent firm is one whose viability
does not depend on its relationship with another firm. Recognition of an applicant as a separate
entity for tax or corporate purposes is not necessarily sufficient to
demonstrate that a firm is independent and non-Affiliated. In determining whether an applicant is an
independent business, the Director will:
(1)
Scrutinize relationships with non-Certified Firms in such areas as personnel,
facilities, equipment, financial and/or bonding support, and other resources.
(2)
Consider whether present or recent employer/employee relationships between the
Socially and Economically Disadvantaged owner(s) of the applicant and non-Certified
Firms or persons associated with non-Certified Firms compromise the applicant's
independence.
(3)
Examine the applicant's relationships with non-Certified Firms to determine
whether a pattern of exclusive or primary dealings with non-Certified Firm
compromises the applicant's independence.
(4)
Consider the consistency of relationships between the applicant and
non-Certified Firms with normal industry practice.
(e) An applicant shall be certified only
for specific types of work in which the Socially and Economically Disadvantaged owner(s) has the ability and
Expertise to manage and control the firm's operations and work.
(f) The County shall certify the
eligibility of Joint Ventures involving MBEs or WBEs and non-Certified Firms.
(g) In lieu of conducting
its own certifications, the Director by rule may accept formal certifications
by other entities as meeting the requirements of the Program, if the Director
determines that the certification standards of such entities are comparable to
those of the County.
(h) The certification
status of all MBEs and WBEs
shall be reviewed periodically by the Office of Contract Compliance. Failure of the firm to seek recertification
by filing the necessary documentation with the Director as provided by rule may
result in decertification.
(i)
It is the responsibility of the Certified Firm to notify the Director of any
change in its circumstances affecting its continued eligibility for the
Program. Failure to do so may result in
the firm's decertification.
(j) The Director shall decertify a firm that
does not continuously meet the eligibility criteria.
(k) Decertification by another agency shall
create a prima facie case for
decertification by the County. The
challenged firm shall have the burden of proving that its County certification
should be maintained.
(l) A firm that has
been denied certification or recertification or has been decertified may
protest the denial or decertification as provided by rule.
(n) A third party may challenge the eligibility
of an applicant for certification or a Certified Firm as provided by rule. Such challenges shall be signed and sworn by
the individual challenging the eligibility of an applicant for certification or
a certified form. The burden of proof
shall rest with the complainant. Such
challenges to eligibility shall be subject to an appeal. The director shall be the final arbiter of all
challenges. The presumption that the
challenged firm is eligible shall remain in effect until the County renders a
final decision.
Section 34-296. Annual Aspirational Goals.
The Annual Aspirational Goals for the utilization of MBEs and WBEs on County
construction contracts and subcontracts shall be 24% for MBEs
and 4% for WBEs.
Section 34-297. Project Specific Goals.
The Director, in
consultation with the User Department shall establish Project Specific Goals
for construction Contracts based upon the availability
of at least three MBEs and three WBEs to
perform the anticipated subcontracting functions of the project and the County's utilization of MBEs and WBEs to date.
Section 34-298. Counting
MBE and WBE Participation.
(a) The entire amount
of that portion of a contract that is performed by the MBEs
or WBEs own forces shall be counted, including the
cost of supplies and materials obtained by the MBE or WBE for the work of the
contract, and supplies purchased or equipment leased by the MBE or WBE (except
supplies and equipment the MBE or WBE purchases or leases from the prime
Contractor or the prime Contractor’s Affiliate).
(c) When a MBE or WBE
performs as a participant in a Joint Venture, only the portion of the total
dollar value of the contract equal to the distinct, clearly defined portion of
the work of the Joint Venture's contract that is performed by the MBE or WBE
with its own forces and for which it is separately at risk, shall be counted.
(d) Only expenditures to a MBE or WBE that
is performing a Commercially Useful Function shall be counted. To determine whether a
MBE or WBE is performing a Commercially Useful Function, the County will
evaluate the amount of work subcontracted, industry practices, whether the
amount the MBE or WBE is to be paid under the contract is commensurate with the
work it is actually performing and other relevant factors. To perform a Commercially Useful Function,
the MBE or WBE must be responsible, with respect to materials and supplies used
on the contract, for negotiating price, determining quality and quantity,
ordering the material, installing (where applicable) and paying for the
material itself. A MBE or WBE does not
perform a Commercially Useful Function if its role is limited to that of an
extra participant in the contract through which funds are passed in order to
obtain the appearance of MBE or WBE participation. If a MBE or WBE subcontracts a greater
portion of the work of a contract than would be expected based on normal
industry practice, it is presumed not to perform a Commercially Useful
Function. When a MBE or WBE is presumed
not to be performing a Commercially Useful Function, the Certified Firm may
present evidence to rebut this presumption.
(e) One hundred
percent of the cost of the materials or supplies obtained from a MBE or WBE
Manufacturer or Regular Dealer shall be counted. One hundred percent of the
fees or transportation charges for the delivery of materials or supplies
required on a job site shall be counted only if the payment of such fees is a
customary industry practice and are commensurate with fees customarily charged
for similar services.
(f) If a firm ceases
to be a certified during its performance on a contract, the dollar value of
work performed under a contract with that firm after it has ceased to be
certified shall not be counted.
Section 34-299. Contract Pre- Award
Compliance Procedures.
(a) For all solicitations, the bidder/proposer
shall submit a Utilization Plan detailing all subcontractors from which the
Contractor solicited bids or quotations, and if Project Specific Goals have
been established, its achievement of the Goals or its Good Faith Efforts to do
so. The Utilization
Plan shall be due at the time the bid proposal is due.
(b) Any agreement
between a Contractor and a MBE or WBE in which the Contractor requires that the
MBE or WBE not provide subcontracting quotations to other Contractors is
prohibited.
(1)
Solicit through all reasonable and available means (e.g., attendance at pre-bid meetings, advertising and written
notices) the interest of all MBEs and WBEs certified in the scopes of work of the contract. The Contractor shall provide interested MBEs and WBEs with timely,
adequate information about the plans, specifications, and requirements of the
contract to allow MBEs and WBEs
to respond to the solicitation. The
Contractor must follow up initial solicitations with interested MBEs and WBEs.
(2)
Select portions of the work to be performed by MBEs
and WBEs in order to increase the likelihood that the
Project Specific Goals will be achieved.
This includes, where appropriate, breaking out contract work items into
economically feasible units to facilitate MBE and WBE participation, even when
the Contractor would otherwise prefer to perform these work items with its own
forces. It is the Contractor’s
responsibility to make a portion of the work available to MBEs
and WBEs and to select those portions of the work or
material needs consistent with the availability MBEs
and WBEs to facilitate their participation.
(3)
Negotiate in good faith with interested MBEs and WBEs. Evidence of
such negotiation includes the names, addresses, and telephone numbers of MBEs and WBEs that were
contacted; a description of the information provided regarding the plans and
specifications for the work selected for subcontracting; and why agreements
could not be reached with MBEs and WBEs. The Contractor
may not reject MBEs and WBEs
as being unqualified without sound reasons based on a thorough investigation of
their capabilities. That there may be
some additional costs involved in finding and using MBEs
and WBEs is not in itself sufficient reason for a
Contractor’s failure to meet the Project Specific Goals, as long as such costs
are reasonable. The ability or desire of
a Contractor to perform the work of a contract with its own organization does
not relieve it of the responsibility to make Good Faith Efforts on all subcontractable scopes of work.
(4)
Make efforts to assist interested MBEs and WBEs in obtaining bonding, lines of credit, or insurance as
required by the County or the prime Contractor, where appropriate.
(5)
Make efforts to assist interested MBEs and WBEs in obtaining necessary equipment, supplies, materials,
or related assistance or services, where appropriate.
(6)
Use the services of the Office of Contract Compliance, available minority/women
community organizations, minority/women contractors' groups, government
sponsored minority/women business assistance offices and other appropriate
organizations to provide assistance in the recruitment and placement of MBEs and WBEs.
(f) A signed letter of
intent from each listed MBE or WBE, describing the work, materials, equipment
or services to be performed or provided by the MBE or WBE and the agreed upon
dollar value shall be due at the time of bid proposal or within three days
after such submission.
(g) The Director shall timely review the
Utilization Plan before award, including the scope of work and the letters of
intent from MBEs and WBEs. The Director may request clarification in
writing of items listed in the Utilization Plan, provided such clarification
shall not include the opportunity to augment listed participation or Good Faith
Efforts.
(h) If the Director
determines that the Utilization Plan demonstrates that the Project Specific
Goals have been achieved or Good Faith Efforts made, with the concurrence of
the User Department, the Director and User Department shall recommend award to
Purchasing Agent.
(i)
If the Director finds that a Contractor did not make sufficient Good Faith
Efforts, the Director shall communicate this finding to the User Department and
recommend that the bid/proposal be rejected.
A Contractor may protest this determination pursuant to the County's bid
protest procedures.
Section 34-300. Contract
Administration Procedures.
(a) Upon award of a
contract by the County that includes Project Specific Goals, the Project
Specific Goals become covenants of performance by the Contractors in favor of
the County.
(b) The Contractor
shall provide a listing of all subcontractors to be used in the performance of
the contract, and detailed subcontractor information to the County with each
request for payment submitted to the County or as otherwise directed by the
County. The Director and the User Department
shall monitor subcontractor participation during the course of the
contract. The County shall have full and
timely access to the Contractor's books and records, including without
limitation payroll records, tax returns and records and books of account, to
determine the Contractor's compliance with its commitment to MBE and WBE
participation and the status of any MBE or WBE performing any portion of the
contract. This provision shall be in
addition to, and not a substitute for, any other provision allowing inspection
of the Contractor's records by any officer or official of the County for any
purpose.
(c) The Contractor cannot make changes to
the Utilization Plan or substitute MBEs or WBEs named in the Utilization Plan
without the prior written approval of the Director, Purchasing Agent and the
User Department. Unauthorized changes or
substitutions shall be a violation of this Ordinance and a breach of contract,
and may constitute grounds for rejection of the bid or proposal or cause
termination of the executed contract for breach, the withholding of payment
and/or subject the Contractor to contract penalties or other sanctions.
(1)
All requests for changes or substitutions of a MBE or WBE Subcontractor(s)
named in the Utilization Plan shall be made to the Director, Purchasing Agent
and the User Department in writing, and shall clearly and fully set forth the
basis for the request. A Contractor
shall not substitute a MBE or WBE subcontractor or perform the work designated
for a MBE or WBE subcontractor with its own forces unless and until the
Director, Purchasing Agent and the User Department approve such substitution in
writing. A Contractor shall not allow a
substituted subcontractor to begin work until both the
Director, Purchasing Agent and the User Department have approved the
substitution.
(2)
The facts supporting the request must not have been known nor reasonably should
have been known by either party before the submission of the Utilization
Plan. Bid shopping is prohibited. The Contractor must negotiate with the MBE or
WBE subcontractor to resolve the problem.
Where there has been a mistake or disagreement about the scope of work,
the MBE or WBE can be substituted only where an agreement cannot be reached for
a reasonable price for the correct scope of work.
(3)
Substitutions of the subcontractor shall be permitted only on the following
bases:
(i) Unavailability after receipt of reasonable notice to
proceed.
(ii)
Failure of performance.
(iii)
Financial incapacity.
(iv) Refusal by the subcontractor to honor the bid or
proposal price.
(v)
Mistake of fact or law about the elements of the scope of work of a
solicitation where agreement upon a reasonable price cannot be reached.
(vi) Failure of the subcontractor to meet insurance,
licensing or bonding requirements; or
(vii)
The subcontractor's withdrawal of its bid or proposal.
(4)
The County’s final decision whether to permit or deny the proposed
substitution, and the basis of any denial, shall be communicated to the parties
in writing by the Director.
(5) Where the Contractor has
established the basis for the substitution to the satisfaction of the County,
the Contractor shall make Good Faith Efforts to fulfill the Utilization
Plan. The Contractor may seek the assistance
of the Office of Contract Compliance in obtaining a new MBE or WBE. If the Project Specific Goal(s) cannot be
reached and Good Faith Efforts have been made, the Contractor may substitute
with a non-Certified Firm.
(6) If the County requires the
substitution of a MBE or WBE subcontractor listed in the Utilization Plan, the
Contractor shall undertake Good Faith Efforts to fulfill the Utilization
Plan. The Contractor may seek the
assistance of the Office of Contract Compliance in obtaining a new MBE or WBE
subcontractor. If the Goal(s) cannot be
reached and Good Faith Efforts have been made, the Contractor may substitute
with a non-Certified Firm.
(d) If a Contractor plans to hire a
subcontractor on any scope of work that was not previously disclosed in the
Utilization Plan, the Contractor shall obtain the approval of the Director to
modify the Utilization Plan and must make Good Faith Efforts to ensure that
MBES and WBEs have a
fair opportunity to bid on the new scope of work.
(e) Changes to the scopes of work shall be
documented by the User Department at the time they arise, to establish the
reasons for the change and the effect on achievement of the MBE or WBE goal.
(f) Prior to contract closeout, the
Director shall evaluate the Contractor's fulfillment of the contracted goals,
taking into account all approved substitutions, terminations and changes to the
contract's scope of work. If the County
determines that Good Faith Efforts to meet the MBE or WBE commitments were not
made, or that fraudulent misrepresentations have been made, or any other breach
of the contract or violation of this Ordinance, a remedy or sanction may be
imposed, as provided in the contract.
Section 34-301. Sanctions and Penalties.
(a) The following
violations of this Ordinance may result in a breach of contract:
(2)
Committing any other violations of this Ordinance.
(b) A Contractor or subcontractor is subject to
withholding of payments under the contract, termination of the contract for
breach, contract penalties, or being barred or deemed non-responsive in future
County solicitations and contracts as determined by the County’s Purchasing
Ordinance, if it is found to have:
(1) Provided false or misleading information in
connection with an application for certification or recertification or colluded with others to do so;
(3)
Failed in bad faith to fulfill Project Specific Goals, thereby materially
breaching the contract; or
(4)
Failed to comply in good faith with substantive provisions of this Ordinance.
Section 34-302. Interim Program Review and
Sunset.
(a)
The President and the Board of Commissioners shall receive quarterly and annual
reports from the Director detailing the County's performance under the Interim
Program.
(b) The President and the Board of
Commissioners will review these reports, including the Annual Participation
Goals and the County's progress towards meeting those Goals and eliminating
discrimination in its contracting activities and marketplace.
(c) Commencing on this
Chapter’s effective date, the County will retain qualified experts to develop
evidence to assist the County in evaluating whether it has a continuing
compelling interest in remedying discrimination against MBEs
and WBEs in its construction marketplace, and the
permissible scope of any narrowly tailored remedies.
(d) On or before the
sunset date of this Chapter, the County shall review the results of this
evidence gathering, to determine whether it has a compelling interest in
continuing narrowly tailored remedies to redress discrimination against MBEs or WBEs so that the County
will not function as a passive participant in a discriminatory marketplace.
(e) This Ordinance
shall sunset on or before
Section 34-303. Effective
Date. This Ordinance shall be
effective upon ninety (90) days after passage.
Approved and adopted
this 14th day of November 2006.
06-O-49
ORDINANCE
Sponsored
by
THE
HONORABLE PRESIDENT BOBBIE L. STEELE
PRESIDENT
OF THE
Sponsored
by
THE
HONORABLE JERRY BUTLER, FORREST CLAYPOOL, EARLEAN COLLINS,
JOHN P. DALEY, ELIZABETH ANN DOODY GORMAN, GREGG GOSLIN,
CARL
R. HANSEN, ROBERTO MALDONADO, JOSEPH MARIO
JOAN
PATRICIA MURPHY, ANTHONY J. PERAICA, MIKE
QUIGLEY,
PETER
N. SILVESTRI, DEBORAH SIMS AND LARRY SUFFREDIN
RECORDER OF DEEDS BULK DATABASE INDEX INFORMATION ORDINANCE
WHEREAS, the
Office of the Recorder of Deeds has in operation a Bulk Database Index
Information System (the System); and
WHEREAS, the
data, records and documents within the System can be made available to
locations remote from the Office of the Recorder of Deeds; and
WHEREAS,
the Office of the Recorder of Deeds wishes to provide private contractual
access to the System to such remote locations.
NOW, THEREFORE, BE IT
ORDAINED, by the Cook County Board of Commissioners that Chapter 2, Article
IV, Division 3, Subdivision 1, Sec. 206 of the Cook County Code is hereby
enacted as follows:
Section 1.
Sec.
206. Bulk Database Index
Information.
(a) This Ordinance shall be known as “The
Recorder of Deeds Bulk Database Index Information Ordinance”.
(b) The Office of the Recorder of Deeds is granted authority to negotiate contracts with industry customers (commercial and non-commercial entities) for the purpose of providing access to the Computerized Indexing System in accordance with the provisions set forth herein.
(c) All contracts and
agreements shall be presented to the Cook County Board of Commissioners for
approval and execution.
(d) The County and the Office of the Recorder
of Deeds shall be held harmless and indemnified by Title Industry Customers for
the use of any data, records or documents accessed from the Bulk Database Index
Information System. The County and Office of the Recorder of Deeds shall make
no guarantee as to the accuracy of the data, records or documents contained
within the Bulk Database Index Information System. All data, records or
documents shall be provided “as is” without any warranty of any kind, expressed
or implied, including but not limited to, the warranties of performance,
merchantability and fitness for particular purpose.
(e) All Title Industry Customers shall be
responsible access fee, connectivity, network maintenance costs and charges in
connection with accessing the Bulk Index Information Database.
(f) All Title Industry Customers will be
charged no more than ten cents ($.10 per line of data).
(g) All money paid by Industry Customers will
be collected by the Office of the Recorder of Deeds and shall be remitted to
the
Section 2.
This Ordinance
shall be effective upon passage.
Approved and adopted
this 14th day of November 2006.
06-O-50
ORDINANCE
Sponsored
by
THE
HONORABLE LARRY SUFFREDIN,
Co-Sponsored
by
THE
HONORABLE JOHN P. DALEY AND JOAN PATRICIA MURPHY
Amendment to the
“
WHEREAS, the Federal assault weapons ban, of the
Violent Crime Control and Law Enforcement Act of 1994, as amended, 18
WHEREAS, the County Board desires to (1) amend Ordinance 93-O-37, as amended by Ordinance 93-O-46 and Ordinance 99-O-27, Article I, Section 1-2 by striking and deleting language in section 1-2; and (2) amend Ordinance 93-O-37, as amended by Ordinance 93-O-46 and Ordinance 99-O-27, Article VI, by deleting and adding language as stricken through and underlined below.
ARTICLE I. GENERAL PROVISIONS
Section 1-2 Applicability.
(a) This article shall control the licensing of
all firearms dealers within
(b) Pursuant to Article