Berkeley Municipal Code Ch. 13.26 Discrimination Against Employees by Contractors with the City Of…

The purpose of this Chapter is to assure that contractors with the City of Berkeley do not discriminate against any employee or applicant for employment on any grounds specified in any state, federal or municipal law and to require that any existing discrimination be remedied by appropriate methods including establishment of an approved affirmative action program. Towards this end, this Chapter requires that certain contractors, defined in this Chapter, enter into first source agreements with the City. (Ord. 5876-NS § 1, 1988)

A. "Contract" shall mean and include an agreement to provide labor, materials, supplies, equipment or services in the performance of a contract, franchise, concession or lease granted, let or awarded for and on behalf of the City of Berkeley, and as used herein shall include subcontracts.

B. "Contractor" means any person or persons, firm, partnership, corporation, or combination thereof which enters into a contract with the City of Berkeley for construction or improvements to be performed, or for a franchise, concession or lease of property, or for goods, services or supplies to be purchased, at the expense of the City of Berkeley, or to be paid out of moneys deposited in the treasury, or out of trust moneys under the control or collected by the City of Berkeley.

C. A "Bid for supplies" means a bid by any person, or persons, firm, partnership, corporation or any combination thereof, for supplying of goods, materials, services, equipment or furnishings.

D. A "Bid/Proposal for services" means a proposal by any person, or persons, firm, partnership, corporation or any combination thereof, for personal services.

E. "Sex" shall be defined as it is in the Fair Employment and Housing Act, Government Code Section 12900 et seq.

F. "Sexual orientation" shall be defined as it is in BMC Chapter 13.76.

G. "AIDS" and a person who has AIDS or associated conditions" shall be defined as it is in BMC Chapter 13.30.

H. "Disability" shall be defined as "physical handicap" as defined as it is in the Fair Employment and Housing Act, Government Code Section 12900 et seq.

I. "Protected categories" as used herein shall refer to race, color, religion, ancestry, national origin, age (over forty), sex, marital status, disabled, sexual orientation or AIDS.

J. "First source employment program" means an employment program operated by the City of Berkeley, which is to be utilized as contractors’ "first source" for recruiting applicants for both new and replacement employment.

K. "Workforce analysis" as used herein is the percentage of each minority group or female workers in the relevant geographical recruitment area analyzed by EEO category or job title.

L. "City of Berkeley" includes its employees, agents and assignees. (Ord. 5876-NS § 2, 1988)

The non-discrimination requirements set forth in Section 13.26.070 hereof, apply to all City contracts. The bidding procedures set forth in Section 13.26.050 hereof, apply to any contract over three thousand dollars. The first source provisions set forth in Section 13.26.080 hereof, apply to construction projects over one hundred thousand dollars. Contractors and bidders with fewer than five employees are exempted from Sections 13.26.050 and 13.26.080 hereof. In addition the City Manager or their designee may in their discretion, exempt contractors and bidders from Sections 11.26.050 and/or 11.26.080 in the case of exigent circumstances. (Ord. 5876-NS § 3, 1988)

A. The City Manager shall have the responsibility for administration of this chapter and may delegate this responsibility as they see fit.

B. The City Manager or their designee shall receive and review all bidding materials required to be submitted pursuant to this chapter.

C. In any case in which the City Manager or their designee finds the lowest bidder is not responsible because of failure to satisfy the provision of this chapter, such finding shall be in writing and shall specify the reasons for the finding. Any bidder may appeal such finding within ten days to the City Council and ask for a hearing. The matter shall be agendaed for hearing at the earliest practical date. The decision of the City Council shall be supported by findings. (Ord. 5876-NS § 4, 1988)

A. Bids for Supplies. The bid for supplies shall include a completed workforce composition form. This will be reviewed by the City Manager or their delegate for conformity with the non-discrimination requirements of this Chapter.

B. Bids/Request for Services. The bid/proposal for services shall include a completed workforce composition form. This will be reviewed by the City Manager or their delegate for conformity with the nondiscrimination requirements of this Chapter.

C. Bids for Construction (Public Works) Projects. The bid for construction projects shall include a completed workforce composition form and a separate workforce analysis by job craft. This will be reviewed by the City Manager or their delegate for conformity with the nondiscrimination requirements of this Chapter.

In lieu of submitting the above required analysis, the City will accept a covenant by the bidder that under any contract with the City of Berkeley, it will employ minorities and women in each craft in numbers equal to the percentage of minorities and women available in each craft in the County of Alameda. The City of Berkeley will make those percentages known to all bidders who request such information to the extent such information has been compiled by the City. (Ord. 5876-NS § 5, 1988)

Before the City determines the apparent lowest responsible bid or before a vendor is otherwise selected, the City may require any bidder it believes may have discriminated (on the basis of the workforce composition form and/or other information) to submit an affirmative action program. This program (the form of which shall be determined by the City Manager or their designee) shall be no more detailed than that required by the state of California, pursuant to Chapter 5 of the Administrative Code, Section 8104. (Ord. 5876-NS § 6, 1988)

Every contract for or on behalf of the City of Berkeley shall contain the following provisions which shall be known as the nondiscrimination provisions of such contract.

In the performance of this contract, the contractor, subcontractor or supplier agrees as follows:

A. The contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, national origin, age (over forty), sex, pregnancy, marital status, disability, sexual orientation or AIDS.

B. The contractor shall permit the City of Berkeley access to records of employment, employment advertisement, application forms, EEO-I forms, affirmative action plans and any other documents which, in the opinion of the City of Berkeley, are necessary to monitor compliance with the nondiscrimination provisions, and will, in addition, fill-out in a timely fashion, forms supplied by the City of Berkeley to monitor these nondiscrimination provisions. (Ord. 5876-NS § 7, 1988)

Every covered contract for or on behalf of the City of Berkeley, unless prohibited by federal or state law, shall contain a first source agreement which shall contain the provisions indicated below.

The contractor agrees as follows:

A. To utilize the City of Berkeley’s first source employment program as the first place utilized for recruitment and referral of applicants for new and replacement employment.

B. To allow the City first source program a minimum of three days to refer applicants to contractors. (Contractor may apply to the City for a waiver of the three-day requirement for an emergency situation.)

C. To interview and consider qualified applicants referred by the first source program before interviewing others.

D. That the contractor has the sole discretion to make all final hiring decisions.

The above first source agreement provisions shall apply for the duration of covered contracts. (Ord. 5876-NS § 8, 1988)

This chapter shall not confer upon the City of Berkeley or any agency, board or commission thereof, any power not otherwise provided by law to determine the legality of any existing collective bargaining agreement and shall have application only to discriminatory employment practices by contractors engaged in the performance of City contracts. (Ord. 5876-NS § 9, 1988)

A. Any person under contract to or doing business with the City and required to conform with the requirements of this chapter who is found by the City of Berkeley to be in non-compliance with the nondiscrimination provision of this Chapter or the covenant referred to in Section 13.26.050C, whether such noncompliance is willful or inadvertent, shall be considered in material breach of the contract.

B. Upon a determination of such material breach the City shall be empowered to cancel or suspend such contract, in whole or in part, with resumption thereof contingent upon a satisfactory showing to the City of such contractor’s ability to comply.

C. Upon a finding of material breach, such person may be declared ineligible for further City contract or business for a period not to exceed one year.

D. The foregoing remedies shall not limit the City in exercising such other legal or equitable remedies as may be available pursuant to the contract or operation of law. (Ord. 5876-NS § 10, 1988)

If any clause, sentence, paragraph or part of this Chapter or the application thereof to any person or circumstances shall, for any reason, be adjudged by a court of competent jurisdiction to be invalid, such a judgment shall not affect, impair or invalidate the remainder of this Chapter. (Ord. 5876-NS § 11, 1988)