Vallejo Municipal Code Ch. 2.72 Affirmative Action Contract Compliance

Affirmative action requires the determination, isolation and elimination of those concepts, circumstances and practices which lead to and permit discrimination. Affirmative action further requires the establishment of firm objectives, the assignment of responsibility and the establishment of procedures for the accomplishment of those objectives and provision for review procedures to assure accomplishment and continuance of the objectives once attained.

(Ord. 16 N.C.(2d) § 1, 1971.)

As used in this chapter, the following definitions apply:

A. "City" means the city of Vallejo, a municipal corporation, organized and existing under and by virtue of the Constitution and laws of the state of California.

B. "City council" means the council of the city of Vallejo, the duly elected governing body of the city.

C. "City manager" means the person appointed to that position by the city council of the city of Vallejo pursuant to Section 400 of the City Charter, or in the event the position is vacant, the person designated as acting city manager by the city council pursuant to Section 408 of the City Charter.

D. "Community relations commission" means the community relations commission of the city of Vallejo, a commission created by the city council pursuant to Section 401 of the City Charter.

E. "Prime contractor" means a person, firm, partnership, or corporation, who has been awarded a contract by the city of Vallejo for public works, or for goods or services in the sum of twenty-five thousand dollars, or more.

F. "Principal subcontractor" means a person, firm, partnership or corporation who has a contract with the prime contractor to supply labor and/or materials in the sum of twelve thousand dollars, or more in the performance of a contract awarded by the city of Vallejo to the prime contractor for twenty-five thousand dollars, or more.

(Ord. 36 N.C.(2d) 2, 1971.)

Every contract or subcontract awarded by the city for public works, or for goods or services shall contain a clause obligating the contractor or subcontractor to observe the requirements of Section 2.72.040. The clause shall be in substantially the following form:

"Contractor agrees to observe the provisions of section 4 of this Ordinance No. 36 N.C.(2d) of the City of Vallejo obligating every contractor or subcontractor under a contract or subcontract to the City of Vallejo for public works or for goods or services to refrain from discriminatory employment practices on the basis of race, religious creed, color, sex, national origin or ancestry of any employee of, or applicant for employment with, such contractor or subcontractor. Said Section 4 is, by this reference, made a part of this contract."

(Ord. 36 N.C.(2d) § 3, 1971.)

Every contract or subcontract of the city of Vallejo for public works, or for goods or services shall contain the following provisions:

"In the performance of this contract, contractor agrees as follows:

"(a) That the contractor shall not because of the race, religious creed, color, sex, national origin, or ancestry of any person, refuse to hire or employ him, or to bar or discharge him from employment, or to discriminate against him in compensation, or in the terms, conditions, or privileges of employment and that contractor will take affirmative action to ensure that every applicant for employment and every employee shall receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions, or other privileges of employment without regard to his race, religious creed, color, sex, national origin, or ancestry.

"(b) That the contractor shall post in conspicuous places where they may be seen by every employee or applicant for employment notices, in such form as shall be prescribed by the City Manager setting forth the provisions of Section 4 of this Ordinance.

"(c) That the contractor shall in all solicitations or advertisements for employment applications include in such solicitation or advertisement language which will reasonably convey notice that every qualified applicant will receive consideration for employment without regard to his race, religious creed, color, sex, national origin, or ancestry.

"(d) That the contractor shall give written notice, in such form as shall be prescribed by the City Manager, of the contractor's commitments under this contract to any labor union or employee association with which the contractor has a collective bargaining contract, or other employer-employee labor agreement or understanding."

(Ord. 36 N.C.(2d) 4, 1971.)

Prior to the award of a contract, whether pursuant of sealed bids or otherwise, for a sum of twenty-five thousand dollars, or more, or if the contract price is not fixed, but is estimated by the city manager to be for a sum of twenty-five thousand dollars, or more, the prospective prime contractor together with his known principal subcontractors shall, within a time specified in the contract documents, confer with the city manager to review and discuss the proposed affirmative action programs of such contractor and principal subcontractors pertaining to nondiscriminatory hiring and employment practices. Within seven days after such conference, or within such other time as may be specified in the contract documents, the prospective prime contractor shall submit to the city manager four copies of a written affirmative action program for himself and his principal subcontractors, in such form as shall be prescribed by the city manager, complying with the requirements of Section 2.72.060. The city manager, upon receipt, shall forthwith transmit one copy of such written affirmative action program to the secretary of the community relations commission.

(Ord. 36 N.C.(2d) § 5, 1971.)

The written affirmative action program submitted by the prospective prime contractor shall comply with the following requirements:

A. Set forth the program the prime contractor and his principal subcontractors will undertake to:

1. Recruit minorities in its location for all classifications and levels of jobs,

2. Select methods assuring equal employment opportunity for all persons,

3. Establish a training program for new hires where necessary to assure ample opportunity for the less qualified to more fully qualify,

4. Provide adequate opportunity for upgrading and further training to assure equal opportunity in advancement and promotion,

5. Provide counseling service for all who may need help to advance, especially new employees, and

6. Educate supervisors regarding nondiscrimination practices;

B. Set forth the estimated total number by job classification of personnel who will be employed by the prime contractor and each principal subcontractor in the performance of the contract. These numbers shall include the estimated breakdown of minority personnel to be employed in each classification. The prime contractor and each principal subcontractor shall estimate as accurately as possible the minority breakdown by month for the term of the contract. No estimate furnished under this subsection shall be construed or enforced as a hiring quota;

C. In preparing the above estimates, it is expected that the prime contractor and his principal subcontractors will take, or agree to take, additional steps to assure affirmative action in the field of minority employment, as follows:

1. Recruiting for needed help in the local areas inhabited by minority members, including open advertising and the use of various established public and private agencies, including advice furnished by the community relations commission,

2. Training those less qualified to assure adequate promotional opportunities for all,

3. Providing necessary counseling for upgrading, including use of the outside training facilities in this area,

4. Assigning an equal employment opportunity (EEO) coordinator fulltime or as an additional duty, and assuring that all supervisors are aware of their responsibilities and that union representatives recognize their responsibilities in the equal employment program,

5. Assuring that all subcontractors are in compliance with the federal and state laws, and regulations promulgated thereunder, relating to nondiscrimination,

6. Where the contract is of sufficient duration, assuring development of apprenticeship programs with union cooperation,

7. Providing the names and business addresses of all suppliers whose materials and/or equipment exceed five percent of the total material cost for each subcontract in the performance of the contract.

(Ord. 36 N.C.(2d) § 6, 1971.)

A. The city manager shall review the affirmative action program submitted by the prospective prime contractor to determine whether it complies with the requirements of Section 2.72.060. The city manager will analyze the affirmative action program submitted by the prospective prime contractor with the objective of deciding whether the program presents a reasonable effort to further minority employment. If the city manager determines that the program complies with said requirements, he shall forthwith so report to the city council. If the city council, after consideration of said report, is satisfied that the affirmative action program does comply with said requirements, it may proceed to award the contract. If the city manager determines that the affirmative action does not comply with said requirements, he shall forthwith notify the prospective prime contractor of the deficiencies in such program and allow the contractor to make necessary modifications thereto, and shall fix a time by which such modifications to said program must be submitted. If the prospective prime contractor does not submit the necessary modifications within the time fixed, or extensions thereof granted by the city manager, the city manager shall so report to the city council. If the city council, after reviewing the city manager's report, determines that the affirmative action program submitted by the contractor does not comply with the requirements established in Section 2.72.060, the city council shall reject his bid or offer. The city council may grant additional time to the contractor to submit a satisfactory affirmative action program. If the city council finds that the affirmative action program does comply with said requirements, it may award the contract to the prospective prime contractor.

B. The approval of the written affirmative action program submitted by the prospective prime contractor on behalf of himself and his principal subcontractors as described above by the city manager and/or city council shall be a condition precedent to the award of the contract to the prime contractor.

C. Upon the award of the contract by the city council, the prime contractor's written affirmative action program which has been approved and accepted by the city manager and/or city council shall be an integral part of the contract and governed by the provisions of this chapter.

(Ord. 36 N.C.(2d) § 7, 1971.)

The prime contractor and his principal subcontractors shall post in conspicuous places, available to employees and applicants for employment, notices to be provided, setting forth the law prohibiting discrimination and advising anyone who feels he is being discriminated against to notify the State Fair Employment Practices Commission and/or the Community Relations Commission.

(Ord. 36 N.C.(2d) § 8(a), 1971.)

The prime contractor and his principal subcontractors shall, at such time and in such form as shall be prescribed by the city manager, certify to the city that they have or shall take the following affirmative action to implement the nondiscrimination provisions of the contract;

A. The prime contractor and his principal subcontractors shall provide such evidence as shall be required by the city manager that they have or will notify all supervisory personnel and personnel officers in their employment in writing of the nondiscrimination provisions of this contract and of their commitment thereunder.

B. The prime contractor and his principal subcontractors shall provide such evidence as shall be required by the city manager that they have notified unions, employment agencies, advertising agencies and the Department of Human Resources of the state of California in writing of their commitments under the nondiscrimination provisions of the contract.

C. The prime contractor and his principal subcontractors shall personally, or through their authorized representative(s), attempt to negotiate and develop with any labor union or employees association with which they have a collective barging agreement, or other employer employee labor agreement or understanding, an agreement(s) which shall:

1. Define the responsibilities of contractor and principal subcontractors, and such union or employee association for nondiscriminatory practices in hiring, referral, upgrading and training of employees; and

2. Otherwise implement the above outlined commitments with respect to defining such union's or employee association's responsibilities in the employment process or in apprenticeship programs to the end that every qualified worker will be given an equal opportunity for employment without regard to his race, religious creed, color, sex, national origin, or ancestry.

D. The prime contractor and his principal subcontractors shall notify the city manager of any opposition to the nondiscrimination provisions of the contract by any person, firm, or organization with whom they must deal in the ordinary course of business.

(Ord. 36 N.C.(2d) § 8(b), 1971.)

The prime contractor shall file a compliance report with the city manager in such form and at such time as the city manager shall prescribe. Failure to complete or return required data or if a wilful false statement is made in any such report, the contractor shall be deemed to have wilfully violated the nondiscrimination provisions of the contract.

(Ord. 36 N.C.(2d) § 8(c), 1971.)

The city manager shall review periodically the performance of the prime contractor's affirmative action program until completion of the contract and shall promptly inform the community relations commission and the city council on the progress of the prime contractor and his principal subcontractors in complying with the affirmative action program.

(Ord. 36 N.C.(2d) § 8(d), 1971.)

A. Any prime contractor who is found by the city manager to be in violation of his agreement to pursue an affirmative course of action or in violation of any provision of the affirmative action program pertaining to his contract shall be found in material breach of such contract, and, thereupon, the city shall have power to cancel, rescind, or suspend the contract, in whole or in part, or to deduct from the amount payable to such prime contractor the sum of two hundred fifty dollars for each calendar day during which said contractor is found to have been in noncompliance, as damages for said breach of contract, or both.

B. The provisions of this chapter as adopted or modified by the city council and the penalties provided for in this section shall not prevent the city from pursuing and obtaining any other appropriate or additional legal remedy or relief.

C. The city manager shall, in the enforcement of this chapter, consider among other factors the recommendation of the community relations commission.

(Ord. 36 N.C.(2d) § 9, 1971.)

Any prime contractor or principal subcontractor adversely affected by the action or decision of the city manager in the enforcement of this chapter shall be notified of his right to appeal to the city council. Notice of appeal shall be made in writing and shall be filed with the city clerk within fifteen days after the date of the protested action of the city manager. Compliance with any decision, order or other action of the city manager shall not be required during the time that an appeal is pending.

(Ord, 36 N.C.(2d) § l0(a), 1971.)

For purposes of appeals under Sections 2.72.130 through 2.72.160, a quorum shall consist of four members of the city council. A majority of not less than four affirmative votes by the members of the city council shall be necessary for all decisions rendered on such appeals pending before it.

(Ord. 36 N.C.(2d) § 10(b), 1971.)

All appeal hearings of the city council shall be conducted at regular, or special meetings of the city council, open to the public. Records and minutes shall be kept of such proceedings and shall be open to public inspection. Upon reaching a decision in any appeal hearing, the city council shall give written notice thereof to the city manager and the appellant or appellants. The decision of the city council shall be final and conclusive.

(Ord. 36 N.C.(2d) § l0(c), 1971.)

Any prime contractor or principal subcontractor adversely affected by the action or decision of the city manager, who has filed a notice of appeal, and who shall, without good cause, fail to appeal at the appeal hearing after having been given at least five days' written notice of such hearing, waives further consideration of the appeal by the city council.

(Ord. 36 N.C.(2d) § l0(d), 1971.)

Neither this chapter, nor any portion thereof, shall apply to any contract to which this chapter would otherwise apply if such contract is subject to the President's Executive Order No. 11246 entitled: "Equal Employment Opportunity" (or any amendment thereto or any executive order superseding said order) and the rules or regulations promulgated pursuant to said order, except as may be otherwise specifically provided by the contract documents to which said order is applicable.

(Ord. 36 N.C.(2d) § 11, 1971.)

The provisions of this chapter shall not be applicable to negotiated contracts already approved or authorized by the city prior to September 15, 1971, nor to those contracts proposed to be awarded pursuant to sealed bids for which notice to bidders is published prior to the expiration of thirty days from and after September 15, 1971.

(Ord. 36 N.C.(2d) § 12 (part), 1971.)