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HomeMy WebLinkAbout4959 1 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDINANCE NO. 4 9 5 9 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE ACCEPTANCE AND APPROPRIATION OF GRANT FUNDS IN THE AMOUNT TWENTY-SIX THOUSAND TWO HUNDRED THREE DOLLARS, ($26,203), AND AUTHORIZING THE M~OR AND CITY CLERK TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN KING COUNTY AND THE CITY OF AUBURN TO ACCEPT SAID FUNDS FOR IMPLEMENTATION OF THE 1997-1998 WASTE REDUCTION AND RECYCLING PROGRAM. WHEREAS, King County and the City of Auburn have adopted King County Comprehensive Solid Waste Management Plan, the which includes recycling and waste reduction goals; and WHEREAS, in order to help meet these goals, the Kin g County Solid Waste Division has established a multi-phased waste reduction and recycling grant program for the suburban cities; and WHEREAS, this program provides funding to further the development and/or enhancement of local waste reduction and recycling projects; and WHEREAS, the Auburn City Council of the City of Auburn must adopt and approve all appropriations by Ordinance pursuant to Chapter 35A.33 RCW; and Ordinance No. 4959 April 1, 1997 Page i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 NOW, THEREFORE, THE CITY COUNCIL OF THE WASHINGTON, DO ORDAIN AS FOLLOWS: CITY OF AUBURN, ~ Pursuant to Chapter 35A.33 RCW, the City hereby approves the expenditure and appropriation of a total amount of TWENTY-SIX THOUSAND TWO HUNDRED TKREE DOLLARS, ($26,203) which constitutes reimbursement of funds for implementin9 1997-1999 waste reduction and recyclin9 program. ~ The Mayor and Auburn are authorized to execute Kin9 County for the reimbursement said Agreement is attached hereto and is incorporated by reference herein. ~ The Mayor is such administrative procedures as may out the directions of this legislation. ~ This Ordinance shall force five (5) days from and after its publication, as provided by law. City Clerk of the City of an Interlocal ~reement with of said funds. A copy of and designated Exhibit "A" hereby authorized to implement be necessary to carry take effect and be in passage, approval and Ordinance No. 4959 April 1, 1997 Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19~ 20 21 22 23 24 25 26 CHARLES A. BOOTH MAYOR ATTEST: Robin Wohlhueter, City Clerk APPROVED AS TO FORM: Michael 7. Reynolds, City Attorney Ordinance No. 4959 April 1, 1997 Page 3 "' ' ',. '" ,' CONTR,~CT #D232 D INTERLOCAL AGREEMENT Between KING COUNTY and the CITY OF AUBURN This Interlocal Agreement (hereinafter referred to as the Agreement) is executed between King County, a political subdivision of the State of Washington, and the City of Auburn, a municipal corporation of the State of Washington, hereinafter referred to as "County" and "City" respectively. This Agreement has been authorized by the legislative body of each party as designated below: King County Motion No. 9847 City t~t ~//.J~/JJJe/L) PREAMBLE King County and the City of Auburn adopted the King County Comprehensive Solid Waste Management Plan, which includes recycling and waste reduction goals. In order to help meet these goals, the King County Solid Waste Division has established a multi-phased waste reduction and recycling grant program for the suburban cities. This program provides funding to further the development and/or enhancement of local waste reduction and recycling projects. Grant funding is currently provided through three phases of this waste reduction and recycling (WR/R) program. Phase I grant monies are available to those suburban cities which did not participate in the previous King County Solid Waste Division grants-to-cities program, upon which the current program is based. Cities applying for Phase I grant fi~nds must meet specific eligibility requirements. Phase II grant monies are available to all King County suburban cities that operate under the King County Comprehensive Solid Waste Management Plan. Phase III grant monies are available to any suburban cities participating in Phase II of the grant program, for the continuation of programs/projects previously funded under the grant program. The City of Auburn has elected to participate in Phase II, and potentially Phase III of the grant program. The City will spend its grant ~unds to fulfill the terms and conditions set forth in the scope of work which is attached hereto as Exhibit A and incorporated herein by reference. The County expects that any information and/or experience gained through the grant program by the City will be generously shared with the County and the other suburban cities. I. PURPOSE The purpose of this Agreement is to define the terms and conditions for funding to be provided to the City of Auburn from the County for waste reduction and recycling programs and/or services as outlined in the scope of work and budget attached as Exhibit A. H. RESPONSIBILITIES OF THE PARTIES The responsibilities of the parties to this Agreement shall be as follows: The City 1. :Funds provided to the City by the County pursuant to this Agreement shall be used to provide waste reduction and recycling programs and/or services as outlined in Exhibit A. The total amount of funds available from this grant shall not exceed $26,203. The City will submit quarterly reports to the County in a format specified by the County, These reports will include: a) a description of each activity accomplished in the pre~dous quarter as ;pertains to the scope of work; and b) reimbursement requests with copies of iinvoices and statements for each expenditure for which reimbursement is requested. These reports shall be submitted to the County fifteen days after the end of each calendar quarter: (I) first quarter reports are due by April 15; (2) second quarter reports are due by July 15; (3) third quarter reports are due by October 15; and (4) fourth quarter reports are due by January 15. The City will submit a final report to the County which summarizes the work completed under the grant program and evaluates the effectiveness of the projects for which grant funds were utilized, according to the evaluation methods specified in the scope of work. The final report is due within three months of completion of the project(s) outlined in the scope of work, but no later than March 31 of the following year. The City shall comply with the Minority and Women's Business utilization provisions of King County Code Chapter 4.18, and amendments thereto, attached to the City's copy of the Agreement as Exhibit B and incorporated herein by reference to the other two copies of this Agreement. During the performance of this Agreement, neither the City nor any party subcontracting under the authority of this Agreement shall discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation, age, or presence of any sensory, mental, or physical handicap in the employment or application for employment or in the administration or delivery of or access to services or any other benefits under this Agreement as defined by King County Code, Chapter 12.16. During the perfomaance of this Agreement, neither the City nor any party subcontracting under the authority of this Agreement shall engage in unfair employment practices as defined by King County Code, Chapter 12.18. TJae City shall use recycled paper for the production of all printed and photocopied documents related to the fulfillment of this Agreement. The City shall use both sides of paper sheets for copying and printing and shall use recycled/recyclable products wherever practical The City shall maintain accounts of the direct and indirect costs of the programs covered by this Agreement for a period of at least six years. These accounts shall be subject to inspection, review or audit by the County and/or by federal or state officials as so authorized by law. The City agrees to credit King County on all printed materials provided by the County which the City is duplicating for distribution. Either King County's name and logo must appear on King County materials (including fact sheets, case studies, etc.), or, at a minimum, the City will credit King County for artwork or text provided by the County as follows: "artwork provided courtesy of King County Solid Waste Division" and/or "text provided courtesy of King County Solid Waste Division." 10. The City agrees to submit to the County copies of all written materials which it produces and/or duplicates for local waste reduction and recycling projects which have been fttnded through the waste reduction and recycling grant program. Upon request, the City agrees to provide the County with a reproducible copy of any such written materials and authorizes the County to duplicate and distribute any written materials so produced, provided that the County credits the City for the piece. 1 I. This project shall be administered by John Giordanengo, Recycling Specialist, at City of Auburn, 1305 "C" Street Southwest, Auburn, Washington 98001, or designee. B. The County: The County shall administer funding for the waste reduction and recycling grant program. Funding is designated by city, based on the phases of the grant program in which each city will be participating, and is distributed on a per capita basis. The City of Auburn's budgeted grant funds are $26,203, which is the City's current share of Phase II grant funds. Within forty-five (45) days of receiving a request for reimbursement from the City, the County shall either notify the City of any exceptions to the request which have been ktentified or shall process the request for payment. If any exceptions to the request are made, this shall be done by written notification to the City providing the reason for such exception. The County will not authorize payment for activities and/or expenditures which are not included in the scope of work and budget attached as Exhibit A, unless the scope has been amended according to Section V of this Agreement. King County retains the right to withhold all or partial payment if the City's report and reimbursement request are incomplete (i.e., do not include proper documentation of 3 expenditures and/or adequate description of each activity described in the scc, pe of work for which reimbursement is being requested), and/or are not consistent with the scope of work and budget attached as Exhibit A. The County agrees to credit the City on all printed materials provided by the City to the County which the County duplicates for distribution. Either the City's name and logu will appear on such materials (including fact sheets, ease studies, etc.), or, at a minimum, the County will credit the City for artwork or text provided by the City as follows: "artwork provided courtesy of the City of Aubt/rn" and/or "text provided courtesy of the City of Auburn" The County retains the right to share the written material(s) produced by the City which have .been funded through this program with other King County cities for them to duplicate and · distribute. In so doing, the County will encourage other cities to credit the City on any pieces ~which were produced by the City. 5. The waste reduction and recycling grant program shall be administered by Lyne Davis, Project Manager, or designee, specified by the King County Solid Waste Division. HI. DURATION OF AGREEMENT This Agreement shall become effective on March 15, 1997 and shall terminate on December 3 I, 1998. IV. TERMINATION This Agreement may be terminated by King County, in whole or in part, for convenience without cause prior to the termination date specified in Section III, upon thirty (30) days advance written notice. This Agreement may be terminated by either party, in whole or in part, for cause prior to the termination date specified in Section III, upon thirty (30) days advance written notice. Reasons for termination for cause may include but not be limited to: nonperformance, misuse of funds, and/or failure to provide grant related reports/invoices as specified in Section [I.A.2. and Section I1. A.3. If the Agreement is terminated as provided in this section: (1) the County will be lliable only for payment in accordance with the terms of this Agreement for services rendered prior to the effective date of termination; and (2) the City shall be released from any obligation to prov~ide further services pursuant to this Agreement. Nothing herein shall limit, waive, or extinguish any right or remedy provided by this Agreement or law that either party may have in the event that the obligations, terms and conditions set forth in this Agreement are breached by the other party. V. AMENDMENTS This Agreement may be amended only by written agreement of both parties. Funds may be moved between tasks in the scope of work, attached as Exhibit A, only upon written or verbal request by the City and w, rltten or verbal approval by King County. Such requests will only be approved if the proposed change(s) is (are) consistent with and/or achieves the goals stated in the scope and falls within the activities described in the scope. VI. HOLD HARMLESS AND INDEMNIFICATION The City shall protect, indemnifiy, and hold harmless the County, its officers, agents, and employees from and against any and all claims, costs, and/or issues whatsoever occurring from actions by the City and/or its subcontractors pursuant to this Agreement. The City shall defend at its own expense any and all claims, demands, suits, penalties, losses, damages, or costs of any kind whatsoever (hereinafter "claims") brought against the County arising out of or incident to the City's execution of, performance of or failure to perform this Agreement. Claims shall include but not be limited to assertions that the use or transfer of any software, book, document, report, film, tape, or sound reproduction or material of any kind, delivered hereunder, constitutes an infringement of any copyright, patent, trademark, trade name, and/or otherwise results in unfair trade practice. VII. INSURANCE The City, at its own cost, shall procure by the date of execution of this Agreement and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with performance of work pursuant to this Agreement by the City, its agents, representatives, employees, and/or subcontractors. The minimum limits of this insurance shall be $1,000,000 general liability insurance combined single limit per occurrence for bodily injury, personal injury, and property damage. Any deductible or self-insured retentions shall be the sole responsibility of the City. Such insurance shall cover the County, its officers, officials, employees, and agents as additional insureds against liability arising out of activities performed by or on behalf of the City pursuant to this Agreement. A valid Certificate of Insurance is attached to this Agreement as Exhibit C, unless Section VIIB. applies. If the Agency is a Municipal Corporation or an agency of the State of Washington and is self-insured for any of the above insurance requirements, a written acknowledgement of self-insurance is attached to this Agreement as Exhibit C. VIII. ENTIRE CONTRACT/WAIVER OF DEFAULT This Agreement is the complete expression of the agreement of the County and City hereto, and any oral or written representations or understandings not incorporated herein are excluded. Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver of breach of any provision of this Agreement shall not be deemed to be waiver of any other or subsequent breach and shall nol be co~strued to be a modification of the terms of this Agreement unless stated to be such through written approval by the County, which shall be attached to the original Agreement. IX. TIME IS OF THE ESSENCE The County and City recognize that time is of the essence in the performance of this Agreement. X. SEVERABILITY If any section, subsection, sentence, clause or phrase of this Agreement is, for any reason, found to be unconstitutional or otherwise invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions. XL NOTICE WITNESS WHEREOF this Agreement has been executed by each party on the date set forth below: King County Accepted for King County Executive (Title) ~ Director of Natural Resources Date Date Pursuant to Motion No. 885'1 City Attorney Approved as to form: King County P~,.qsecuting Attorney 6 Date 4 [k~-z~- Date ¢/~3/~? EXHIBIT A Contract gD23292D Scope of Work and Budget for the King County Waste Reduction and Recycling Grant Program for the Suburban Cities A. BASIC'INFORMATION City Name: City of Auburn Program Title: King County Waste Reduction and Recycling Grant Program for the Suburban Cities Program Manager: John Giordanengo Recycling Specialist 1305 "C" Street Southwest Auburn, WA 98001 Telephone Number: 931-3047 Fax Number: 735-2145 4. Budget: $26,203 (Phase II funds) B. SCOPE OFWORK Task 1: Multi-Family Recycling Program Project History: To date, apartments in the City have been offered commingled recycling services by the City of Auburn, upon request. Auburn's contracted solid waste and recycli~tg hauler, R.S.T. DisPOsal, Inc., has serviced all multi-family garbage, yard waste and commingled recycling accounts. The City of Auburn has developed a rate incentive structure for multi- family recycling and garbage services. Multi-family tenants have provided their own in- unit containers to store recyclables. Project Description: The City of Auburn will develop and implement a comprehensive Multi-Family Recycling Program. City of Auburn, Solid Waste Division staff(referred to for the purposes of this document as "Solid Waste staff') will develop the following: · a multi-family recycling brochure for tenants. This brochure will explain the importance and benefits of recychng and will include a list of what is and what is not re,eyclable in Auburn's outside commingled recycling containers. · a "what's recyclable" reference decal. Tenants will be asked to post the reference decal in a convenient location within their apartments. * stickers for outside garbage and recycling containers to educate tenants about , contamination issues. · a flyer to promote the City's Multi-Family Recycling Program and to gain support from tenants. The flyer will be inserted in Auburn's quarterly solid waste and recycling infor[n, ation source, 4 R Future. · a direct-mail piece which will be mailed to all multi-family complex owners and/or managers. · newspaper advertisements which will be run in the local print media. The purpose of these advertisements will be to promote the Multi-Family Recycling Program, to educate residents about the importance of recycling and to make multi-family complex managers and/or owners aware of the cost savings associated with a successful Mule:i-Family Recycling Program. · an in-unit recycling bag for commingled recyclables which will be distributed to tenants The bags will be used to store recyclables in the multi-family units and will be carried outdoors by tenants to the commingled recycling containers to be emptied. The bags will be designed for extended use. Each unit of' participating multi-family complexes will receive one bag. Multi-family complex managers and/or owners can contact Solid Waste staff for additional bags, if needed. Auburn's Recycling Technical Assistant will be responsible for the following: · contacting apartments and providing technical assistance to potential and current multi- family complex recyclers; · distributing educational materials; and · monitoring the Multi-Family Recycling Program. Project Deliverables: · approximately 2,000 copies of a multi-family recycling brochure · approximately 4,500 copies ora "what's recyclable" reference decal · approximately 700 copies of stickers for outside garbage and recycling containers · approximately 7,000 copies ora promotional flyer · approximately 570 direct-mail pieces sent to all multi-family complex owners and/or managers · a minimum of 2 newspaper advertisements for the local media · the purchase of approximately 5,000 in-unit recycling bags for commingled recyclables which will be distributed to tenants technical assistance to multi-family recyclers, as possible Project Goak The goal of this project is to increase participation in Auburn's current multi-f~tmily diversion rate from 34% to approximately 45% and to decrease contamination in the commingled recycling containers at multi-family complexes. Project Evaluation: For the duration of the program, Solid Waste staff will track the following: · increases and/or decreases in program participation; · , decreases and/or increases in contamination; · the number of in-unit recycling containers distributed; and · increases and/or decreases in multi-family solid waste and recycling tonnages on a monthly basis.. Task 2: Education of Solid Waste Staff Project Description: To provide recycling, waste prevention and composting education for Solid Waste staff through their participation in the 1997 Washington State Recycling Association (WSRA) Conference. Project Deliverable: Solid Waste staff attendance at 1997 WSRA Conference Project Goal: The goal of this task is to increase the waste reduction and recycling knowledge of Solid Waste staff. Project Evaluation: Solid Waste staff will keep track of the workshops and presentations attended at the workshop. Task 3: Residential Education Project Description: In order to educate students and teachers about recycling and waste prevention, Solid Waste staff will provide waste prevention and recycling magic shows for the winners of the annual Auburn Elementary School Litter Challenge. Solid Waste staff will contract with Steffan Soule to perform these magic shows. Project Deliverable: A minimum of 1 magic show presentation Project Goal: The goal of this project is to increase the knowledge of recycling and waste prevention among Auburn students. Project Evaluation: The City will distribute a survey to any teachers that attend the magic show presentations. Since there will be a limited number of teachers surveyed, anecdotal survey responses will be considered as part of the evaluation process. C. Scope of Work Timeline Multi-Family Recycling - Develop graphics and text for in-unit First quarter of 1997 Program bags and stickers - Develop educational materials and Secon,rl quarter of 1997 advertisements - Order in-tm/t containers and stickers Second quarter of 1997 - Begin program promotion Third quarter of 1997 - Begin outreach and technical Third quarter of 1997 assistance - Evaluate program Ongo~ag through 1998 Education of Solid Waste Staff - Registration for conference First quarter of' 1997 - Attend conference Second quarter of 1997 Residential Education - Contact Steffan Soule about magic First quarter of 1997 show perfornumces - Begin planning for magic show First quarter of 1997 performances - Provide magic show performances Seennd quarter of 1997 - Survey teachers Second quarter of 1997 D. Scope of Work Budget The total budget is $26,203. Multi-Family Recycling Program - Postage $ 300 $24,003 - In-unit containers (5,000) $20,703 - Stickers $ 1,000 - Advertising $ 2,000 Education of Solid Waste Staff - WSRA Conference $ 1,200 $ 1,200 Residential Education - Minimum nf2 magic shows $ 1,000 $ 1,000 4 4.18.005 REVENUE AND FINANCI~kL REGULATION Sections: 4.18.005 4.18.007 4.18.010 4.18.020 4.18.030 4.18.040 4.18.050 4.18.060 4.18.070 4.18.080 4.18.090 4.18.095 4.18.100 4.18.105 4.18.110 4.18.115 4.18.120 4.18.130 chapter 4.18 MINORITY AI~)W(~EI~'S BUSINESS ENTERPRISES Findings. Purpose. Definitions. Powers and duties. Utilization goals. Accomplishment of utilization goals. Utilization requirements, general. Utilization requirements, specific. Waivers. Monitoring, reporting, and enforcement. Annual report required. Graduating firat~ out of program. Authorization to implement procedures. Implementation resources. Effect of ordinance, status of solicitations. Effective date. Severabllity. Study and report. 4.18.00S Finclinga. The county council hereby finds the following facts: A. In hiring and dealing with contractors and subcontractors of all types, public and private owners, developers, contractors, financial institutions and sureties have discriminated and do discriminate against minority and women's businesses doing business or seeking to do business with King County based on the race and sex of the owners of these businesses. This discrimination has been established by public hearings conducted by the county council and other local jurisdictions and by the studies and reports performed for the county by consultants. The factual findings of these reports, specifically the Perkins Cole study dated January 1990 and the Washington Consulting Group study dated July 9, 1990, are incorporated herein by this reference. B. But for the provisions of its past and present minority and women's business enterprise ordinances, King County would have been, and would continue to be, a passive participant in the discrimination against these businesses. C. The provisions of this chapter are necessary to remedy the discrimination against minority and women's businesses and to prevent King County from financing and participating in this discrimination with its contracting dollars. D. The market from which King County draws contractors extends throughout the State of Washington, although the businesses which provide the primary market for King County are located in the King, Pierce, and Snohomish County area. E. King County is prohibited by state law from helping minority and women's businesses overcome the effects of discrimination through financial assistance or reduction of bonding requirements. While the existence of such alternative remedies must continue to be explored, no effective alternatives appear to be presently available. F. ~-lthough a program to provide technical assistance to minority and women's businesses cannot provide an adequate immediate remedy for past discrimination against such businesses, such a program can assist in a long- term effort to eliminate the need for the remedies provided by this chapter. (King County 12-94) 145 MINORITY AND WOMEN'S BUSINESS ENTERPRISES 4.18.005 - 4.18.010 G. The above-referenced consultant studies have produced statistical data and recommendations for refinements to the King County minority and women's business program which are reflected in the amendment~ set forth in this chapter. (Ord. 9609 ~ 1, 1990: Ord. 8937 ~ 1, 1989). 4.18.007 Purpome. The purpose of this chapter is to remedy the effects of discrimination by increasing the opportunities for minority and women's businesses to provide goods and services to King County by using reasonably achievable goals. {Ord. 9609 ~ 3 B, 1990) 4.18.010 Definitions. Ail words shall have their ordinary and usual meanings except those defined in this section which shall have in addition, the meaning set forth below. In the event of conflict, the specific definition spelled out below shall presumptively, but not conclusively pre,ail. ~ A. "Administrator" shall mean the administrator of the King County office of civil rights and compliance. B. "Affirmative Action Plan" shall mean the written, fora~L1 King County policy adopted annually, stating the goals and programs of county government to be performed in the areas of contract compliance, equal emplo!anent opportunity and m/nority/women's business contracting. C. "Affirmative Efforts" shall mean making vigorous, documented attempts in good faith to contact and contract with minority/women's businesses. Where affirmative efforts are required by, or are grounds for, waiving provisions of this chapter, the director's determination shall be based on procedures to be outlined in accordance with the dictates of this chapter. D.' "Architectural and Engineering Contracts" shall mean contracts for the performance of architectural and engineering services by licensed and registered firms and persons acting as consultants to King County. E. "Broker" shall mean a business which purchases goods or services from another business or businesses for the sole purpose of resale to the county or a contractor doing business with the county. F. "Certification" shall mean the process by which the Office of Minority and Women's Businesses of the State of Washington determines a business meets the criteria for a minority-owned business enterprise, a women-owned business enterprise, and/or a combination minority and women's business enterprise as set forth in WAC chap. 326-02 and WAC chap. 326-20. G. "Combination Minority and Women Business" means a business certified as a combination minority and women's business enterprise by the Office of Minority and Women's Businesses of the State of Washington which is 50% legitimately owned and controlled by minority nuales or minority businesses as defined in this chapter. H. "Cormmercially Useful Function" shall mean the performance of real and actual services in the discharge of any contractual endeavor~ T~e contractor must perform a distinct element of work which the business has the skill and expertise as well as the responsibility of actually performing, managing and supervising. In determ/ning whether a business is performing a co~nercially useful function, factors, including but not limited to the follo%~ng, will be considered: 1. Whether the business has the skill and expertise to perform work for which it is being/has been certified; 2. Whether the business actually performs, manages and supervises the work for which it is being/has been certified; and 3. Whether the business purchases goods and/or serwLces from a non-minority/women's business enterprise and simply resells goods to the county, county contractor, or other person doing business with the county for 145-1 (King County 12-94) 4.18.010 REVENUE AND FINANCIAL REGULATION 'the ~urpose of allowing those goods to be counted towards fulfillment of minority/women's business enterprise utilization goals. I. "Concession Contracts" shall mean those contractual arrangements for the sale of food, beverages and/or items of personal property at any facility owned and/or managed by King County. J. "Conduit" shall mean a minority/women's business with which a contractor has agreed to subcontract, when the minority/women's business does not perform the subcontract, and instead the subcontract is performed by a non-minority/women's business. K. "Construction Contracts" shall mean, those contractual arrangements made by King County for the construction, repair, rehabilitation, alteration, conversion or extension of buildings, parks, streets or other improvements to real property. L. "Consultant Contracts" shall mean those contractual arrangements made for the procurement of expert personal, professional and/or technical services. Consultant contracts shall include legal services provided to King County government, but shall not include architectural and engineering contracts as defined by this chapter. M. "Contract Awarding Authority" shall mean any person with the power to enter into a contractual arrangement binding King County and shall also mean the particular office, agency or division on whose behalf the contract is entered. In addition, this term shall include, but shall not be limited to heads of county departments, divisions or offices. N. "Contractor" shall mean any person, partnership, corporation, or other type of business entity which has a contract with King County or serves in a subcontracting capacity with an entity having a contract with King County for the provision of goods and/or services. O. "Department" shall refer to any department as defined by King County ordinance or other applicable law and shall include all county agencies not associated with a department. These agencies shall similarly discharge those duties this chapter requires of departments and shall include the King County prosecuting attorney, the King County assessor, and the King County council. P. "Director" shall mean the director of the King County department of executive administration. Q. "Front" shall mean a business which purports to be a minority/women's business but which is actually owned and/or controlled in a manner which is inconsistent with the requirements of certification. R. "Joint venture" shall mean an association of two or ~re persons, partnerships, corporations or any combination of them, established to carry on a single business activity which is limited in scope or direction. The degree to which a joint venture may satisfy relevant utilization goals cannot exceed the proportionate interest of the minority/women's business held as a member of the joint venture in the work to be performed. The agreement establishing the joint venture, partnership or other multi-entity relationship, shall be in writing. Further, minority/women's participation in a Joint venture shall be based on the sharing of real economic interest in the venture and shall include proportionate control over management, interest in capital acquired by the joint venture, and interest in earnings. S. "Legitimately Owned and Controlled" shall mean for the purpose of determining whether a business is a "minority business" that minorities shall possess: 1. Ownership of at least fifty-one percent interest in the business, unless the minority business qualifies as a corporate sponsored dealership under the provisions of WAC 326-02-030. The ownership shall be real and continuing, and shall go beyond the pro forma ownership of the business reflected in the ownership docu/~ents. The minority owner(s) shall enjoy the (King County 12-94) 145-2 MINORITY AND WOMEN'S BUSINESS ENTERPRISES 4.18.0~0 customary incidents of ownership and shall share in the risks and profits commensurate with their ownership interests, as demonstrated by an examination of the substance, rather than the form, of arrangements. 2. Control over management, interest in capital, interest in profit or loss and contributions to capital, equipment and expertise on wlhich the claim of minority-owned status under this chapter is based. The ~[nority owners must possess and exercise the legal power to direct the ~mnagement and policies of the business and to make day-to-day as well as major decisions on matters of management, policy, and operations. If the owners of the business who are not minorities are disproportionately responsible for the operation of the business, then the business is not controlled by minorities. The business must be ~owned, controlled, and managed on a day-to-day, full-tim~ basis by the minority owner(s). The requirements of this subsection S.2. shall not apply, if ~the minority business qualifies as a corporate sponsored dealership under the provisions of WAC 326-02-030. 3. Ownership and control shall be measured as though not subject to the: community property interest of a spouse if both spouses certify that: a. Only one spouse participates in the management of the business; b. The nonparticipating spouse relinquishes control over his/her coKanunity property interest in the subject business. T. "Minority Business" means a business certified by the Office of Minority and Women's Businesses of the State of Washington as a minority business enterprise which is legitimately owned and controlled by a minority person or persons as defined in this section and which has previously sought to do business in King County. The director is authorized to determine that specific racial groups have not been discriminated against in their ownership and/or operation of particular trades or areas of business in King County. The director may exclude such businesses from consideration as "minority businesses" under this chapter, in connection with contracts involving such trades or areas of business, as provided in Section 4.18.080 of this chapter. U. "Minority or Minorities" means a person who is a citizen of the United States and who is a member of one or more of the followin~ historically disadvantaged racial groups: 1. Black or African American: Having origins in any of the Black racial groups of Africa; 2. Hispanic: Of Mexican, Puerto Rican, Cuban, or Central or South American culture or ori'gin; 3. Asian American: Having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands; or 4. ~waerican Indian or Alaskan Native= Having origins in any of the original peoples of North America. The director shall have discretion to make a final decision as to whether an individual is a minority. V. "Nonprofit Corporation" shall mean a corporation organized pursuant to R.C.W. Ch. 24.03. In the case of nonprofit corporations organized under the laws of a state other than Washington, a nonprofit corporation shall mean one organized for one or more of the purposes set forth in R.C.W. 24.03.015 and meeting the definitions in R.C.W. 24.03.005. W. "Pass-Through" means buying or obtaining goods from a non-women's business, non-minority business or non-combination women/minority business, and reselling or transferring those goods to the county, county contractors or other persons doing business with the county for the purpose of obtaining any advantage or benefit conferred under this chapter, without performing a commercially useful function. X. "Percentage Factor" shall mean the special ranking factors 145-3 (King County 12-94) 4.18.010 REVENUE AND FINANCIAL REGULATION .'established by this chapter to be applied in certain competitive bid situations where minority/women's businesses respond to solicitation or are included as subcontracts in responding parties' responses to solicitation. Y. "Purchasing Contracts" shall mean, but not be limited to, those contracts which are awarded by the department of executive administration as the representative of King County, or any contract awarded by King County for the purchase of tangible goods. Z. "Responding Party" shall mean any person, partnership, corporation or business entity which makes a proposal as defined in this chapter in response to a solicitation as defined in this chapter. AA. "Service Contracts" shall mean those contracts for technical, professional or other work performed by a vendor, such as the making of repairs, servicing, maintenance and/or cleaning, and which does not involve the provision of substantial tangible items such as materials, supplies or equipment. For the purposes of this chapter, the term "service contracts" shall include services provided to members of the public, including public defender services, but shall not include construction, rental or leasing of equipment or the traditional professional services such as consulting, legal services, feasibility studies and design studies. BB. "Set Aside" shall mean that proportion of each contract which is designated for participation of minority/women's businesses as established by this chapter. CC. "Small Business Concern" means a small business as defined pursuant to Section 3 of the federal Small Business Act and relevant, regulations promulgated thereto. DD. "Solicitation" shall mean a contract awarding authority's request for the provision of any one or more of the following: goods and services of any kind, equipment leases, and rentals/purchase of space. Solicitation shall include requests for proposals, invitations to bid and similar items. "Solicitation specifications," shall mean any documents, literature or other information accompanying a solicitation which provides additional data regarding the contract awarding authority's request. EE. "Utilization Goals" shall mean those separately designated annual goals for the use by King County of minority/women's businesses. The goals shall be expressed as a numerical percentage of the total dollar value of all contracts to be awarded by the county. These goals shall be applicable to businesses organized for profit, along with governmental agencies and quasi-goverrnnental agencies, unless the agencies are specifically excepted by or in accordance with the provisions of this chapter. FF. "Utilization Requirements," shall mean those efforts which the responding parties, King County and the particular department shall make to meet the county's utilization goals, including but not limited to the percentage factors and set aside requirements established by this chapter. GG. "Violating Party," shall mean a person or entity which has violated a provision or provisions of this chapter. HH. "Waiver Statement," shall mean a written statement directed to the director containing reasons why any provision or provisions of this chapter shall not apply to a particular person, partnership, corporation, business entity, contract awarding authority, department, or other entity. Where a waiver or waivers are granted, the utilization goals shall be applied in a manner so as to reflect the loss of the monetary value of those contracts exempted from the requisites of this chapter. II. "Women's Business," means a business certified by the Office of Minority and Women's Businesses of the State of Washington as a women's business enterprise and which has previously sought to do business in King County. The director is authorized to determine that women as a class have (King County 12-94) 145-4 MINORITY AND WOMEN'S BUSINESS 'ENTERPRISES 4.18.010 - 4.18.03D not been discriminated against in their ownership and operation of particular trades or areas of business in King County. The director may exclude such businesses from consideration as "women's businesses" under this chapter, in connection with contracts involving such trades or areas of business, according to the procedure provided for in Section 4.18.080 of this chapter. (Ord. 10205 ~ 1, 1991: Ord. 9609 ~ 2, 1990= Ord. 8937 ~ 2, 19~19~ Ord. 8313 ~ 1, 1987: Ord. 8121, 1987: Ord. 7789 ~ 1, 1986: Ord. 7512 ~ 1, 1986: Ord. 5983 ~ 1, 1982). 4.18.020 Powers and ~utiea. A. In addition to the powers and duties given to the King County executive elsewhere in this chapter, the executive shall, through the director, department of executive administration have responsibility for adrainistering, monitoring and enforcing the goals and requirements identified in this chapter: B. In addition to the powers and duties given the director, department of executive administration elsewhere in this chapter, the director, department of executive adm~nistration shall: 1. Establish rules, regulations, and procedures for implementing and administering this chapter; 2. Reco~m%end to the King County executive annual utilization goals for King County; 3. Have the authority to enter into cooperative agreements with other government agencies concerned with increasing the participation of minority/women's businesses in government contracting; 4. With the advice of contract awarding authorities, formulate and periodically update a plan to make minority/women's businesses aware of contracting opportunities with King County; 5. Review all King County solicitation lists and where possible, place minority/women's businesses on such lists. These lists shall be updated periodically. (Ord. 5983 ~ 2, 1982). 4.18.030 Utili~atien g~als. On or before the thirtieth day of April 1992, and every three years following that date, the administrator shall submit to the King County executive for approval proposed utilization goals for King County for the following three year period. Separate utilization goals shall be established for the use of minority businesses and for the use of women's businesses. These utilization goals shall be established separately for each of the following types of contracts: architectural and engineering contracts, construction contracts, consultant contracts, concession contracts, and purchasing and service contracts. The utilization goals shall be transmitted with the office of civil rights and compliance annual report to the King County council for approval. Existing utilization goals shall remain in effect until newly submitted ones receive final King County council approval. A. The utilization goals shall be reasonably achievable. To the extent that relevant information is available, the utilizatio~ goals shall be based on the following factors: 1. By contract category, the n~mber of firms certified by the State Office of Minority and Women's Business Enterprises, seeking to do business with King County as either prime or subcontractors; 2. By contract category, the total number of firms seeking to do business with King County as either prime or subcontractors; 3. By contract category, the geographic area of competition; 4. By contract category, the capacity and/or capability of certified minority and women's businesses seeking to do business with King County compared with the capacity and/or capability of non-minority and non-women's businesses seeking to do business with King County; 145-5 {King County 12-94) 4.18.030 - 4.18.040 REVENUE AND FINANCIAL REGULATION 5. By contract category, the number of minorities and women with requisite skills in related occupations; 6. By contract category, the affirmative action goals for minorities and women in related occupations; 7. By contract category, the rates of new entry by ~inorities and women into related training, educational fields, and occupations; 8. By contract category, what availability would be absent discrimination; 9. By contract category, rates of entry of new minority and women's businesses compared to non-minority and non-women's businesses. B. The following goals shall be the annual goals for ali. King County departments until such time as new goals are approved by the King County council: Contract Category MBE% WBE% Architecture/Engineering 17% 10% Concessions 10% 5% Construction 14% 8% Consultant 6% 15% Purchasing/Service 10% 3% (Ord. 9609 ~ 3(part) and 4, 1990). 4.18.040 Accon~lizhn~nt of utilization goale. A. For all contracts, accomplishment of utilization goals established by this chapter shall be based on the dollar amount of the contract in question. Accomplishment of the goals shall be calculated in the following manner: 1. General--The dollar value of any and all contracts awarded by a contract awarding authority to a minority/women's business shall be counted towards accomplishment of the applicable utilization goals. a. The total dollar value of each contract awarded to businesses owned and controlled by both minority males and non-minority females shall be apportioned on the basis of the percentage of ownership to the utilization goals for minorities and women respectively. b. The total dollar value of a contract with a minority/women's business owned and controlled by minority women shall be either counted toward the minority utilization goal or the goal for women, or apportioned on the basis of ownership between minorities and women, not to both. 2. Subcontracts--If a contractor uses subcontractors who are minority/women's businesses, the amount which is given to the minority/women's business for their work on the contract shall be credited towards; meeting the applicable utilization goals. 3. Joint Ventures--Where one or more minority/women's businesses are participants in a joint venture with one or more non-minority or non-women's businesses, the amount of money received by the minority/women's business enterprise shall be calculated in proportion to their participation in the joint venture in accomplishing the applicable utilization goals. 4. Supplies/Materials--The contract awarding authority or a prime contractor may count toward its utilization goals: a. expenditures for materials and supplies obtained from minority/women's business suppliers and manufacturers; provided that, the minority/women's business assume the actual and contractual responsibility for the provision of the materials and supplies; b. its entire expenditure made to a minority/women's business manufacturer; that is, a supplier that produces goods from raw materials or substantially alters them before resale; c. the amount of the commission paid to minority/women's businesses and resulting from a particular contract with the county; provided that a (King County 12-94) 145-6 MINORITY AND WOMEN'S BUSINESS ENTERPRISES 4.18.040 - 4.18.05~ minoritY/women's business supplier performs a commercially useful functio~ in the process. 5. Brokers - Fronts - or Similar Pass-Through Arrangements. Businesses acting as brokers, fronts, conduits or ~imilar pass-through arrangements shall not be certified as minority/women's business enterprises, unless the brokering service reflects normal industry practice and the broker performs a convnercially useful function. Such businesses determined to be acting under these arrangements or persons who create such arrangements shall be subject to the penalties enumerated in this chapter. B. The director, department of executive administration shall calculate the accomplishment of utilization goals for King County. In the event of disputes regarding these calculations, a department may request review of the director's decision by the King County executive. ~ C. After having met their annual utilization goals, departments shall continue to make affirmative efforts to do business with minority/women's businesses. : D. The failure of a department or King County to meet the annual dollar utilization goals established from time to time by this chapter shall not constitute grounds for a lawsuit against a department or the county, provided that the department or the county has made affirmative efforts to meet those goals. The failure of a department to meet the requirements of this chapter shall be reviewed by the King County executive and corrective action taken where appropriate. (Ord. 7789 § 3, 1986: Ord. 5983 ~ '4, 1982). 4.18.050 Utilization zequiremente, general. In order to meet the utilization goals established in accordance with this chapter, efforts including but not limited to the following shall be made: 1. Under the auspices of the director, the administrator shall begin im~aediately to design a technical assistance and outreach program which shall be established by April 1, 1992. This program shall include 'the following elements: a. A county-wide, industry-wide, regularly-scheduled contractor orientation program to promote compliance with and understanding of the provisions of this chapter and King County Code, Chapter, 12.16; b. Feasible options for bonding, insurance, and banking assistance for minority-owned and women-owned businesses; c. A county-wide program, designed to assist departments in enhancing opportunities for minority-owned and women-owned businesses; d. A fully-developed and maintained resource list, to include all available resources state-wide for minority-owned and women-owned businesses; e. Such other program options as would serve to assist minority- owned and women-owned businesses in overcoming the barriers of past and present discrimination. 2. Prior to entering into any contract, the contract awarding authority shall: a. Make affizmative efforts to solicit proposals from minority/women's businesses; b. Examine alternatives for arranging contracts by size and type of work so as to enhance the possibility of participation by minority/women's businesses. 3. Prior to submitting any bid, proposal, or other response to a solicitation for which subcontractors may be used, responding parties shall n%ake good faith affirmative efforts to contact, solicit bids and proposals from, and use minority/women's businesses. 4. The following shall be included in the body of the contract document in any and all contracts signed between a contract awarding authority and a contractor: 145-7 {King County 12-94) 4.18.050 - 4.18.060 REVENUE AND FINANCIAL REGULATION a. A provision indicating that this chapter is incorporated by reference into any and all King County contracts and failure to comply with any of the requirements of the chapter by a contractor will be considered a breach of contract. b. A requirement that during the term of the contract the contractor shall comply with, as to tasks and proportionate dollar amounts tlhroughout the term of the c6ntract, all requirements for the use of minority/women's businesses. In the absence of a waiver, minority/women's businesses which for any reason no longer remain associated with the contract or the contractor shall be replaced with other certified minority/women's businesses in accordance with procedures established by the administrator. c. A provision prohibiting any agreements between a responding party and a minority/women's business in which the minority/women's business promises not to provide subcontracting quotations to other responding or potential responding parties. d. The requirement of maintenance of relevant records, and information necessary to document compliance with this chapter and the contractor's utilization of minority and women's businesses in its overall public and private business activities, and shall include the right of the county to inspect such records. This shall be implemented no later than April 1, 1992. e. A provision requiring the payment of specific liquidated damages in the event a contractor fails to perform a commercially-useful function and/or operates as a broker, front, conduit or pass-through, with the amount of liquidated damages established in advance by the department of executive administration based on the type of contract involved. The provision should include the following language: The purpose of King County's minority/women's business ordinance is to provide a prompt remedy for the effects of past discrimination. The county in general, and this program in particular, are damaged when a contract, or portion of a contract, to be performed by a minority/women's business is not actually performed by a minority/women's business enterprise in compliance with this chapter. Because the actual amount of such damage is not reasonably calculable, the parties agree and stipulate that liquidated damages of $ fairly estimate the amount required to compensate the county for resulting delays in carrying out the purpose of the program, the costs of meeting utilization goals through additional contracts, the administrative costs of investigation and enforcement and other damages and costs caused by the violation. (Ord. 10049 ~ 1, 1991: Ord. 9609 § 5, 1990: etd. 8313 ~ 2, 1987: Ord. 7789 § 4, 1986: Ord. 5983 § 5, 1982). 4.18.060 Utilization re~iro"~nta, aL~ecific. A. In order to expedite achieving of the utilization goals established in accordance with this chapter, the following utilization requirements shall apply to all competitive bids and other responses to solicitation: 1. For all purchasing, service, and concession contracts and all architectural and engineering contracts, consultant contracts and construction contracts under ten thousand dollars, the director, with the advice of the adr0inistrator, shall determine a percentage factor appropriate to offset the effects of discrimination in the industry involved, which percentage shall be used in determining which responding party is the lowest responsible bidder or best proposal: a. Responding parties whose bids are within the percentage factor of the best proposal or the bid made by the lowest bidder shall be ranked in the following order: First, minority/women's businesses which will perform the entire contract (King County 12-94) 145-8 MINORITY AND WOMEN'S BUSINESS ENTERPRISES 4.18. 060 unassisted and those minority/women's businesses which will exclusively ~se minority/women's businesses as subcontractors, suppliers or in sirallar assisting roles to the extent set forth above. Second, minority/women's businesses which alone or as part of joint ventures serve as the prime contractor where minority/women's business participation is at least twenty-five percent of the dollar value of a contract; Third, non-minority/non-women's businesses which use minority/women's businesses as subcontractors, suppliers, or in similar assisting roles in an amount equal to at least twenty-five percent of the contract amount. Fourth, non-minority/non-women's businesses which dc not use minority/women's businesses as subcontractors, suppliers, or in sit, ilar assisting roles to the extent set forth above. b. A.ll responding parties within each particular ranking shall be grouped according to the amount of their bid or the evaluation score of their proposal as deterr~[ned by the awarding authority, with low bidders and higher scoring proposals receiving the highest priority. The lowest bidder or higher scoring proposal within the highest ranking category shall be awarded the contract in question. c. In determining the percentage factor to be used for a particular contract, the director shall consider the following factors: (1) Price differentials between M/WBEs and non-MWBEs on previously- subm/tted bids; (2) Standard industry costs; (3) Standard industry profit margins; (4) Availability of M/WBEs to perform as retailers, distributors, wholesalers and manufacturers, by commodity area; and (5) Other pertinent facts. d. Generally applied percentages shall be determined by com~nodity area, and these percentages shall be implemented by April 1, 1992. 2. For every construction, architectural and engineering, and consultant contract the following set aside requirements shall be met: a. Contracts for construction, consultant and architectural/engineering services, the estimated cost of which exceeds ten thousand dollars, shall require responding parties to include in their responses to solicitation both minority and women's business par~:icipation in the contract in a percentage which equals or exceeds the percentages determined for the contract by the director. The director, with the advice of the administrator, shall deter~u~ne the percentages for each contract based on the extent of subcontracting opportunities presented by the contract and the availability of minority and women's business enterprises qualified to perform such subcontracting work. Such percentages may be higher or lower than the annual goals for the type of contract involved. b. Where a contract is awarded to a minority or women's business which will perform at least twenty-five percent of the work, the set aside requirements of these subsections shall not apply. c. As part of the bid or proposal package, all responding parties shall identify the dollar amount and/or percentage value of minority/women's business participation. All responding parties shall also identify the particular minority/women's businesses to be used in performing the contract, specifying for each the dollar and/or percentage value of the participation, the type of work to be performed, and other information as raay reasonably be required to determine the responsiveness of the bid or proposal. d. During the term of the contract, any failure to coK~ly with the percentages of minority/women's business participation required for the bid or proposal shall be considered a material breach of contract. The dollar value 145-9 (King County 12-94) 4.18.060 REVENUE AND FINANCI~ REGULATION 'of th~ total contract used for the calculation of the set-aside shall be increased or decreased to reflect executed change orders unless: (1) a waiver is obtained in accordance with K.C.C. 4.18.070A. after consultation among the contract-awarding authority, the director and the contractor; or (2) the department obtains a reduction in the amount of the set aside according to the procedure in K.C.C. 4.18.060B. B. Departments may request a reduction in the amount of the set aside for either or both minority business enterprises or women's business enterprises or in the percentage factor to be applied under the percentage preference method, by submitting the reasons therefor in writing to the director. 1. The director, with the advice of the adrainistrator, may grant such a reduction upon determination that: a. The reasonable and necessary requirements of the contract render subcontracting or other participation of businesses other than the bidder or proposer infeasible at the adopted goal levels; or b. Qualified minority and women's business enterprises capable of providing the goods o~ services required by the contract, are unavailable in the market area of the project, despite every feasible attempt to locate appropriate minority and women's business enterprises to meet adopted goals. c. The available minority and/or women's businesses have given price quotes which are unreasonably high in that they exceed competitive levels beyond amounts which can be attributed to cover costs inflated by the present effects of discrimination. 2. ~y reductions in set aside amount granted by the director shall specify the amount to which the set aside has been reduced. C. Where this Section 4.18.060 specifies that a set aside or a percentage factor shall be used for a particular type of contract, the method specified is the preferred method for achieving the utilization goals. A department may use the other method in its solicitation documents for a specific contract if it determines that a method other than the one established by this Section 4.18.060 will be a more feasible method of achieving the annual utilization goal. In the event that a department chooses to use a method other than the one specified in this Section 4.18.060, it shall include in its annual report to the executive as required by Section 4.18.080 D. of this chapter, documents demonstrating that a method other than the one established by this Section 4.18.060 is a more feasible method of achieving the annual utilization goal. D. All solicitation documents shall include the applicable requirements of Sections 4.18.050 and 4.18.060. In addition, documents shall include a provision prohibiting any agreement between a responding party and a minority/women's business in which the minority/women's business promises not to provide subcontracting quotations to other responding or potential responding parties. Bids, proposals, and other responses which fail to meet the requirements of this Section 4.18.060 shall, within the limitations of federal and state law, be deemed non-~esponsive unless a waiver has been granted pursuant to Section 4.18.070 of this chapter. E. The percentage factor and set aside requirements of this Section 4.18.060 shall not apply to contracts awarded for the remainder of any calendar year in which the contract awarding authority is determined by the director, with the advice of the adrainistrator, to have met the applicable county utilization goals as established by this chapter. The percentage factor and set aside provisions of this Section 4.18.060 shall again apply in each succeeding calendar year until the annual utilization goals for that year have been met by the contract awarding authority. (King County 12-94) 145-10 MINORITY AND WOMEN'S BUSINESS ENTERPRISES 4.18.060 - 4.18.07~ F. For the Kingdome food and beverage concession contract, the ~et aside method of achieving utilization goals shall apply. G. The requirements of this Section 4.18.060 shall cease to apply to contracts awarded by King County and its departments on December 31, 1997, unless reenacted by the King County council. (Ord. 10679 § 1, 1992: Ord. 10049 ~ 2, 1991: Ord. 9609 § 6, 1990: Ord. 8937 ~ 4, 1989: Ord. 8313 ~ 3, 1987: Ord. 7789 § 5, 1986: Ord. 7512 ~ 2, 1986: Ord. 5983 § 6,, 1982). 4.18.070 Waivers. Contract awarding authorities, along with or on behalf of responding parties and contractors, may apply for waiver of one or mor~ requirements of this chapter as they apply to a particular contract or contracts. A. Waivers may be granted by the director, with the advice of the adatlnistrator, in any of the following circumstances; 1. When the needed goods and services are readily available from only one source, in which case the contracting awarding authority shall, in addition to the requirements contained in Ordinance No. 4551, K.C.C. 4.16.030, submit a written justification of the need for sole source treatment to the director who shall grant or deny the request for waiver within three business days; 2. Emergencies, in which case emergency contracting shall be handled in accordance with the requirements of Ordinance No. 4551, K.C.C. 4.16.050. 3. Contracts for which neither a minority nor a women's business is available to provide needed goods or services, in which case a waiver may be applied for in accordance with procedures to be developed by the administrator. Prior to granting a waiver, the director shall certify that a minority/women's business is in fact not available to provide the needed goods and/or services. 4. Contracts awarded to non-profit organizations, governments and governmental organizations including but not limited to municipal corporations, consortiums and associations of governmental agencies or officials and agencies created by interlocal agreement, per R.C.W. 39.34, or by operation of state or federal law; where because of a responding party's non-profit status, ownership of the corporation or other entity cannot be determined. However, solely with the exception of contracts between King County and cities and towns where King County is the grantee for federal or state funds passed'through to such jurisdictions, the waiver shall not extend to those profit-making contractors which contract with the referenced responding parties. 5. When available minority and/or women's businesses haw~ given price quotes which are unreasonably high in that they exceed cor~Detitive levels beyond amounts which can be attributed to cover costs inflated by the present effects of discrimination. As a condition of granting any waiver, the director may require that contractors or the contract-awarding authority make affirmative efforts to utilize minority and/or women's businesses in the contract. B. Where the executive determines that the reasonable and necessary requirements of a contract render subcontracting or other participation of businesses other than a responding party unfeasible, he/she may grant a waiver from the set aside provisions of this chapter; PROVIDED THAT, the waiver shall not be granted after the solicitation request has been publicly released by the contract awarding authority; PROVIDED FURTHER THAT, the solicitation specifications shall state that the waiver has been authorized and that solicitations received, proposing subcontracting or other participation of business other than the responding party, shall be rejected as non-responsive; PROVIDED FURTHER THAT, following award of the contract, should subcontracting 145-11 (King County 12-94) 4.18.070 - 4.18.080 REVENUE AND FINANCIttL REGULATION or participation of businesses other than the responding party become necessary, the previously authorized waiver shall be null and void. The contractor (original responding party) shall solicit both minority and women business participation in a percentage which equals the contract awarding authority's annual goal. C. Where the executive determines that compliance with the requirements of this chapter would impose an unwarranted economic burden on, or risk to, King County as compared with the degree to which the purposes and policies of this chapter would be furthered by requiring compliance he/she ~my reduce or waive the utilization requirements of this chapter; PROVIDED THAT upon taking such action, the King County executive shall notify the members of the King County council in writing and FURTHER PROVIDED, upon receipt of the notice, if the King County council determ2~nes that the waiver does not meet the standards of this section, the King County council may by motion, within ten working days of the receipt of the notice determine the waiver to be null and void. (Ord. 9609 ~ 7, 1990: Ord. 8937 ~ 5, 1989: Ord. 5983 ~ 7, 1982). 4.18.080 Monitoring, reporting, and enforcement. A. The county executive, through the administrator shall have the responsibility for monitoring implementation of the requirements of this chapter and shall have the power to request from departments, responding parties and/or contractors any relevant records, information and documents. B. Contract awarding authorities, with the assistance of the director shall keep complete and detailed records regarding compliance with this chapter. The records shall include the dollar value and the subject matter of each contract along with the name of the contractor, the participation levels (in dollars, number of contracts awarded, and type of work), of minority/women's businesses where the contract award provides for participation, and other information as the director deems necessary. C. The administrator shall be responsible for gathering all information concerning compliance with this chapter and shall have access to all pertinent King County records. D. With the assistance of the administrator each department shall submit to the administrator an annual report on its performance in meeting the utilization goals required by this chapter on or before March 15th of each year. This report shall include the number and dollar amount of contracts awarded, by contract category and the dollar amount and the percentage of minority/women's business participation by contract and contract category and by number of set-aside contracts, percentage preference contracts, contracts requiring affirmative efforts, and contracts for which waivers were granted. The report shall also identify problems in meeting the requireK~nts of this chapter, if any, and suggestions for improvements. E. Monitoring of Effects. The ada%inistrator shall establish procedures no later than April 1, 1992 to collect evidence and monitor the effects of the provisions of this chapter in order to assure, insofar as is practical, that the remedies set forth herein do not disproportionately favor one or more racial or ethnic groups and that the remedies do not remain in effect beyond the point that they are required to eliminate the effects of discrimination in the local contracting industries. To the extent further amenc~ents to this chapter are required to effect these ends, the administrator shall prepare appropriate ordinances for the council's consideration. F. Certification and Recognition Process. 1. Pursuant to Chap. 328, Laws of 1987, the Office of Minority and Women's Businesses of the State of Washington shall be solely responsible for certifying and decertifying businesses. King County's minority and women's (King County 12-94) 145-12 MINORITY AND WOMEN'S BUSINESS ENTERPRISES 4.18.080 business enterprise program is only for minorities and minority bus, ness'and women's businesses and combination businesses as defined in K.C.C. 4.18.010; therefore the director through the administrator shall recognize only those combination minority and women's business enterprises or minority business enterprises certified by the State of Washington which also meet the definitions of K.C.C. 4.18.010, according to minority status information provided to King County by the Office of Minority and Women's Businesses of the State of Washington. Businesses are only eligible for King County's programs so long as they re~in certified by the State of Washington. 2. It shall be considered a violation of this chapter 'to obtain, or attempt to obtain, certification or the benefits of any provision of this chapter, on the basis of false or misleading information, whether provided to King County or to the Office of Minority and Women's Businesses of the State of~ashington. ~ 3. No contract requiring or proposing minority/women's business participation may be entered into unless all minority/women's businesses identified to meet the utiliza~ on goals by a responding party were, at the time the bid was submitted, cez ified by the Office of Minority and Women's Businesses of the State of Washington and recognized by the director through the administrator as eligible to participate in King County's minority/women's business program and the director through the administrator determines all identified minority/women!s businesses appear able to perform a commercially useful function on that contract as proposed. Lists of certified and recognized minority/women's businesses shall be provided to all departments and made available to the public. 4. No business shall apply to King County in order to participate in the programs established by this chapter. G. Where a complaint is filed within one year of the completion of all work on a contract alleging a violation of this chapter by a contractor, subcontractor or contract-awarding authority, or where, within that time period, evidence of a violation is discovered from information gained through cor~Dliance monitoring, the administrator shall cause to be served or mailed, by certified mail, return receipt requested, a copy of the complaint or notice of investigation on the respondent within twenty days after the filing of said charge and shall promptly make an investigation thereof. The investigation shall be directed to ascertain the facts concerning the violation alleged in the complaint and shall be conducted in an objective and impartial manner. During the investigation, the administrator shall consider any statement of position or evidence with respect to the allegations of the complaint which the complainant or the respondent wishes to submit. 1. The administrator shall have authority to sign and issue subpoenas requiring the attendance and testimony of witnesses, the production of evidence including but not limited to books, records, correspondence or documents in the possession or under the control of the person subpoenaed, and access to evidence for the purpose of examination and copying as is necessary for the investigation. The administrator shall consult with the prosecuting attorney before issuing any subpoena under this section. If an individual fails to obey a subpoena, or obeys a subpoena but refuses to testify when requested concerning any matter under investigation, the administrator may invoke the aid of the King County prosecuting attorney who shall petition to the Superior Court for King County for an order or other appropriate action necessary to secure enforcement of the subpoena. The petition shall be accompanied by a copy of the subpoena and proof of service, and shall set forth in what specific manner the subpoena has not been complied with, and shall ask for an order of the court to compel the witness to appear and testify or cooperate in the investigation of the violation. 145-13 (King County 12-94) 4.18.080 REVENUE AND FINANCIAL REGULATION ' 2. The results of the investigation shall be reduced to writt=n findings of fact and a finding shall be made that there either is or is not reasonable cause for believing that a violation has been or is being committed. If a finding is made that there is no reasonable: cause, said finding shall be served on the complainant and respondent. Within thirty days after service of such negative finding, the complainant shall have the right to file a written request with the administrator asking for reconsideration of the finding. The administrator shall respond in writing within a reasonable time by granting or denying the request. H. If the finding is made initially or on request for reconsideration that reasonable cause exists to believe that a violation by a .contractor or subcontractor has occurred, the administrator shall endeavor to remedy the violation by conference, conciliation and persuasion, which may include monetary compensation, the creation of additional opportunities for minority or women's utilization on other contracts, or such other requirements as may lawfully be agreed upon by the parties and the administrator. Any settlement agreement shall be reduced to writing and signed by both parties. An order shall then be entered by the administrator setting forth the terms of the agreement. Copies of such order shall be delivered to all affected parties and the original thereof filed with the division of records and elections. If no agreement can be reached, a finding to that effect shall be made by the adr~inistrator and incorporated in a preliminary order, with a copy thereof furnished to the complainant and the respondent. The preliminary order shall also include: 1. A finding that a violation has occurred; 2. The basis for such finding. I. In the case of failure to reach an agreement for the elimination of such a violation, and upon the entry of a preliminary order, the complaint and any and all findings made and remedies ordered shall be certified by the achministrator to the office of the King County hearing examiner for hearing. A hearing shall be conducted by the office of the hearing examiner for the purpose of affirming, denying, or modifying the preliminary order. The hearing shall be conducted on the record and the hearing examiner shall have such rule making and other powers necessary for conduct of the hearing as are specified by K.C.C. 20.24.150. Such hearings shall be conducted within a reasonable time after receipt of the certification. Written notice of the time and place of the hearing shall be given at least ten days prior to the date of the hearing to each affected party and to the administrator Each party shall have the following rights, among others: 1. To call and examine witnesses on any matter relevant to the issues of the complaint; 2. To introduce documentary and physical evidence; 3. To cross-examine opposing witnesses on any matter relevant to the issues of the complaint; 4. To impeach any witness regardless of which party first called him to testify; 5. To rebut evidence against him; and 6. To represent himself or to be represented by anyone of his choice who is lawfully permitted to do so. J. Following review of the evidence submitted, the hearing examiner presiding at the hearing shall enter written findings and conclusions and shall render a written decision and shall order one or more of the following: 1. Dismissal of the complaint when a violation is found not to have occurred; 2. Suspension or cancellation of the contract in part or in whole; 3. Disqualification and/or debarment of the violator from participation in county contracts for a period of up to five years; (King County 12-94) 145-14 MINORITY AND WOMEN'S BUSINESS ENTERPRISES 4.18.080 4. Exclusion of the violator from future contracts Or vending until demonstration of compliance; 5. Enforcement of any provision of the contract providing remedies, such a~ penalties or liquidated damages for violation of contractual provisions, or enforcement of any other remedy available under the laws of King County. Upon a finding by the hearing examiner that a cont~actor has in fact failed to perfor~ a cor~ercially useful function or has operated as a broker, front, conduit or pass through business, liquidated damages specified in the contract shall be imposed unless the hearing examiner finds that iraposition of such damages would be clearly inequitable, in which case the hearing examiner may order appropriate relief. K. If a finding is made that there is reasonable cause to believe that a contract-awarding authority has committed a violation, the finding shall be forwarded to the county executive, who shall review the evidence and shall order one or more of the following: 1. Dismissal of the complaint when a violation is found not to have occurred; 2. Corrective personnel action; 3. Disqualification and suspension of authority of all members, any board, co~ssion, or other body constituting the violating contract awarding authority; 4. Enforcement of any other remedy available under the laws of King County. . L. Upon receipt of a written and signed allegation that a business owner is improperly being considered to be, or has improperly been rejected as, a minority business or women's business as defined in this chapter, or that a waiver or reduction of set-aside requirements has been improperly denied or granted, or if such information is discovered from information gained through compliance monitoring, the director shall order that an inve~tigation be conducted by the administrator. The pendency of such allegations or of subsequent hearings on such allegations shall not be grounds to postpone or restrain the award of any contracts then being advertised or for which bids have been received. If there is reasonable cause to believe that corrective action is warranted, the director will, upon ten days written notice to all interested parties of whom he/she is aware, and upon publication of notice of the hearing in the manner provided for the advertising of contracts, conduct a hearing to determine whether or not the allegation is correct. The hearing shall be recorded and each interested party shall have the right to call and examine witnesses, to produce documentary and physical evidence, to cross-examine witnesses, and to be represented by anyone of his/her choice lawfully permitted to do so. The hearing officer designated by the director shall permit testimony to be given by any parties which would be directly affected by the matter, and a representative of the executive or agency conducting the investigation. After the hearing, the director shall make findings and conclusions and shall order appropriate corrective action, if any. M. In addition to any other remedy available under the laws of King County and the State of Washington any person, firm, corporation, business, union, or organization which prevents or interferes with or retaliates against a contractor and/or subcontractor's efforts to comply with the requirements of this chapter or which submits false or misleading information ~o any King County department or employee concerning compliance with this chap'~er shall be subject to a civil penalty of up to five thousand dollars for each occurrence, King County having previously complied with the notice and hearing provisions of this chapter. Each submission of false or misleading information shall constitute a separate occurrence. (Ord. 10049 § 3, 1991: Ord. 9609 ~ 8, 145-15 (King County 12-94) 4.18.080 - 4.18.105 1990: Ord. 8937 ~ 6, 1989: 5983 ~ 8, 1982). REVENUE AND FINANCI>%L REGULATION Ord. 8313 ~ 4, 1987: Ord. 7789 ~ 6, 1986: Ord. 4.18.090 Annual ~po~ zeciui~ea. The administrator shall submit an annual report to the executive detailing performance of the program by April 15 of each year. This report shall be forwarded to the council no later than April 30. The report shall include: A. Statistics, and narrative where appropriate, demonstrating the utilization of minority and women's businesses by department, contract category, and the county, overall; Bi' Statistics, and narrative where appropriate, demonstrating the number and type of waivers granted; C. Explanations of any investigative actions taken by office of civil rights and compliance regarding the implementation, monitoring and enforcement of this chapter; D. Descriptions of any problems in the implementation reported by the department, including proposed solutions; E. Recommendations, as appropriate, regarding amendments to this chapter; F. Proposed utilization goals, as necessary. (Ord. 9609 § 9, 1990: Ord. 7789 ~ 7, 1986: Ord. 5983 ~ 9, 1982). 4.18.095 Graduating fiz~s out of program. A. The office of civil rights and compliance is directed to prepare a recommendation to the council on a methodology and plan for graduating minority and women's businesses after a certain number of years of certification or level of income above that used for state certification. The executive shall submit such a recormnendation by June 30, 1995. B. Joint data base. The office of civil rights and compliance is directed to study and prepare a recom~endation to the council on establishment of a joint data base with one or more other local agencies for the collection of availability and utilization data. The executive shall subnlit such a recommendation by April 15, 1992. C. The methodology and plan shall include specific objective criteria and timeframes for reviewing minority and women's business enterprise participation in King County's remedial program and determining when and under what conditions individual firms shall be graduated from King County's remedial program. (Ord. 11564 ~ 5, 1994: Ord. 10049 ~ 4, 1991: Ord. 9609 ~§ 10-11, 1990). 4.18.100 Au~horiz&tion to 4~,,lement pro=edur~a. The county executive shall implement such forms, administrative processes, and operational procedures as are necessary to comply with the provisions of thi.s chapter by February 1, 1988; provided that such forms, processes and procedures shall be promulgated in compliance with Chapter 2.98; Rules of County agencies, with the exception that administrative rules and regulations related to this chapter shall be submitted for review by the administration and justice committee (or its successor committee) fifteen days prior to filing with the clerk of the council, the provisions of Chapter 2.98 notwithstanding. (Ord. 8318 ~ 5, 1987: Ord. 7789 § 9, 1986: Ord. 5983 ~ 10, 1982). 4.18.105 Im~l*,---nt&tion resources. This chapter shall be implemented within the current level of resources allocated to the office of .civil rights and compliance. No additional staffing shall be considered unless the office of civil rights and compliance implements the county auditor's recommendations to streamline its operations and demonstrates the need for additional staffing (King County 12-94) 145-16 MINORITY~%ND WOMEN'S BUSINESS ENTERPRISES through the use of relevant workload indicators (Ord. 9609 ~ 12, 1990). 4.18.105 - 4.18.13D and appropriate analys,is'. 4.18.110 E££e~t o£ ordinance, st&tu, o£ soZici~ionm. Each of the provisions of this chapter shall apply to all contracts for which a solicitation is released after the effective date of that provision of this chapter. (Ord. 8318 ~ 6, 1987: Ord. 7789 ~ 9, 1986: Ord. 5983 ~ 11, 1982). 4.18.115 Effeotive ~e. Sections 4.18.010 and 4.18.080 of this chapter shall take effect on January 1, 1988. Ail other sections of this chapter shall take effect as provided in the King County charter. (Ord. 8313 ~ 7, 1987). 4.18.110 Sever~ilit~. The provisions of this chapter shall be effective in all cases unless otherwise provided for by State o~= Federal Law. The provisions of this chapter are separate and ~everable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this chapter or the invalidity of the application thereof to any person or circumstances shall not affect the validity of the remainder of this chapter, or the validity of its application to other persons or circumstances. (Ord. 8513 ~ 8, 1987: Ord. 7789 ~ 10, 1986: Ord. 5983 ~ 13, 1982}. 4.18.130 Study and ~eport. The county executive is authorized and directed to enter into a contract with a qualified consultant to study the discrimination against minority and women's businesses in the market areas from which King County draws contractors and to recommend any appropriate changes in King County's minority and women's business program or other ordinances. The county executive shall report the results of this study to the county council on or before August 31, 1989. (Ord. 8937 ~ 8, 1989). 145-17 (King County 12-94) I I/8/9.~ Introduced D) Ron CAJ:c) mwb~cJn2 Proposed No.: 95-663 5 AN ORDINANCE relating to thc county's m notify and 6 women's business enterprises program, repealing Ordinance , 7 5983. Sections I. as amended. 2. 4. as amended. 5, as 8 amended, 6. as amended, 7, as amended. 8, as amended, 9. as 9 amended, and 10, as amended, Ordinance 9609, Sections 3 10 (pan), 4, 10 and I I. as amended, and 12. Ordthance 8937, Section 8, and Ordinance 8313, Section 7. and 12 K..C.C. 4.18.010. K.C.C. 4.18.020, K.C.C. 4.18.030, 13 K.C.C. 4.]g.040. K.C.C. 4.18.050. K.C.C. 4.1 $.060, lq, C.C. 4.18.070, K.C.C. 4.18.080, K.C.C. 4.18.090, 15 K.C.C. 4.18.095, K.C.C. 4.18.100. K.C.C. 4.18.105, 16 K.C.C. 4.18.115 and K.C.C. 4.18.130, and adding new 17 sections to K.C.C. 4.18. 18 RE IT ORDAINED BY THE COUNCIL OF KING COUNTY: 19 ._ ~,,.[I.O.N__L. Ordinance 5983, Sections I. as amended, 2, 4. as amended, 5. as 20 amended. 6, aa amended. 7. as amended. 8. as amended, 9. as amended, and I 0, as 21 amended. Ordinance 9609. Sections 3 (part). 4, 10 and I I, as amended, and 12, Ordinance · 22 8937. Section g. and Ordinance 8313. Section 7. and K.C.C. 4.18.010, K.C.C. 4.18.020. 23 K.C.C. 4.18.030, K.C.C. 4.18,040. K.C.C. 4. I 8.050. K.C.C. 4.1g.060. K.C.C. 4.18.070. 24 K.C.C. 4 8080 KCC 4 8~' "~- ....... v:'v, K c- LC. 4.18.095, K.C.C. 4.1 g. I00. K.C.C 4.18.105, 25 K'C.C. 4.18. l 15 and K.C-C. 4.18.130 are hereby repealed. 26 NEW SECTION. SECTION 7. There is added to K.C.C. 4.18 a new section to read 27 as follows: 28 29 30 31 32 .33 Definitions. All words shall have their ordinary and usual meanings except those -defined in this section which shall have in addition, the meaning set forth below. In the event ofconfi!ct, the specific definition spelled out below shall presumptively but not conclusively, prevail. A. #Admimstrator shall mcan the manager of the minority and women's business enterprises and contract compliance division. ,026 B. "Affirmative Actmfl Plan" shall mean the written, torrnai county policy adopted 2 annuallv stat ng the goals and programs of county government to be performed in the 3 =teas ol contract compliance, equal employment opponumty and minorHy/women's 6 faith to contact and contract with minority/women's businesses. Where affi~rmative et"tons 7 are required by, or aro grounds for, waiving provisions ofthis chapter, the administrator'~ 8 determination shall be based on procedures to be outlined in accordance with thc dictates 9 or'this chapter. I0 D. "Agency Contracts" shall mean those nonuants not sub)eot to the usual I I competitive procurement requirements and which result in the provision of services to. 12 county residents such as legal public defense, mental healOL and dsug and alcohol 14 E." ' ' Architectural and Engmeenng Comtacts" shall mean contracts for the 15 performance of a~hitectural and engmeenng sorviees by licensed and registered lqtms and 16 petsous acting as consul~,~ts to the county, 17 F. "Broker" shall mean a business which purchases goods or services from another 18 business or businesses for the sole pmlx~se of resale to the county or a contractor 19 business with the count),. 20 (3. ~Cenifination1, shall mean the process by which the Office o£ Minority end 21 Women's ' · - Busmesses ot'~e State o£ Washington determines a business meets the criteria 22 trot a minority. Owned business enterprise, a women-owned business enterprise, and/or a 23 combination minority and women's business ente~rise as set tot:th in WAC chap. 326-02 24 _a~d WAC chap, 326-20. 25 H. "C ' ' · · omb nauon Minority and Women Business" m~ns a business certified as a 26 combination minority and women's bnsin~s enterprise by t~e Office of Minority and 27 Women's Businesses of the Stste of WaShington which is 50% legitimately owned and 28 controlled by minority males or minority businesses as defined in this chapter, 29 I, "Commercially Useful Function" shall mean the pen'ommnee of real and actu~d 30 services in the discha.-ge of any contrantual endeavor. T~e contractor must pett'orm a 2 ]0 14 15 Ig ~9 2O 21' 22 23 24 26 27 28 5 6 7 8 9 12026 responsibility of actually performing, managing and supervising. In determining whether a Ihe IoUow~ng. will be considered: I. Whether the business has the skill and expemse to perform work for which ~ is bcth.~has been certified; 2. Whether the business actually performs, manages and supcrvis~ thc work for which il is being/has been ccmfied; and 3. Whether the business purchases goods anti/or scmces from a non- minority/women's business enterprise and simply resells goods to the county, county contractor, or other person doing business with thc county/'or the purpose o£aIlowmg those goods to be counted toward~ ~ulfillment ofmthontytwomcn's business enterprise utilizauon goals. J. "Concession Cootxacc~" shall mcan those conh'acmal arrangements t'or the sale of foocl.-bevemges ad/or items o£pcrsona] property at any facility owned and/or managed by the county. K. "Conduit" shall mea~ a minority/women's business with which a contractor ha~ agreed to subcontract, when ~¢ minority/women's business does not per/.orm the subcontract, and instead thc subcontract is petfolllled by a non-minority/women's business. L "Contract Awarding Authority" shall mean an), person with the power to enter into a contractual arrangement binding the county and shall also mean the particular office:, agenc? or division on whose b~halt'~he contract is entered. In addition, this term shall include, but shall not be limited to heads o£eounty departments, divisions or ofliccs. M "Contractor" shall mean any person` parmcrship, corporation, or other type of business entity which has a contract with thc county, or serves in a subcontracting capacity with an entity having a con~ract with the county for thc provision o£goods and/or services, including but no( limited to constdtant, Professional, non-professional and t¢ch. nical services and public work. N. "Depanmem' shall rc£cr to any department as defined by county ordinance or other applicable law and shall include all county agcncias not associated with a dcpanmem. 6 7 8 9 l0 Il 12 13 14 15 16 17 18 19 20 21 22 23 24 2~ 26 27 28 29 30 These agencies shall s~mllarly discharge those duues this chapter rcqusres of dep: 'qent~ and shall include the coumy prosecuting attorney, the county assessor, and the count)' council. O. "Director" shall mean the directors o£executive departments and chiet' ol'ficers o£ P. "Front" shall mean a business which purports to be a rninonty~w~men's business but which is actually owned and/or controlled in a manner which is inconsistent with the requirements of certification. Q. "Joint venture" shall mean an association o1' two or more persons, pannetships, coq~orations or any combination o/' them, cstoblishcd to can3, on a single businas~ activity which is limited in scope or direction. The degree to which a.ioim venture may- sittisfy relevant utilization goals cannot exceed the proportionate interest of the mthority/,women's business held as a member of thejoim venture in the work to be p~rfotrned. The agreement eslabiishing the joint vemute, penn,ship or other multi-entity' relatiotu;hip shall -be in writing. Further, rninonty/women's pamcipation in ajoim venture shall be hosed on the sharing of teal economic interest in the venturo and shall include proportionate control over management, interest in capital acquired by the joint venture, and interest in earnings. R. "Legitimately' Owned and Controlled" shall mean for the purpose o£detstmining whether a business is a "roinonty business" that minorities shall possess: I. Ownership of at le~t tif~y..one pement interest in the business, unless the minority business qualifies as a cot!oorete sponsored dealership under the provisions of WAC 326-02-030. The ownership shall be mai and continuing, and shall go beyond the pro lrotma ownership of the business refleeled in the ownership documents. The roiinor(~ _owner(s) shall enjoy the customary incidents of ownershipand shall share in the risks and pro'ts commensurate with their ownership interest, as demonstrated by an examination of the substance, rather than the form, ol'an'angemants. 2. Control over management, interest in capital, interest in profit or loss and comnbutions to capital, equipment and expertise on which the claim of minotity,-ovmed stants under this chapter is based. The minority owners must possess and exercise the legal power to direct the management and policies of the business and to make day-to-day as 4 2 l0 12 ~3 14 ~5 16 l? 19 20 21 22 23 24 26 27 29 .3O 12026 The requirements of this subsection R.2. shall not apply, if the minority business qualifies as a curporaie sponsored dealership under the provisions of WAC 326-02-030. 3. Ownership and control shall be measured ~ though not subjecl.to me b. The nonpamcipatmg spouse relinquishes control over his/her communir~y RCW .35.58.050. approved by the voters;and assumed by the county pursuant to RCW 36.56.010. T. "Minority Business" means a business certified by the Office of Minority and section and which has previously sought to do businass in King County. The executive is their ownership and/or operauon of particular trades or areas of business in King County. The executive may exclude such businesses ti'om consideration as "minority businesses" as provided in Section 9 of this ordinance. resident of the United States and who is a member of one or more of the following historically disadvantaged racial groups: I. Black or African American: Having origins in ~y of the Black racial groups of Africa; 2. Hispan~:: Of Memcan. Puerto Rican, Cuban, or Central or South American I 4 7 10 12 13 14 15 16 I? 19 2O 21 23 24 25 26 27 2g 29 3. Asian America: ~avlng origins in any of the origina~ peoples of the Far 'East. Southeast Asia. the Indian subcontinent, or the Pacific Islands: or 4 Amcnc~q Indian or Al~k~ Native: Having origins m any of the o['tginal peoples of North America. '~e cxccutive shall have disc~tion to m~e a final decision individual is a minority. V. "Nonp~t Co~tion" shall me~ a co~tion o~i~d pufsu~l to RCW Ch..24.03. In the c~e o~nonpto~l co~tiom org~ized under the laws c,[a s~te o~er lh~ Wuhington. a nonp~fit co~tion s~l m~ one org~i~d for one or mo~ of the pu~oses ~t fo~h in RCW 24.03.015 ~d mmin8 thc definitio~ in RCW 2403.005. W. "P~-~mugh".m~ ~ying or ob~ining go~ tram a non-women's busine~. non-mino~ty b~in~s or n~-combi~on ~m~no~ b~in~, ~d ~elling or ~femng tho~ 8~ m ~e cowry. ~ con~cto~ or o~ ~m doing b~in~ ~& ~e co~ for ~e p~ ofo~g ~y ad--ge or ~ne~t co~ under c~ptet. ~thout peffo~ing a ~i~ly ~1 ~ction. X. "P~mge Factor" s~l m~ ~e ~i~ ~ing f~o~ established b~ ~is c~tet to ~ a~lied in ~n com~ bid si~fions ~ mino~/women's b~in~ ~nd to ~licim~on ~ ~ incl~ ~ ~n~cu in ~n~ng pm~ies' ~es to soli~mtion. Y. *Public Wo~ Con,ca" s~l i~l~ all ~ co--etlon. ~fion. or impmv~mt o~er ~ o~i~ ~nten~ce. ~ted at ~e =ost of&e county. ' Z. "R~nding P~" s~ m~ ~y ~o~ ~m~p. co,option or bt~ine~ _m~ty which ~es a pm~ u defin~ in ~s ~pt~ in ~onse defin~ in ~s c~p~. AA. "So,icc Con~' s~l m~ ~ose ~n~cmai p~u~ent of all s~ic~ incl~ing ~ ~. pmf~io~, t~l. ~d co~ul~t se~ices. Co~ul~nt ~ic~ s~l[ inci~e leg~ s~c~ pm~d~ to ~e cowry but shall not include ~hit~m~[ ~d engin~dn8 con~c~ M defined by ~ c~pIer. 6 lO 11 14 15 16 17 18 ~9 20 21 24 25 26 28 .30 12026 BB "$¢t Aside" shall mean Ihat proporl~on o£ each contract which p3~tlCi~atlOn Of mlnorny~women s businesses as eslablished by th~s cllapler C'C. "Small Bus~ness Concern" means a small business as dctinca Dursuanl S¢C[ItUI ~ ot the federal Small Business Act and relevant regulations promulgated there~:o DD. "Solicitation" shall mean a contract awarding authorlty's request tbr thc ,rovision o/'any one or more of the following: goods and services of any kind. equlpmem leases, and rentals/purchase o£space. Solicitation shall include requests for proposals. mvilat~ons to bid and similar teems. "Solicitation specifications," shall mean any documents, literature ~r other inlbrmation accompanying a solicitation which provides additional data regarding the contract awarding authority's request. EE. "Tangible Personal Property Conuacla" shall mean. but not be limited to. those contracts which are awarded by ~he county for the purchase of equipment, supplies, materials, goods and roiling stock (revenue producing buses, vans, cars. railcars, lOCOmotives, and trolley cars and bases}. FF. "Utilization Goals" shall mean those separately designated annual goal,,' for thc: use by Ihe county o£ minority/women's businesses. The goals shall be expressed as a numencat percentage of the to~J dollar value o£all contrac~ to be awarded by the county. These goals shall be applicable to businesses organized for profit, along v,4th governmental agencies and quasi-governmental agencies, unless thc agencies are specifically excepted by or in accordance with the provisions of this chapter. GG. "Utilization Requirements" shall mean those efforts which the responding om-ties, the county and ~hc pa. mcular department shall make to meet the coun~,'s utilization goals, including but not Hmited to the percentage factors and set aside r~quircments _eslablished by this chapter. HH. "Violating Party." shall mean a person or entity, which has violated a provision or provisions of this chapter. 11. "Waiver Statement" shall mean a wrstxcn statement directed to the admimstrator comaming reasons why any provision or provisions of this chapter shall not apply to a particular person, pannership, corporation, business entity, contract awarding authority, nepanment, or other enttr,.. Where a waiver or waivers are granted, the utilization goals ? Il 14 17 Ig ~0 24 12b 6 sJlall bc appticd ~n a manner so as to reelect thc loss of {he monetam,' value of {hose contracts exempted from the requisttes or' th~s chapter. JJ. "Women's Busmess" means a business certified by thc Ot'~cc ol' Minority and ~.Vonlen s Businesses ol' the State of Washington as a women's bus~ncss enterprise anci which has prevtously sought to do business in K. ing Count)'. The e~ecutivc is authorized to determine that women as a class have not been discriminated against in their ow~er.'shJp and oporetion of particular trades or ~ of business in K. ing County. The executive may exclude such businesses t'tom consJderetion as "women's businesses" under this chapter, in connection with contracts involving such erodes or areas of business, according to the procedure provided lot in Section 9 of this ordinance. NEW .(::~:(~TION SECTION '~ There is added to lC.C.C, 4.18 a new section to/cad as follows: Powers and duties. A. In addition to the powess and duties given to the execu~!ive _cis, ewhe/c in this chapter, the executive al'adl, through the adminismator, have/cSlx)nsibilit7 tot administering, monitoring and enforcing the goals and requirements identified in t~is chapter. B. The adminL1a=4tot shall: ' 1. Establish ndas, regulations, and procedures for implemenung and administering tiffs chapter, 2, Recommend to the exectrdve annual utilization goals for the county; 3. Have the authority to entot into cooperative: alzmcrncnts with other government a~enciec concerned with inctensing the panicipadon of minority/women's businesses ia government contracting; _ 4. With the advice or'contract awarding authorities, fotmuJate and periodically update a plan to make nUnomy/women's businesses aware ofconnacting opporttmities with the county; and 5. Review all count,/solicitation lists and whose possible, place minoti~/women's b~inessea on such lists. T~? lists shall be updated peciodiMJly. NEW SECTION. SECTION 4. There is added to K.C.C. 4.18 a new section to,/cad as follows: 8 1202(; Ulillzallon IEoals. Upon the completion or-the disparity study cai ed for tn Ordinance 4 approval proposed utilization goals [or the county for the [o[Iowtn~ I~ v~r p~rlod. 5 Separate utili~t~on goaJs shah be established ~or th= use of minority businesses and for the 6 use of women's b~inesses. These utili~tion goals shall be established sep~teiy for 9 The utili~tion goals shall be t~nsmiaed with the m~nori[y ~d women's business I 0 ente~rises ~d contract compti~ce division's a~ual repoa to the council for approval. Existing utih~non goals shall r~mam in effect until newty submined ones rective 12 council approval. 13 A. The utili~tion goals shall be re~onably achievable. To the extent that relevant 14 info,etlon is available, the utili~tion goals s~ll be b~ed on the following factors: 15 I. By con,ct catego~. ~e number offi~s certified by t~ State O~ce of 16 Minority ~d Women's B~iness Ente~dses. s~king to do b~iness wi~ th~ county ~ 18 2. By con,ct catego~-, th= tolal number offi~s seeking to do business with 19 the county ~ either phme or subcontmctom; 20 3. By con,act catego~, the geographic ~ea ofcomptntmn; 21 4. By contract categom-, the capacity an~or capability of c~nifitd minority ~d 22 ~om*n's businesses seeking to do business with the co~ty comp~ed with the capacity 23 ~or capabiliD, of non-minority ~d non-women's b~inesses s~eking to do business with 24 [h~ county; 25 5. By commct catego~., t~t n~ber of minorities ~d women wi~ requisite 26 skills in rela~ed occupations; 27 6. By contract cat,aox, the a~ative action goals for minohti:s ~d women 30 related trmning, educational fields, and occupations; 6 ? 8 9 I0 II 12 13 I$ 16 17 18 20 21 22 23 24 26 27 28 120 6 B Th= 1011owing goals shall be the annual goals £or all depat~menL~ until such A~hi~ectut~Engineenng 17% I 0% Conce~ions 10% Public work i 4% 8% Se~ice 6% 15% T~gibl~ personal prope~/ 10% 3 % NEW ~ECTION ~EC~ON ~. ~ere is ~ded ~o K.C.C. 4.18 a new section to read u follows: A~eompi~hmeat of utii~on ~ A. For all con~e~, aecomplis~em of ufili~tion goals e~biish~ by ~s c~pter s~l ~ ~ed on ~e doll~ ~o~i or~e con,ct in question. Accomplis~em oFthe g~s ~l be ~cul~ed in ~e follo~ng I. ~n~l - ~e doll~ ~alue or~y ~d ~1 con~ a~ by a con,ct a~ing au~on~ to a mino~W/~m~'s b~in~s s~l be co~ed to~ accomplis~ent or,he applicable u~ili~tion goals. ~ ~e to~l doll~ ~lue of~h con,ct a~d~d Io b~in~ses o~ed ~d con, lied by ~h mino~y males ~d non-mino~ fe~les s~l ~ ap~oned on ~e b~is or~e ~8e o~o~e~hip ~o ~e u~li~tion go~s for ~no~es ~d ~men ~s~vely. b. ~e to~l doli~ v~ ora con,ct ~ a mino~/~men's b~s o~ed ~ ~n~lled by mino~ ~men s~l ~ eider co~ted'~o~ ~ minon~ u~l~tion g~l or Ihe 8o~ for wome~ or ap~on~ on ~e b~is of o~en~p ~ mmon~i~ ~d 10 4 8 9 I0 13 14 I$ 17 ~9 '~0 25 26 2? '~9 .10 12026 businesses, thc amount v,'hich is given to thc minonty/women's busincs~ for their work on ~hc comract shall be credited ~ow~ds meeting ~e applicable utiJiz~non goals. 3. Joint Ventur:,~. Where one or more minon .r,,/women's businesses utilization goals. a. expeadi~ures for materials and supplies obzathed from mmon~'/women'$ the actual and contractual respousibiii .t), for ~e provision of the materials and suppiles: b. its entire expenditure made to a mthofity/women's business manufacturer; thar'~s, a supplier that produces goods from raw materials or substantially alters them before c. the amoun! of the commis~on paid to rainority/women's businesses and resulting from a particular- COnb*act with the county; provided that a m/nonty~women's bus/ness supplier performs a comme~iaiiy useful ~unction in the process~ 5. Btoker~ - Fronts - or Similar Pa~'~-Thmugh A~n.~,,,~ll{1 . Businesses acting as brokers, fronts, conduits or sirniJa~ pass-th.~ough anangcments shall not be certified a~ minor~ty/womea,s busiae~ ~nterpttsea. unless the brokering service tefl¢¢~ normal indusb'T practice and the broker perfon'us a ~omrnercially useful fi.~cfion. Such businesses _determined to be acting under these arrangements or pet~ons who create such arrangemenL~ shaU be subject to the penah, ies enumerated in ~s chapter. B. The administrator shall calculate ~¢ accomplishment of utilization goals for the county, in the event of disputes regazding ~ese calculation, a dedattment may r~quest review o£U~ admthJslzatot's decision by the executive. C. A~et having me! their annual utilization goals, depanmnms shall conunue to make aflirmati;,¢ el'forts to do busines~ With minot~ty~women's businesses. t 6 7 8 I0 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 26 C). 'lq~e laiJure of a department or thc county to meet the annual dol~ :iiz~t~on established l~om time to time by this chapter shall not constitute grounds fo~ . Lawsuit against a department or thc count:,., pm','ideci that the department or the cot.. nas made affiI'rnatlvc etlbrts to meet those goals. T~e ~'ailute ot'a department to meet the requtmmems of this chapter shall be reviewed by the executive and corrective action taken where appropriate. N£'~' SECTION SEC~T[ON 6. There is added [o K.C.C. 4.18 a new. section [o read as follows: Ufi!ization requirement1, generaL In order to mint the utilization goals established in accordance with this chapter, efforts includin8 but not limited to thc £ollowim: shall be I. Thc adminiltrator shall design a tecbolcul assistance, business davelopment and outreac~ program. This program shall include the following clements: a. A count-wide, industry-wide, regularly-scheduled contractor orientation ptolp'arn to promote compliant: with and undcTstandin& o£th¢ pro'visious o/'this chapter and '-K.C.C. 12.16; b. Fea~bie options for bonding, insurance, and banJcing assistance for minority-owned and ',,,omen-owned businnsses; c. A county-wide pmgrar~ designed to assist depatunents in enhancing opponunitics for nUnOri~-owned and women-owned businesses; d. A fully-developed and mmnta~ned te.lot.uce llst. to include all available rnsoumns state-wide for minority-owned and women-owned businesses; and e. Such other program options as would serve to assist minority-owned and women-owned businesses in ovetcomin8 the bamers o£past and present dL __~Lminatinn. _ ~ In conjunction with the adminJslrator, each division wi0tin each dcpax~ent shall annually ferm~axe a plan for ar..hicving the pu~oscs oft. his chapter, which plan shall be submitted to thc edmin~'tratot for review. Each plan should include a fomca.~ of cunn'acts to be admi~stered by the division, including estimates ofthe number, probable monetary value, if known, and tTpc of contr,~cta to be awardecL and the nsumated solicitaUon dates. In addition, each plan should include methocis and suggestions for encore'aging the development and panicipatinn by fvl~rBs in such contracts. 12 3 6 7 8 9 l0 12 14 15 17 19 2I 23 25 26 27 3O 12026 to enhance the possibility of patxtcipauon by mmorityiwomeffs businesses. which subcomractors may be used. responding pa.r[ies shall make good faith affirmalive efforts to contact, solicit bids and proposals from, a.nd use mthonty/women s businesses. 5, The following shall be included in the body 'ffthe contract document in any and alt contracts signed ber, veen the county and a con~xactot: a. A provision ~ndicatmg tl'~t I~s chapter is incorporated by reference inlQ ally and all county contracts and failure to comply with any of thc requirements of the chapter by a contractor will be considered a breach of conu'act. b. A requirement that during the term oftbo contxact the contractor shall comply with, as to tasks and proportionate dollar amotmts throughout the term of the contract, all requirements for lhe use of minority/women's businesses. In the absence ora the conU'act or the contxactor shall be replaced with other certified minority/women's businesses in accordance with procedures established by the administrator. c. A provision prohibiting any agreements between a responding p~. and a mthonty/women's business in which the mmorttyiwomen's business promises not to provide subcontracting quotations to other responding or potential responding parties. d. The requirement of rnammnance of relevant mc6rds, and irfformation _necessary to document compliance with this chapter and the contractor's utilization of minority and women's businesses in its overall public and private business activities, and shall include the right of the county to inspect such records. e. A provision requiring the payment of specific liquidated damages in the evem a contractor fails to perform a commercially-useful function and~or operates as a broker, front, conduit or pess-thmugh, with thc amount of liquidated damages established in advance by the administrator based on the type of contract revolved. The provision should 13 3 4 ? 8 10 12 14 I$ 16 17 18 19 2O 23 24 25 2'/ 28 29 include Ihe Ibilowing language: The puq~osc of King County's m~nonly~women's business ordinance is to provide a prompt remedy for the effects of pa~t discriminauon, The county ~n general and ibis ptogran~ m particular, a~c damaged when a contract, or pomon ora contract. tO be perthrmed by a minom?women's business ~s not actually pertbrmed by a minonty~women's business ente~fise in compliance with K.C.C. 4.18. Because the actual amount of such damase is not tensunably calcuisble, the panics agree and stipulate that liquidated damages equal to the dotia~ value of the u~lization by certified and recognized businesses lost to thc coLm~y due m the violation, not to cxccnd 10 pc~c~-nt of~c dolla~ ~.alue of the conu'ac~ shall be the amount tequi~-d to compensate thc county for resulting delays in canting out the purpose of the program, the costs of meeting utilization goals tluough additional conUncL~ the admi~'Ir~tive coals of investigation encl enforcement and other damages and costa caused by the violation. The conU'actor shall be liable to the county for such liquidated damages in the event thc contractor or a subcontractor fails to pcrform a _commercially uscRd function and/or operates ns a front, conduit or p~ss-through, as defined in K.C.C. 4.18. NEW SECTION SECT'tON '/. There is added to K.C.C. 4.18 a new section to read as follows: Utilization requirements, specific ^. In order to expedite achieving of the utilization goals established in acco~ancc with this chapter, thc following utilization requlrementa shall app,., to ail competitive bids and other responses to solicitation: I. For ail tangible pereomd prope~/, service, and co~,'~,ion contracts and all architectural and engineering com~act~ co~-ultant conU-ac~ and public work conu'a~s under ten thousand dollars, the administrator shall determine a percentage factor appropriate to - offset the · ffecta of disc~mination in the indusuT involved, which pe~ente~c shall be used in determining which responding pany is the lowest rcsponsible bidder or ~:-est proposal: a. Ruspond~ng panics whose bids arc w~th~n the p~,c. emage factor of'the best proposal or thc bid made by the lowest bidder shall be ranked in thc following order: Fi~'L minori~//women businesses which will perform the entire conU'act unassisted and those minori~T~,'omcn's busin-___~__ which will exclusively usc 14 12026 6 Third. non-minonw/non-.women's businesses which use inmont?women s I 0 minonty/womcn's businesses as subcontractors, suppliers, or in similar asstsdng roles to the 12 b. All responding parties within each particular razfldng shall be grouped 13 according to the amount of their bid or the evaluation score of their p, mposal as dctcrrnincd 14 by th__e conuact awarding authority, with iow bidders and higher scoring proposals receiving I 5 the highest priori~. The lowest bidder or higher scoring proposal within thc highest ranking 16 catego~, shall be awarded the contract in question. 17 c. In determining the percentage factor to be used for a particular contract, the 18 administrator shall cousider the following factors: 19 (1) Price differentials between M/WBEs and non-M",VBEs on previously. 20 submined bids; 2I (2) Standard industry, costs; 22 (3). Standard industry profit mazgi~s; 23 (4) Availability. of M/WBEa to perform as retailers, dis~"ibutors, 24 .. wholesalers and manufacturers, by commodity area; aad 25 ($) Other pertinent facts. 26 d. Generally applied percen~gcs shall be determined by commodity ama. 27 2. For ever')., public work. amhitecrmal and engineering, and service con,'act the 28 following set aside requirements shall be met: 29 a. Contracts for public work. service and amhitecmmbenginecring services, the 30 esnmated cost of which exceeds ten thousand dollar, shall require r~sponding panics to 15 9 I0 11 12 14 I$ 16 I? 18 19 20 2l 22 23 24 25 26 27 28 29 2 3 12026 contract by the aflminis'u~tor. Thc adminisu-ator shall determine the percentages for each contract based on thc extent of subcontsaehng oppormmties presented by the contract and the availabi[iv,.' of minority and women's business entet~nsus qualified lo perform such subcontracting wonk. Such pememages may be higher or lower than the arm~al goals for the b. Wbere a contact is awarded to a minority or women's business which will perform at least twenty-five percent of'the work. the set aside requirements of these subsections shall not apply. c. To the extent practicable and except in extenuating or special circumstances, as determined by the administrator, responding parties shall identify the specific minority/women's businesses to be .,~,.,4 in performing the contract, the dollar _and/or percentage value of the participation, the work'to be performed by each minority/women's business, and other information reasonably ml~ted to detennining the responding parties' compliance with the county's minority/women's business rcquiremants. In detannining what information shall be submitted and when it shall be submined, the ndminislrator sha~l take into account the county's poli¢ic~ of mammizing opponuniries for minority/women's businnssus, simplifying paperwork requirements for bidders end propose~, and prohibiting bidders and proposers from shopping bids, proposals end offers from minority/women's businesses. d. During the term of the contract, any failure to comply with the percentages of minority/women's business pa~,3ipation required for the bid or proposal shall bc _cousidered a material br,~'h of contract. The dollar valu~ oftbe total conu'act used for the calculation of the set-uside shall be incomsed or dec~nsed to reflect executed change orders ( I ) a VaUver is obtained in accordance with Section g.A of this ordinance after cousuimtion among ~e contract awarding authority, thc adminis~ator and the 16 4 6 9 Il 13 14 15 16 17 Ig 19 2O 21 22 23 24 25 26 27 21) 29 12026 accordln$ to thc procedure tn Section 7.B of this ordinance. wtltin~ [o the administrator. infeasible al the adopted goal levels; or b. Qualified rmnon~ and women's business enterpnses capable of providing the goods or servmes required by the contract, are unavailable in the market area of the c. The available minority and/or women's businesses have given price quotes which ~re unreasonably high th that they exceed competitive levels beyond amoums which can be anributed to cover costs inflated by the present effects of discrimination. 2. Any mduction~ tn set aside amount granted by the adminisa'ator shall specify. shall be used for a particular type of comract, the method specified is the preferred method documents for a specific connect if it determines that a method other than the one established by Section 7 of this ordinance will be a more feasible method of achieving the annual utilization goal. In the event that a department chooses to use a method other than the one specified in Section 7 of th~s ordinance, it shall include in its annual report to the executive as reqmred by Section 9.D of this ordinance, documents demonstrating that a method other than the one established by Section 7 of this ordinance is a more feasible method of achieving the 6 9 I0 II 12 13 14 IS I? 19 2O 21 22 23 24 26 2'? 28 '~9 3O 12026 D. All solicirai~on documents shall include the applicable requirements or Sections 6 a.nd ? ot this ordinance. In addition, documents shall include a provision prohibiting any ~gr~mem between ~ responding party, and a minority/women's business in which thc mlnoniylwomcn's business promises not to prcvidc subcontrecting quotauons to other responding or potential responding parties. Bids. proposals, and otbet responses which rail meet the reqmremcnts or Section 7 or this ordinance shall, within the limitations of federal and state law, be dccmcd non-responsive tanicss a waiver has been 8ranted pu~&'uant Section 8 of this ordinance. E. The percentage factor and set aside t~quirement~ of Section 7 of this ordinance shall not apply to contracts awarded for the romaladcr of any calend~ year in which the conu-arct awarding authority is determined by the adminis~"atot to have met thc applicable county udliza~on goals as esmblisbed by ti'ds chaplet. The percentage faclor amd set aside provisions of Section 7 of this ordinance shall again apply in each succeeding calendar year until the annual utilization goals for tha~ yeas have been met by the contract awarding authority. F. For the K. ingdome toed and beverage concession con~acL the set aside method of achieving utit!~'*~t!on goals shall apply. G. The requimmants or' Section ? of this ordiuaaco shall cease to apply to conlzacts awarded by the county and its depa,-tments on D~c~,l,ber 31, 1997, unless reenacted by the council. N~W ~ECTTON RF_CTrloI~ R There is added to K.C.C. 4.18 a new section to read as £oll. ows: Waivers. Cona-ac~ awamiing authorities, along with or on behalt'o£respondthg parties _axl contractors, may apply for waiver of one ot more mClUimmeats of this chapter as they apply to a particular coa~ract or conlz'acts. A. $,Va~vets may be granted by the edmiaistretot in any of the following circttmsl,~neas; I. Wigan thc nc. cdcd goods amd .sc'~icas are readily available flora only one in which case the contracting awaxding authority shall, in addition to the requirements contained in K.C.C. 4.16, submit a wneea justification of thc need for sole source tte~'ncm 18 , 6 7 10 Ii 12 13 14 16 I? 19 20 :24 26 2? 29 30 12026 provided ~h¢ request ~s complete; -~. [:mergenc~es. In 'a..h~ch case emerg=ncy conu'ac[mg shall be handled in accordance ~th the requ~mmen~ of K.C.C. 4.16. 3. Cont~c~ for which neither a minon~ nor a womtn's business provide n~cd~d goods or se~'ices, in which ~e a waiver may be applied fo;'m accord~ce with proced~s to ~ deveio~d by the admi~tor. Prior to g~ting a ~ivet. the ~mimstmtor shall ceni~ ~t a minofi~/womeffs b~iness is in fact not avaiable to providt the herded goods ~or 4. Con~cm aw~dcd to non-profit org~i~tio~, govemmenm ~d gove~¢ntal otg~i~fions includin~ but not limited to m~icip~ co~omtio~, consom~s ~ociatio~ of gove~en~t agencies or o~ciats ~d agencies created by intcrlocal agmemenL ~ RCW 39.34, ot by op~don oldie or fede~ law; whe~ ~nding p~'s non-profit s~. o~p of~e co~omfion or o~et enti~ dete~in~. Hoover. ~lel~ ~ ~e exception o~con~ ~n ~ to~ whm ~e co~ is ~e ~ for fede~ or~te ~ds p~d ~ugh to such j~sdicfions. ~e ~ver s~l no[ extend to ~o~ ~fit-m~g con~ctom w~ch con,ct ~ ~c ~fe~nc~ ~n~g p~. 5. ~en av~iable ~no~ ~or womcffs b~in~es have given price quotes which ~e u~bly high in ~at they exc~ come,five tevels beyond ~o~ which ~ ~ a~buted to cover co~ inflat~ by ~e p~em cffecm of dJscfimJna~on. ~ a condition of ~tin8 ~y wm~r, ~c ~tor may r~ ~t con~to~ or ~c con,ct a~ding au~on~ m~c ~tive effo~ to ud[i~ ~no~ ~or ~mcn's b~iness~ in ~e B. ~erc ~c executive dctc~inm ~t ~c r~nabtc ~d neccss~ mq~menm of a commct render subcon~g or o~cr p~cipation of b~m~es o~ct ~ a ~nding ~ unfe~ibic, h~shc may g~t a ~v~ ~m ~e set Midc pmvisio~ PROVIDED ~AT. ~e ~v~ s~l not ~ ~ted after ~e solici~fion mqu~t h~ pubticly rcJ~ed by the con,ct a~ing au~onw; PROVIDED FUROR ~AT. soiici~tion specificatio~ s~ll s~te that ~e ~iver ~ b~n authon~d ~d ~at soticimtiom 19 4 6 7 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 ~eceived. proposing subcontracting or other pa~]cipation of busin: s other tha~ responding party, shall be rejected as non-responsive: PROVIDED FUR [ER ~.T. f'oliow~ng award of. the contract, should subcontracting or participation of businesses other than thc responding parLv become necessary., thc previously authorized waiver shall be null and void. The contractor iongt,nal responding party,) shall solicit both minority, and ~('omen busincss participation in a percentage which cquais thc contract awarding aut~ori~'s aAnual goal. C. lk'here the executive determines that complianc~ with the requirements of this chapter would impose an unwarranted economic burden on. or risk to. the county as compared with the degree to which the purposes and policies of this chapter would be furthered by requiring compliance, he/she may reduce oF waive the utilization requirements of this chapter, PROVIDED TI-tAT upon taking such action, the executive shall notifi,, the members of the council in writing and FURTHER PROVIDED, upon receipt of the not:ice, if' the council determines that the waiver does not meet the standards of'this section, the cc~uncil m~y by motion, within ten ,.~ork.ing days of'the receipt of the notice determine the waiver to be null and void, NEW SECTION. SECTION 9. There is added to K.C.C. 4.18 a new section to read as follows: Monitoring, reporting, and enforcement. A. The executive, through the administrator, shall have the responsibility for monitoring implementation of the r~luirernan~ of this chapter and shall have the power to request ~rom departments, responding parties salt/or contractors any relevant records, information and documents. B. Contract awarding authorities shall keep complete and detailed records regarding ¢omplianen with this chapter. The records shall include the dollar value and the subject ' mat~er of each contract along with the name of the contractor, the pani¢ipatiun levels (in ~lollars. number of cuntrac~s awarded, and type of work), of minority/women's businesses where the cuntrnet award provides for paniclpation, and other im'orrnation a.s the administrator' deems C. The administrator shall be responsible t'or gathering all information concerning compliance with this.chapter and shall have access to all pertinent county recaps. 2O 2 3 6 7 8 9 10 1 I2 13 14 15 16 17 18 19 2O 21 22 23 24 25 27 28 29 D. With the a. sslsta~cc 0[' the admintslrator, each dcpaxtmcnt shall suDmu to tile administrator an ~uai mpon on ets ~o~ce m m~tmg Ihe utili~tion goals tequ~rd b) this chapter on or before M~h 15~ or.ch ye~. ~ re~ s~ii incJude the n~bet :~d doJt~ amo~t of cont~c~ swirled, by con.ct ~[ego~ ~d ~ doU~ ~ount ~d the ~centage ot'minonW/womcn s b~m~ ~icipation by con.ct ~d contract catego~. ~d by n~bet of sel-~ide con~c~, pe~en~e preference con~c~, commcts requinng affi~ative effo~. ~d contra for which waivem were g~ttd. The m~n s~ll also identi~ problems in meeting ~e requi~menm of ~s c~p[er, ff~y, ~d suggestions for improvement. E. Monitoring of Eff~. ~e ~inis~mr s~l es~blish processes to collect evidence ~d monitor the effec~ of the provisions of t~s c~pter in order to ~sure. i~ot~ ~ is pmcti~, t~at the ~medies set fo~ hmin do not ~p~nio~tely favor one or more ~cial or ethic groups ~d ~at the ~edies do not remain in effect beyond ~e point tha~: ~ey ~e requi~ to el~ ~ effec~ of d~m~tion in ~e 1o~1 connoting ind~ies. T~e extent ~ ~dm~ to ~s ~t~ ~ ~ui~d to effe~ ~ese en~. the ~minis~tor s~ll p~ app~pfiate o~i~e~ for ~e ~eil's co~id~tion. F. Cenifi~tion ~d Recogmtion ~. 1. P~t to C~p. 328. ~ of 1987, ~e O~c~ of Minomy ~d Women s B~in~ of~e Stoic of W~gmn s~t ~ solely ~ible for ce~ing ~d deceni~ing b~in~ses. ~e co~'s mi~n~ ~d women's b~ine~ ente~se prog~ is o~y for mmo~ties ~d minon~ b~ine~ ~d ~men's bmme~es ~d combi~tion b~inesses ~ defined in SecUon 2 offs o~i~ce; ~fo~ ~e ~ims~tor sha~l ~ogni~ only ~ose combi~fion minofi~ ~d women's b~in~s em~nses or minority b~iness ente~nses ce~fied by ~e S~t~ of W~mn which ~so meet ~e ~etini~io~ ot' ~don 2 o~is o~c~. a~o~g to ~ofi~ sm~ ~o~ion provided to the coumy by ~e O~ce of Minon~ ~d Wom~'s B~m~s of~ Sm~e of W~hington. Bminesses ~ only eligible for ~ co~'s pm~ ~ long ~ ~ey ~m~n certified by the State of W~hington. 2. Il shall ~ co~ide~d a violation of ~is c~p~cr to obtain, or anempt to obtain. c~ification or ~he benefi~ of ~y provision of ~is c~ter~ on ~e b~is of f~e or 21 I 2 4 6 7 9 10 II 12 13 14 I$ 16 17 19 20 21 22 23 24 25 26 2'7 28 29 misleading inf( mon, v. ncther provided to [he county or [o the Office of Mino~lly Women's Busi: ts or'the Slate of Washington. 3. N . contract requiting or p'tol~sing minomy/women's business punzcipation may ~ ente~d into ~i~s all mino~tyl~men's b~i~es identified to m~t ~e utili~tton go~s by a ~s~nding ~' ~m. at the time ~e bid ~ submiued, certified by I;he O~ce of M~on~' ~ Wom~'s Bmin~ of the State of W~in~on ~d recogni~d by a~inis~or m eligible ~o p~ci~te in the co~'s mino6~/~men's bmin~ ~d ~e ~inis~tor de:e~i~ ~1 idemifi~ mino~/~m~'s b~in~s~ appe~ able to ~ffo~ a co~e~i~ly ~1 ~ction on ~ con~t ~ pm~se~ Lis~ of ce~ified ~d ~d mino6~/womeffs brain--s s~ll ~ pm~d~ m ~1 de~ mci m~e av~lable m the public. 4. No bmin~ s~l apply to the co~' in o~ to ~ici~te in ~e pm~s ~mbli~ by this ch~t~. O. ~em n complain ~ fil~ ~ o~ y~ of~e comple6on of~l work on a c~t alleging a ~o~6on of~ ~ by a ~r. su~mt or cont~t- a~ing au~fi~, or ~. ~n ~t time ~ ~e ora ~ola~on is d~ove~ ~m i~o~ion 8~ ~u~ ~mpllmce ~onit~g, ~e ~in~tor s~ll ~me to ~ or mail~, by ~fi~ ~1. ~ ~pt ~ a copy of~e complaint or notice promptly ~e m invention ~f. ~ inv~on s~l ~ ~t~ to mce~n fa~ conc~ing ~e ~ola6on ~1~ in ~e compl~t md ~1 ~ ~u~ in m obj~tive md im~ial ~er. ~ng ~ i~tigation. ~e ~t~ s~l comider my ~t of~sition or ~d~ ~ ~t m ~e ~om of the ~mp~nt which complaint or ~e ~t ~es m ~it. - 1. ~e ~i~tor s~l ~ve a~ofi~ m ~ ~ i~e ~ tequi~ng ~e ~ce ~d ~ony offs. ~e p~u~ion ot~ including bm not limited lo ~ks. m~rds, co~nd~ ot d~ in ~ ~ion ot ~er ~on subpoe~e& md acc~ to evidence for ~e p~se of ~i~tion md copying ncc=~D' tot ~e in~igation. ~ ~mi~tor s~l ~mult ~ ~e co~ty procuring a~omey ~fote issuing ~y sub~ ~det ~is Il'an individual Jails to obey a subpocfla, or obeys a suOpoefla bul reluses lo $ subpoena. The pesi/inn shall be accompamcd by a copy of the subpoena a.~d proot of service 6 and shall set form in what specific manner the subpoena has not been complied with, and 7 shall ask for an order of'he court to compel the wimess to appea~ and testify, or cooperate m 8 thc investigation of thc violation. 9 2; The results o£tbe investigation shall be reduced to umt~en findings of fact and 10 finding shall be made that there either is or is not reasonable cause for believing th~;t a I viotatton has been or is being committed. Ifa finding is made that there ~s no reasonable. 12 cause, said finding shall be served on the complainant and respondent. Within ~rty days 13 at, er service of such negative finding, the complainant shall have the right to file a ~rntten 14 request with the adminisu'a~or asking for recoasideration of the finding. The administrator I $ shall respond in writing within a reasonable time by g~a.nting or denying the request. 16 H. I f t~e finding is made initially or on reque~ foe recousideration ~at reasonable 17 cause exists ~o believe that a violation by a con~'acto~ or subcontractor has occurred, the 18 adminismator shall endeavor to remedy the violation by con_terence, conciliation and 19 persuasion, wl'~ch may include monem~'y compensation, the creation of additional 20 opportuniiies for mthotity, or women's utiliz~ion on other conu~cl~, or such other 21 requirements as may law'fi, lily be agreed upon by the panics and the admialsLrator. 22 settlement agreement shall be reduced to writing and signed by both panics. An order shall 23 then be entered by th~: admiinstnnor serdng £otth the ten'us of the agr~mem. Copies of such 24 order shall be delivered to all affected parues and the original thereof filed with the division 25 - of records ,and elections. 26 '; If no ag~emcnt can be roached, a f'mthng to that effe:t shall be made by the 27 administrator and incorporated in a preliminary order, with a copy thereof furnished to 28 compiathant and the respondent. The preliminary order shall also include: 29 1. A finding that a violation has occurred: 30 2. The b~is for such finding. 23 I 2 4 $ 6 7 9 10 11 12 13 14 16 17 18 19 20 21 23 24 2~ 26 27 28 29 3O i. In the ca~e of failure to reach an agreement for the elimtnat~,~.n ol such a v3 =on. and upon thc entry, cfa preliminary order, thc complaint and ::.ny and ali findings m==c and' r~mediss ordered shah be certified by the ndmthisu'ator to the office of the count/heanng examiner for heanng. A heanng shah be conducted by the office of the beanng examiner for the purpos~ o f a~rrnthg, denying, or modif'ying the preliminary order. The heanng shall be conducted on the record and the heanng examiner shall have such role making and other powers necessar.~.. for conduct of the heanng as ate specified by K.C.C. 20.24. Such hcanngs shall be ¢onducred Within a reusonabJe time afler receipt ct' Ihe certification. '~l/rmen notice of the time and place of the heanng shall be given at least ten days prior to the date of the beafins to each affected party, and to the administrator. Each par~ shah have the following rights, among others: I. To call and examine wimnsses on any manet relevant to the issues of the complaint; 2. To inm:xfuce documentary and physical evidence; 3. To eross-ey,,amine opposing wimesses on any matter relevant to the issu~es of the complaint; 4. To impeach any witness mgardlces of which party first called him to te.~;ti~: 5. To rebut evidence against him/her, and 6. To repro:sent blmeelf/herselfor to be mpr'"-,~,ented by an'.vor~ of his/her choice who is lawfully permitted to do so. J. Following t,~view of the evidence submitted, the heating eXatmner presidthg at the heating shall enter wriuen findings and conclusions and shall render a written decision and shall order one or rnor~ of the following: 1. Dismissal of the complaint when a violation is found not to have occm-md; 2. Suspension or cancellation ofthe contract in part or in whole; 3. Disqualification and/or debarment of the violator from paflicipation in county.. contt'acts for a period of up to five yeats; 4. E.xcinsion of the violator from future contracts or vending until demonstration o f compliance: 24 2 4 5 6 7 8 9 I0 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 120,26 other remedy available under the laws of thc county. Upon a finding by the heann§ operated aa a broker, front, conduit or pmls through busthcas, liquidated damages specified in the contract shall be imposed unlass the hcanng exammer finds that ~mposition of such damages would be clearly inequitable, in which caae the heanng cxamfiler may order appropriate relief. awarding authority has corn.mitred a violation, the finding shall be forwarded to the executive. who shall review the evidence and shall order one or more of the following: 1. Dismissal of the complaint when a violation is found not to have occurred: 3. Disqualification and suspension of authority of all members, any board. ¢__ommission, or other body constituting the violating conlract awarding aufilomy; 4. Enforcememofa.nyofilerremedyavallableunder thelawsof filecoanty. L, Upon receipt ora wria~n and signed allegation that a business ovmer is improperb, being considered to be, or has improperly been rejected as, a minority business or wom,~n's business as defined in this chapter, or that a waiver or reduction of set-aside requirements has been improperly denied or _m'amed, or if such information is discovered from informatmn ga/ned through compliance monitonng, the admi~'Jstrator shall conduct or caase to be conducted an investigation. The pendency of such allegations or of subsequent heanngs on being advertised or for which bids have been received. If there is reasonable cause to believe interested parties o£ whom he/she is aware, and upon publication of notice of the hearing in hearing to determine whether or not the allegauon is correct. Thc haa.nng shall be recorded and each interested ParW shall have file right to call and examine w~messas, to produce 25 · I 4 $ 9 I0 It 12 13 14 I$ 16 17 18 19 20 21 23 24 26 2'7 28 29 30 · anyone of his/her choice lawfully perrnmcd to do so, The hcanng officer designated b? the administrator shall permit testzmony to be given by any panics which would be office affected b.v thc mve$ligauon. After the heanng, the administrator or designated heating officer shall make fi:ndsngs and conclusions and shall order appmpnare corrective action, if'any. M. In addition to any other remedy available under the laws of thc county and the Slate of Washington any p~t3on, firm. corporation, business, union, or organization which prevents or inted'eres with or retaliates ~Emnst a contractor and/or subcofllractot's eft, arts to comply with the requiremente of'this chapter or which submits false or misleading information to an.v county, department or employee con~:eming compliance with this :hapter shall be subject to a civil ponal~y of up m five thousand dollars t'or each occmTence, the count)' having previously complied with the notice and hearing provisions of'this chapter. Each submission of t'alse or m~sJeading informadon shall constitute a separate occur~.-ncc. -- NTEWgff(TrTo~I ~'i:tTTI'ON 10. Thero is added to K.C.C. 4.18 a new section to read as follows: Annual report required. The administrator shall submit an annual report to thc executive detailing performance of'the program by April I$ of each year. This report shall be f'or, va:ded to thc council no later than April 30. The tepo~ shall include: A. Statistics, and narrative where appropriate, demonsu~ting the utilization of minori~.v and women's businesses by deparunent, conu'act category, and the county. overall: B. Statistics, and narrative Where appropriate, demonsLeating the number ~d type of' waivers granted; C. Explanations of'any investigative actions taken by the minority and women's I~usiness enterprises and contract compliance division reganJing the implementation. monitoring and enf'otcoment of' this chapter. D. Descriptions of'any problems in the implementation reported by the department. including proposed solutions: E. Recommend~tion.~ as appropriate, regarding amendmcnts to this chapter: end 26 I 3 4 5 6 7 9 10 I1 12 13 14 16 17 Ig 19 20 21 22 23 24 25 26 27 28 29 12026; F Proposed utiJizatmn goals, as neccssa.,2,, NEW~E('"T'ION SECTION ll There is added to K.C.C. 4 18 a new section to read as follows: Studies and recommendations graduating rirms out of program. A. The administrator is dir~:cted to pr~pase a recommendation to the council on a methodology and plan for graduating minont3/a.~d women's businesses after a certain number of y'ears of certification and level of income above that used for state certificatton. The exeeunve shall submit such a recommendation ~ part of the overall recommendations resulting from the disparity study commissioned pm'suant to Ordinance 11564. B, The methodology and plan shall include specific objective cmena and timefra.mes for reviewing minority and women's business enterprise participation in the county's remedial program and determining when and under what conditions individual firms shall be graduated from the coun .ty's remedial program, NEW SECTION. S~CTION 12. There is added to K.C.C. 4.18 a new section _read ~ follows: Authorization to implement procednros. The executive shall implement such forms, administrative processes, and operational procedures ~ am necessary to comply w~th the provisions of this chapter;, provided that such forms, processes and procedu~s shall be promulgated in compliance with ICC.C. 2.911, wflh the exce~tiun that adminisu-ative ales regulations related to fi'ds chapter shall be submitled for review by the adminisu'ation and ju.~ice comminee lot i~ succe~.qor comminee) fifteen days prior to filing with the clerk of the council, the pmvisious of I<.C.C. 2.98 notwithstanding. NEW S~CTION. SECTION ~ 'I. There is added to K.C.C. 4.18 a new section to read as follows: Minority and women's husinms enterprises program provisions applicable to 'metropolitan fnnetions. Nota.vith~tanding the requirements set forth in this chapter, in order to foster a smooth transition and for the purposes of observing fedemt regulations. the minority and ',,,'omen business enterprise provisions for MWB utilization set forth in Ordinance 11032. Sections 19.G. tg.H. 19.J.2. and 19.K. and codified in K.C.C. 28.20.040 D, K.C.C. 28.20.040 E. K.C.C. 211.20.050 B. and K.C.C. 211.20.060 shall 27 4 $ 6 ? 8 9 10 11 12 13 14 16 17 18 19 20 21 22 2.3 24 2S. 26 27 28 continue to be applicable to the metropolitan funcuons performed b,', count)' pursua? , to chapter 35.58 RCW until the conclusion of the disparity study, co: ~ssioned pursuant to Ordinance ~ 1564, and recommendations resulting from the study ate adopted and approved by the council by otdinanca or as otherwise provided by the council. The administrator shall administer and implement said provisions for contracts awarded in direct support or'said metropolitan functions. blEW SECTION SECTION ! 4 These is added to IC.C.C. 4.18 a new sec~ion to read as follows: Designation of DB£ Liaison Of~¢er. Tho adminislratot shall serve a,s thc Disadvantaged Business Ente~tise ("DBE") Liaison Ofiqcet for purposes of compliance with federal Department of Transportation and other federal and state agency l~m~cial. msi~ rcquircments. NE%V SECTION. SECTION ! 5 There is added to IC.C.C. 4.18 a new section to read as follows: -_ Federnl mad state requirement.s. In order to secure/in~nelal assistance from federal and state a~encies, the adminislmWr shall provide for the participation ot'~rninority, women and disadvantaged busin~_,¢_- ptw~uant to regulations and requirements imposed by such federal and state agencies. The adminis'~ator may issue ndas and procedurcs and take steps nec,-~n,'y to implement and COmply with applicable federal and sta{e laws and regulations, inciudin8 the establishment of annual goals and contract goals for minority, women and disadvantaged businesses. ~ Ellentive dar/. This oniinance shall take effect on January 1, 1996. ~ Severabilit7. The pwvisions of this ordinance shall be effective in all cases unless otherwise provided by federal law. The provisions of this onlinance are -separate and severable. The invalidity of any chase, santen~, paragraph, subdivision. 'sention or other portion of ~his Ordlnn,,,m or th~ invalidity of the application thereof to any pe~on or eimumstance shall not affect the validity of gm remainder of this ordirm~ce or the validity of thc application to other persons or circumstances. 28 2 5 6 7 8 9 1202 INTRODUCED AND READ for Ibc first time this ;~?,~ ~ day o[ PASSED by a vol, of~ ,o ~ this ~$ ~,y offs. K. ING COUNTY COUNCIL KING COUNTY. WASHINGTON 10 11 12 13 14 15 16 17 Ig 19 A1-FEST: Cl~rk of the Cmmeil APPROVED this Attac~un=nts: None Chair dayof King Counyx¢"~ti~,e- 29 Exhibit C Washington Cities InsuranCe Authority 07-Apr-97 King County Solid Waste ATTN: Lyne Davis 400 Yesler Room 600 Seattle,WA 98104-2637 APR 8 ~? CITY OF AUSO~t CITY CLERKS OFFICE RE: City of Aubum Waste reduction and recycling grant program for suburban cities. Cert#: 1148 Evidence of Coverage The above captioned entity is a member of the Washington Cities Insurance Authority (WCIA), which is a self insured pool of over 86 municipal corporations in the State of Washington. WCIA has at least $1 million per occurrence combined single limit of liability coverage in its self insured layer that may be applicable in the event an incident occurs that is deemed to be attributed to the negligence of the member. WCIA is an Interlocal Agreement among municipalities and liability is completely self funded by the membership. As there is no insurance policy involved and WCIA is not an insurance company, your organization cannot be named as an "additional insured'. Sincerely, Eric B. Larson Assistant Director cc Diane Supler Robin Wohlhueter EO. Box 1165, Renton, WA 98057 (206) 277-7237 Fax277-7242