City of Erie, PA Discrimination and Contract Compliance

DISCRIMINATE, DISCRIMINATES AND DISCRIMINATION — To distinguish, differentiate, separate or segregate on the basis of race, religion, color, sex, national origin or ancestry.

(b)

CONTRACTOR — Any person, partnership, corporation, association or joint venture which has been awarded a public contract, and includes every subcontractor on such a contract.

(c)

SUBCONTRACTOR — Any person, partnership, corporation, association or joint venture which supplies any of the work, labor, supplies, equipment, materials or any combination of the foregoing under a contract with the contractor on a public contract.

(d)

PUBLIC CONTRACT — Any contract awarded by the City whereby the City is committed to expend or does expend public funds in return for work, labor, services, supplies, equipment, materials, or any combination of the foregoing, or any lease, lease by way of concession agreement, permit or permit agreement whereby the City leases, grants or demises property of the City or otherwise grants a right or privileges to occupy or use property of the City.

(e)

CONSTRUCTION CONTRACT — Any public contract for the construction, rehabilitation, alteration, conversion, extension or repair of buildings, streets or other improvements to real property.

(f)

MINORITY BUSINESS ENTERPRISE (MBE) — A business enterprise, whether a sole proprietorship, partnership, corporation, association or joint venture:

(1)

Wherein at least 51% of which is owned by minority group members and no part of its ownership, operation and control is in the hands of the respective prime contractor of the relevant City contract;

(2)

Wherein minority group members share in the risks and profits of the enterprise to the extent of their individual holdings;

(3)

Wherein minority group members participation in the business is active, as opposed to passive, and such participation is not dependent on the consent of nonminority group members who may also have holdings in the business enterprise; and

(4)

Wherein the business enterprise has experience in the area to which it claims expertise.

(g)

FEMALE BUSINESS ENTERPRISE (FBE) —

(1)

A sole proprietorship where the sole proprietor is a female; or

(2)

A business corporation where 51% of the interests in such corporation are beneficially owned by females and females occupy the majority of management and Board positions and control all decisions concerning the corporation; or

(3)

A partnership where 51% of the partnership interests in such partnership are owned by females and females occupy the majority of management and partnership positions and control all decisions concerning the entity; or

(4)

Any other business or professional entity where 51% of the interests are owned by females and females occupy the majority of management and Board positions and control all decisions concerning the entity.

(h)

MINORITY — Blacks, Hispanic-Americans, Asian-Americans, American Indians and American Aleuts.

(i)

BIDDER — Any person, partnership, corporation, association or joint venture seeking to be awarded a public contract and/or construction contract.

(j)

CITY — The City of Erie, Pennsylvania.

(k)

PUBLIC FUNDS — Any moneys expended by the City from its own general funds or from State or Federal sources.

§ 127.02 Application.

[Ord. 63-1985 § 2, passed 10-23-1985]

This article shall apply to contracts, contractors and subcontractors who perform City contracts in an amount of $10,000 or more.

§ 127.03 Contract Compliance Officer.

[Ord. 63-1985 § 3, passed 10-23-1985]

In addition to his/her current duties the City's Contract Compliance Officer shall have the authority and responsibility to:

(a)

Ascertain, within 90 days of the enactment of this article, the total number of bona fide minority owned businesses in the Erie Metropolitan Statistical area.

(b)

Establish within 90 days of the enactment of this article minimum target goals within each department for bona fide owned business participation to meet the City goals established below.

(c)

Devise within 90 days of the enactment of this article appropriate policies, regulations and procedures for insuring the participation of bona fide minority owned businesses in various City contracts.

(d)

Establish procedures for monitoring and enforcing compliance with this article in cooperation with the Office of the City Solicitor.

(e)

Submit a written semiannual report to the Mayor and Council indicating the progress made toward achieving the goals set out below. The report shall include, but not be limited to a summary of departmental and City contracts let during the relevant periods, and the extent and percentage of minority participation, and recommendations as to appropriate future goals.

(f)

Make all determinations as to compliance with the Minority Business Enterprise Program, and shall meet with such contracting parties for such purposes.

§ 127.04 Equal employment opportunity clause.

[Ord. 63-1985 § 4, passed 10-23-1985]

(a)

All public contracts hereinafter entered into by the City shall incorporate an Equal Employment Opportunity Clause, which shall read as follows:

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 or national origin. The contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment, without regard to their race, religion, color, sex or national origin. As used herein, "treated" means and includes, without limitation, the following: recruited, whether 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 contracting officers setting forth the provisions of this nondiscrimination clause.

(2)

The contractor shall in all solicitations or advertisements for employees place by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex or national origin.

(3)

The contractor shall send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice advising the labor union or worker's representative of the contractor's commitment under the Equal Employment Opportunity Clause of the City and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(4)

The contractor shall furnish all information and reports required by the Contract Compliance Officer and shall permit access to his books, records and accounts by the contracting agency and by the Contract Compliance Officer for purposes of investigation to ascertain compliance with the program.

(5)

The contractor shall take such action with respect to any subcontractor as the City may direct as a means of enforcing the provisions of Subsections (a)(1) to (8) hereof, including penalties and sanctions for noncompliance, provided, however, that in the event the contractor becomes involved in or is threatened with litigation as the result of such direction by the City, the City shall enter into such litigation as is necessary to protect the interests of the City to effectuate the City's Equal Employment Opportunity Program and in the case of contracts receiving Federal assistance, the contractor or the City may request the United States to enter into such litigation to protect the interests of the United States.

(6)

The contractor shall file and shall cause his subcontractors, if any, to file compliance reports with the City in the form and to the extent prescribed by the Contract Compliance Officer of the City. Compliance reports filed at such times as directed shall contain information as to the employment practices, policies, programs and statistics of the contractor and his subcontractors.

(7)

The contractor shall include the provisions of Subsections (a)(1) through (8) of this Equal Employment Opportunity Clause in every subcontract or purchase order so that such provisions will be binding upon each subcontractor or vendor.

(8)

Refusal by the contractor or subcontractor to comply with any portion of this program as herein stated and described will subject the offending party to any and all of the following penalties:

Withholding of all future payments under the involved public contract to the contractor in violation until it is determined that the contractor or subcontractor is in compliance with the provisions of the contract;

Refusal of all future bids for any public contract with the City or any of its departments or divisions until such time as the contractor or subcontractor demonstrates that he has established and shall carry out the policies of the program as herein outlined;

Cancellation of the public contract and declaration of forfeiture of the performance bond;

In cases in which there is substantial or material violation or the threat of substantial or material violation of the compliance procedure or as may be provided for by contract, appropriate proceedings may be brought to enforce those provisions, including the enjoining, within applicable law, of contractors, subcontractors or other organizations, individuals or groups who prevent directly, indirectly or seek to prevent directly or indirectly, compliance with the policy, as herein outlined.

(9)

The above outlined procedures shall not apply to any contract already in existence or let out for bid prior to the enactment of this article.

§ 127.05 Contract compliance requirements.

[Ord. 63-1985 § 5, passed 10-23-1985; Ord. 34-2006, passed 7-19-2006]

(a)

All notices to prospective bidders published on behalf of the City shall include as a part of the contract specifications the condition that all bidders will be required to comply with Erie Minority Female Business Enterprise Compliance Program regarding equal employment opportunity.

(b)

All reports required herein shall be submitted in duplicate to the department, division or other agency letting the contract.

(c)

Each bidder shall file as part of bid documents, contract employment reports with the City contracting agency or as may be directed by the Contract Compliance Officer. Such contract employment reports shall include such information as to the employment practices, policies, programs, and statistics of the contractor, and shall be in such form as the Minority Business Enterprise Compliance Officer may prescribe. Subcontractors shall also submit such contract employment reports to the City before approval by the City as subcontractor.

(d)

All contracts covered by this article shall be executed by the Contract Compliance Officer regarding "Minority Participation/Goal Compliance" prior to appearing on the City Council agenda.

§ 127.06 Pre-award conference.

[Ord. 63-1985 § 6, passed 10-23-1985]

(a)

Following receipt and review of the employment information submitted by the bidders, and prior to award of a contract, the apparent successful bidder and his known major subcontractor shall be required to attend a pre-award conference if called by the Contract Compliance Officer, at which time such bidder and major subcontractors shall submit affirmative action programs to promote equal opportunity in employment.

(b)

The Minority Contract Compliance Officer shall determine whether or not the apparent bidder has complied with this article and shall submit his determination and recommendation thereon to the Mayor or the Director of the department involved.

§ 127.07 Goals.

[Ord. 63-1985 § 7, passed 10-23-1985]

The following goals for minority and female owned business participation shall serve as initial goals for the City to pursue during the first full fiscal year. These goals shall not be construed as absolute upper limits on the amount of City contracts such entities are able to participate in. These goals shall be applicable to all types of City contracts. The goals shall be as follows:

Dollar Amount	MBE Goal (percent)	FBE Goal (percent)
10,000 to 20,000	5	1
20,000 to 25,000	10	3
25,000 and up	15	5 7508967696

§ 127.08 Severability.

[Ord. 63-1985 § 8, passed 10-23-1985]

If any section, subsection, clause, sentence or phrase of this article is found to be unlawful by reason of other superior laws of the United States or the Commonwealth of Pennsylvania, such a determination shall not affect the validity of the remaining portions of this article. The applicable law in determining the parties rights and liabilities under this article are the laws of the Commonwealth of Pennsylvania.