06-080
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2 ORDINANCE NO. 06- Oeo
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4 AN ORDINANCE OF THE CITY OF BOYNTON BEACH,
5 FLORIDA AMENDING CHAPTER 2,
6 ADMINISTRATION OF THE CODE OF ORDINANCES
7 TO ADD A NEW ARTICLE XV; SMALL AND
8 MINORITY BUSINESS ENTERPRISES; ESTABLISHING
9 A PROGRAM TO ASSIST SMALL AND MINORITY
10 BUSINESS ENTERPRISES IN COMPETING FOR AND
II BEING AWARDED CITY CONTRACTS;
12 ESTABLISHING PROCEDURES FOR DESIGNATION
13 OF SMALL AND MINORITY BUSINESS ENTERPRISE
14 STATUS; AUTHORIZING ADMINISTRATIVE ACTION
15 TO IMPLEMENT, ADMINISTER AND MONITOR
16 PROGRAM GOALS; PROVIDING FOR CONFLICTS,
17 SEVERABILITY, CODIFICATION AND AN EFFECTIVE
18 DATE.
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20 WHEREAS, the City Commission finds that it is in the best interests of the City to create a
21 program whereby business desiring to do business with the City can do so in an inclusive and
22 equitable environment; and
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24 WHEREAS, The program would include implementation of race and gender neutral measures
25 to facilitate the participation of small and minority business enterprises (SMBE) in City
26 contracting activities, recruitment, certification, and maintenance of data bank, business
27 development, City project compliance, monitoring, and reporting. In addition, staff
28 recommends establishing a business advisory board. It would be the responsibility of City staff
29 to support the Advisory Board and coordinate activities.
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31 Section I. The foregoing whereas clauses are true and correct, and are now ratified by the
32 City Commission.
33 !Section 2. Chapter 2, Administration, of the Code of Ordinances is amended to add a new
34 !Article XV, titled Small/Minority Business Enterprises as follows:
35
36 ARTICLE XV
37 ISec. 2-201. General.
38
39 (a) This Article establishes the City's Small and Minority Business Enterprise Program.
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41 Sec. 2-202. Policy statement.
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41 I City manager means the City manager of the City of Boynton Beach or his or her designee.
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45 ICity's contracting marketplace means the geographic and procurement areas in which the
46 ICity contracts on an annual basis.
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(a) The policy of the City is that all businesses be afforded an opportunity for full
participation in the City's system for the procurement of goods, services or
construction projects.
It is the policy of the City to provide equal opportunities for City contracting for
small businesses owned by socially and economically disadvantaged persons doing
business in the City's contracting marketplace.
(c) It is the policy of the City to prohibit discrimination against any business in pursuit of
these opportnnities, to conduct its contracting activities so as to prevent
discrimination in the solicitation or award of public contracts or the acquisition of
goods and services.
It is declared to be the policy of the City to take all necessary, reasonable and legal
action to prevent discrimination, be it direct or indirect, in its procurement process; to
ensure that all businesses, including small businesses, are afforded the maximum
opportunity to participate in the City's procurement process; and to establish a
recordkeeping system to monitor small business participation in procurement
(b)
(d)
Sec. 2-203. Definitions.
The following words as used in this chapter have the indicated meanings:
Affiliation means a relationship between two (2) or more businesses which one business
controls or has the power to control the other, or a third party or parties controls or has the
power to control both, or an identity of interests exists between such businesses. In
determining affiliation, the City shall consider all appropriate factors, including common
ownership, common management, contractual relationships and shared facilities. Affiliates
must be considered together in determining whether a business is a small business enterprise.
Annual participation goals mean the targeted levels established by the City for the annual
aggregate participation in City contracts of smail/minority business enterprises SIMBE.
Bid means the offer to furnish goods or services, including formal and informal bids, and
responses to requests for proposals qualifications.
Bidder means a person that has submitted a bid to the City.
Brokering means filling orders by purchasing or receiving supplies from a third party
supplier rather than out of existing inventory, and providing no commercially useful function
other than acting as a conduit between a supplier and a customer.
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Commercially useful function means a function which results in the provision of needed
materials, supplies, equipment or services to the City. A small business must demonstrate
expertise in the commodity area that they are supplying and those commodity area must be
identified and listed in the certification approval letter. Acting merely as a conduit to transfer
funds to another business does not constitute a commercially useful function.
Contract means any written agreement or purchase order through which the City procures
goods or services.
I Contractor means a person that has a contract with the City to provide goods or services.
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! Controlled, for the purposes of determining whether a business is a minority or woman-
I owned business, means the minority, the woman or combination of minorities and women, as
I the context requires, who:
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(I) Possesses legal authority and power to manage business assets, goodwill and
daily operations of the business; and
(2) Actively and continuously exercises such authority and power in determining the
policies and directing the operations of the business. The term "controlled" for the
purposes of determining whether a business is a small business shall mean that no
large business:
a. Possesses legal authority and power to manage business assets, goodwill
and daily operations ofthe business; and
b. Actively and continuously exercises such authority and power III
determining the policies and directing the operations of the business.
Debarment means the exclusion for cause of a vendor or contractor from bidding and/or
doing business with the City.
Director means the City Manager or those individuals or departments designed to administer
all or part of the smail/minority business enterprise program.
Economically disadvantaged means an individual whose personal net worth is less than
$750,000.00.
Emergency procurement, as authorized by the City Manager, means a procurement made
in response to a requirement when a delay caused by complying with all governing rules,
regulations and/or procedures would be detrimental to the interests, health, safety or welfare
of the City.
Expertise means demonstrated skills, knowledge or ability to perform in the field of
endeavor in which certification is sought by the business as defined by normal industry
practices, including licensure where required.
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I Good faith efforts means actions that the City finds are sufficient to meet the standards
2 hereinafter set forth in section 2-210 which provides for contract pre-award compliance
3 procedures..
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5 Goods means apparatus, materials, supplies and equipment.
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7 Joint venture means an association of two (2) or more persons, or any combination of types
8 of business enterprises and persons numbering two or more, proposing to perform a single for
9 profit business enterprise, in which each joint venture participant contributes property, capital,
10 efforts, skill and knowledge, and in which the S/MBE is responsible for a distinct, clearly
II defined portion of the work of the contract with the City and whose share in the capital
12 contribution, control, management, risks, and profits of the joint venture are commensurate
13 with its ownership interest. Joint ventures must have an agreement in writing specifying the
14 terms and conditions of the relationships between the joint venture participant and their
15 relationship and responsibility regarding to the contract with the City.
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17 Large business means a business that does not meet the definition of small business as
18 defined in this article.
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20 MB means a minority-owned business.
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22 Minority person means an individual who is a citizen or lawful permanent resident of the
23 United States who is:
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25 (I) An African American, a person having origins in any ofthe black racial groups of
26 Africa;
27 (2) A Hispanic American, a person of Spanish or Portuguese culture who has origins
28 in Central or South America, or the Caribbean, regardless of race;
29 (3) An Asian American, a person having origins in any of the original peoples of the
30 Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands;;
31 (4) A Native American, a person who has origins in any of the Indian tribes of North
32 America prior to 1835; or
33 (5) A female
34
35 Owned, for the purposes of determining whether a business is a minority or woman-owned
36 business, means that the minorities or women, as the context requires, shall possess an
37 ownership interest of at least 51 percent. The term "owned," for the purposes of determining
38 whether a business is a small business, shall mean that no large business shall possess an
39 ownership interest in excess of 49 percent.
40 Participation plan means the list of 5MBESMBE that the bidder commits will be utilized,
41 heir scopes of work, and dollar value or the percentage of the project or the scopes of work of
42 he contract they will perform.
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44 ersonal net worth means the net value of the assets of an individual after total liabilities are
45 educted. An individual's personal net worth does not include the individual's ownership
46 'nterest in the applicant and the individual's equity in his or her primary place of residence.
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I An individual's personal net worth includes his or her share of assets held jointly with the
2 individual's spouse. Property held by the entireties is deemed to be owned equally by the
3 spouses.
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5 Practicable means reasonably capable of being accomplished.
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7 Prime contractor means any person or business entity who has a contract with the City.
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9 Procurement code means the City's procurement code set forth in this chapter, as it may be
10 amended from time to time.
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12 Procurement goals means goals expressed as percentages of the total dollar volume for
13 participation of small businesses on individual bids, proposals, resulting work authorizations,
14 purchase orders (POs) or City contracts.
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16 Professional services means any narrow discipline wherein a known practitIOner has,
17 through education and experience, developed expert advisory and programming skills as a
18 vocation, any service performed primarily by vocational personnel which requires the
19 certification of a professional before the services are acceptable to the user of the service, or
20 any other advisory study or programming activity where the procurement official determines
21 that the level of skills and/or creativity of the potential or known practitioner warrant a
22 solicitation process other than the competitive bid process.
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24 Program means the equal business opportunity (EBO) program.
25 Project specific goals means the goals established for a particular project or contract based
26 upon the availability of 5MBEs in the scopes of work of the project, delineated into
27 percentages ofSMBEs owned by blacks and women.
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29 Proposal means an executed formal document submitted to the City stating the goods,
30 services and/or construction offered to satisfy the need as requested in the requisition, request
31 for proposal, request for information or request for qualifications.
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33 Quotation means any oral or written offer as a result of an informal request by a vendor to
34 the City to furnish specific goods, services and/or construction at a stated price.
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36 Request for quotation means a request, either oral or written, to solicit prices for specific
37 goods, services and/or construction.
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40 SED means socially disadvantaged and economically disadvantaged.
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42 Services means the furnishing primarily of labor, time and/or effort by a contractor, wherein
43 the provision of goods or other specific end products other than reports, studies, plans,
44 advisories, contractual documents or other documents, reiating to the required performance is
45 incidental or secondary. This term "services" shall not include construction or employment
46 agreements.
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2 Small business means a person or business that:
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4 (I) Is domiciled in Palm Beach County which is an independently owned and
5 operated business concern organized to engage in commercial transactions and whose
6 adjusted gross margin and number of employees, including those working in all
7 offices or locations, does not exceed the following:
8 a. In construction, the annual adjusted gross margin less than $3,000,000.00
9 (averaged over the previous three years, or if in business, less than three years,
10 averaged during duration of business), and does not employ more than 30 full-
II time employees.
12 b. In commodities, the annual adjusted gross margin less than $1,500,000.00
13 (averaged over the previous three years, or if in business, less than three years,
14 averaged during duration of business), and does not employ more than 30 full-
15 time employees.
16 c. In professional services, the annual adjusted gross margin less than
17 $2,000,000.00 (averaged over the previous three years, or if in business, less
18 than three years, averaged during duration of business), and does not employ
19 more than 30 full-time employees.
20 (2) Meets the certification criteria set forth in this article.
21 (3) The limits described in subsections (I)a., b. and c. above shall apply to all small
22 businesses certified by the City (or other entity as heretofore listed) as of October I,
23 2003.
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27 Small business enterprise (SBE) means a small business concern meeting the size standards
28 established by the City or a federal, state, county, or local school board agency under similar
29 programs.
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32 Small business listing means a supplier list of certified small businesses approved by the
33 City Manager and made available to contractors or vendors for use in identifying
34 subcontractors and material suppliers.
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36 Small minority business enterprise (S/MBE) means a business, including a sole
37 proprietorship, partnership, corporation, limited liability company, joint venture or any other
38 business or professional entity:
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40 (I) Which is at least fifty-one (51) owned by one (I) or more socially and
41 economically disadvantaged individuals, or in the case of a publicly owned business,
42 at least fifty-one (51) percent of all classes of the stock of which is owned by one or
43 more socially and economically disadvantaged individuals;
44 (2) Whose management, policies, major decisions and daily business operations are
45 independently managed and controlled by one (I) or more socially and economically
46 disadvantaged individuals;
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(3) Which is small business enterprise;
(4) Which has a physical location from which to engage in for profit activities in the
scope(s) of expertise of the in the City's marketplace; and
(5) Which is certified as a 5MBE by the City of Boynton Beach, the State of Florida,
Palm Beach County, the School Board of Palm Beach County, or any other
municipality, notwithstanding the terminology used to designate the enterprise.
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I Socially disadvantaged means an individual who has been subjected to racial or ethnic
prejudice or cultural bias within American society because of his or her identity as a member
of a group and without regard to individual qualities. Social disadvantage must stem from
circumstances beyond the individual's control. A socially disadvantaged individual must be a
citizen (or lawfully admitted permanent resident) ofthe United States who is either:
(I) Black/African-American, which includes persons having origins in any of the
black racial groups of Africa;
(2) Female; or
(3) Any individual found by the City on a case-by-case basis to have been subjected
to racial or ethnic prejudice or cultural bias within American society because of his or
her identity as a member of a group, without regard to individual qualities. Social
disadvantage must stem from circumstances beyond the individual's control. Evidence
of social disadvantage must include:
a. At least one (I) objective, distinguishing feature that has contributed to
social disadvantage, such as disability, long-term residence in an environment
isolated from the mainstream of American society or other similar barriers not
common to individuals who are not socially disadvantaged;
b. Personal experiences of substantial and chronic social disadvantage in
American society, not in other countries; and
c. Negative impact on entry into or advancement in the City's contracting
marketplace and participating on City contracts because ofthe disadvantage, as
demonstrated by the individual's education, employment and business history.
Subcontractor means any person providing goods, services and/or construction to a prime
contractor for profit, if such goods, services and/or construction are procured or used in
fulfillment of the prime contractor's obligations arising from a contract with the City,
excluding providers of goods directly acquired by the City.
User department means the department of the City that the City manager designates as
responsible for initiating the procurement process.
V cndor means an actual or potential supplier of goods, services and/or construction.
WB means a woman-owned business.
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2 I Sec. 2-204. Program Administration.
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4 (a) The City Manager shall administer the City's SmalllMinority Business Enterprise
5 program.
6 (b) The City Manager is authorized to:
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8 (I) Adopting rules for the implementation and monitoring of the program and to
9 incorporate those rules into the City's procurement code.
10 (2) Develop a system to inform SIMBEs of City contracting opportunities.
II (3) Providing information and staff assistance to 5MBEs relating to City procurement
12 practices and procedures, and bid specifications, requirements, and prerequisites.
13 (4) Maintain a list of business that are certified as 5MBEs and maintain that list in a
14 5MBE availability data bank.
15 (5) Establish project specific goals.
16 (6) Evaluate bidders' and contractors' achievement of project specific goals or good
17 faith efforts to meet project specific goals.
18 (7) Direct hislher administrative staff to monitor contracts to facilitate prompt
19 payments to 5MBEs and compliance with project specific goals and commitments.
20 (8) Receive, review, and act upon complaints and suggestions concerning the
21 program.
22 (9) Collect and maintain data through software systems in order to report on
23 compliance with the article and monitor and report on utilization of minority and
24 woman-owned business as compared to their availability.
25 (10) Monitor and report on the program and the City's progress towards the annual
26 participation goals.
27 (II) Prepare an annual budget detail that allocates resources, including budget and
28 staff to carry out the mandates of this article.
29 (12) Delegate all or part of the responsibilities listed herein.
30
31 (c) The City staff or City departments which receive appropriate delegation for project
32 management, contract management, and/or construction and/or design contract responsibility
33 shall have the following duties and responsibilities with regard to the program:
34
35 (I) Assisting with setting project specific goals.
36 (2) Assisting in the identification of available 5MBEs, and providing other assistance
37 in meeting the annual participation and project specific goals.
38 (3) Performing other activities to support the program.
39 (4) Gathering and maintaining subcontracting data for those contracts which they
40 manage.
41 (5) Submitting subcontracting data to the City Manager.
42 (6) Managing contracts in a consistent manner to facilitate contract compliance in
43 utilization of 5MBEs.
44 (7) Submitting to the City Manager, on or before the beginning of each fiscal year,
45 the administrator's or department's annual 5MBE contracting goal based upon a
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I project identification survey listing all upcoming projects, estimating the probable
2 monetary value, the projected bid advertisement date and the necessary qualifications.
3 (8) Department directors shall, whenever practicable:
4
5 a. Separate discrete and unconnected work elements from projects for
6 separate contracts, where separation will not cause substantial adverse fiscal,
7 administrative, or legal impact;
8 b. Divide procurements into component parts or work elements on a report so
9 that the City Manager can determine which small businesses are available to
10 participate as subcontractors; and
II c. Establish delivery schedules that do not discourage small or large business
12 participation, especially, in master agreements.
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15 Sec. 2-205. Equal opportunities
16
17 The City shall develop and use race- and gender-neutral measures to facilitate the
18 participation of 5MBEs in City contracting activities. These measures shall include, but are
19 not limited to:
20
21 (I) Arranging solicitation times for the presentations of bids, quantities,
22 specifications, and delivery schedules so as to facilitate the participation of interested
23 persons.
24 (2) Providing timely information on contracting procedures, bid preparation, and
25 specific contracting opportunities.
26 (3) Holding pre-bid conferences, where appropriate, to explain the projects and to
27 encourage potential bidders to solicit available S/MBEs as subcontractors or as joint
28 venture participant.
29 (4) Adopting prompt payment procedures, including requiring by contract that
30 contractors pay their direct subcontractors within a stated period ofreceipt of payment
31 from the City, subject to appropriate exceptions.
32 (5) Reviewing bonding and insurance requirements to eliminate unnecessary barriers
33 to contracting with the City.
34 (6) Maintaining a bidders list, consisting of all persons bidding on City prime
35 contracts and bidding or quoting on City-funded subcontracts.
36 (7) Providing technical assistance, which may include:
37 a. A surety bonding assistance and support program to provide access to
38 surety bonding and contract financing.
39 b. A mentor-protege program.
40
41
42 Sec. 2-206. Program eligibility.
43
44 Only a business that is managed and controlled by socially or economically
45 disadvantaged(SED) owners may be certified as a S/MBE, provided:
46
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I (I) A business must not be subject to any formal or informal restrictions that limit the
2 discretion of the SED owner(s). There can be no restrictions through corporate charter
3 provisions, by-law provisions, contracts or any other formal or informal devices that
4 prevent the SED owner(s), without the cooperation or vote of any non-SED person,
5 from making any business decision of the business.
6 (2) The SED owner(s) must possess the power to direct or cause the direction of the
7 management and policies of the business and to make day-to-day as well as long-term
8 decisions on management, policy and operations.
9 (3) The SED owner(s) may delegate various areas of the management, policyrnaking
10 or daily operations of the business to persons who are not SED. Such delegations of
II authority must be revocable, and the SED owners must retain the power to hire and
12 fire any such person. The SED owners must exercise control over the business's
13 operations, work, management and policies.
14 (4) The SED owner(s) must have an overall understanding of, and managerial and
15 technical competence, experience and expertise, directly related to the business's
16 operations and work. The SED owner(s) must have the ability to intelligently and
17 critically evaluate information presented by other participants in the business's
18 activities and to make independent decisions concerning the business's daily
19 operations, work, management, and policymaking.
20 (5) If any law requires the owners to have a particular license or other credential to
21 operate, own and/or control a certain type of business, then the SED owner(s) must
22 possess the required license or credential. If the law does not so require, that the
23 owner( s) lacks such license or credential is a factor in determining whether the SED
24 owner(s) actually controls the business.
25 (6) A SED owner cannot engage in outside employment or other business interests
26 that conflict with the management of the business or prevent the owner from devoting
27 sufficient time and attention to the affairs of the business to manage and control its
28 activities.
29
30 (d) Only an independent business may be certified as a SIMBE. An independent business is
31 one whose viability does not depend on its relationship with another business. Recognition of
32 an applicant as a separate entity for tax or corporate purposes is not necessarily sufficient to
33 demonstrate that a business is independent. In determining whether an applicant is an
34 independent business, the City manager will:
35 (I) Scrutinize relationships with non-S/MBEs in such areas as personnel, facilities,
36 equipment, financial and/or bonding support, and other resources.
37 (2) Consider whether present or recent employer/employee relationships between the
38 SED owner(s) of the applicant and non-SMBEs or persons associated with non-
39 5MBEs compromise the applicant's independence.
40 (3) Examine the applicant's relationships with non-SMBE prime Contractors to
41 determine whether a pattern of exclusive or primary dealings with a prime contractor
42 compromises the applicant's independence.
43 (4) Consider the consistency of relationships between the applicant and non-SMBEs
44 with normal industry practice.
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I (e) In order to be certified as an 5MBE, a business must be a small business enterprise and
2 must have a physical location, in the City's contracting marketplace, from which it engages in
3 for-profit activities in the scope(s) of its expertise.
4 (f) An applicant shall be certified only for specific types of work in which the SED owner(s)
5 has the ability and expertise to manage and control the business's operations and work.
6 (g) The City shall certify the eligibility of joint ventures in which the joint venture
7 participant are 5MBEs and non-SMBEs.
8 (h) In lieu of conducting its own investigation to determine whether an applicant is eligible
9 for certification, the City may consider a formal certification by another entity to determine
10 whether the applicant meets the requirements of the program, provided that the City manager
II determines that the certification standards of such entity are comparable to those of the City.
12 (i) Where federal or state law or regulations or any agreement between the City and a federal
13 or state agency requires different eligibility standards, the applicable federal or state standards
14 shall apply, including, if applicable, the regulations promulgated by the United States
15 Departments of Transportation and Housing for contracts involving federal funds. "''here the
16 City is to receive, apply, administer, or use funds from the federal government or the state
17 government or any entity, agency, or grantee of either of them, if the City is required to apply
18 a disadvantaged business program or program whose purposes are to help ensure
19 opportunities for small businesses owned by socially and economically disadvantaged
20 persons, that other program, instead of this chapter, shall apply in the award and
21 administration of the contract.
22 (j) The certification status of all 5MBEs shall be reviewed biannually by the City manager.
23 Failure of a 5MBE to seek recertification by filing the necessary documentation with the City
24 manager within ninety (90) days from the date of receipt of written notice shall result in
25 decertification.
26 (k) It is the responsibility of the 5MBE to notify the City manager of any change in its
27 circumstances affecting its continued eligibility for the program. Failure to do so within a
28 reasonable time ofthe change may result in the business's decertification.
29 (I) The City manager shall decertify a business that does not continuously meet the eligibility
30 criteria.
31 (m) A business whose average annual gross receipts exceed the size standards for SBEs for
32 three (3) consecutive years shall graduate from the program.
33 (n) The City manager may decertify a 5MBE that repeatedly fails to respond to requests for
34 quotations from bidders who timely solicit participation on a contract, attend relevant pre-bid
35 conferences, or honor bids in good faith.
36 (0) A business that has been denied certification or recertification or been decertified may
37 protest the denial or decertification as follows:
38 (I) Within (7) days of receipt of denial of certification or recertification, or notice of
39 intent to decertify, the business may protest such action in writing to the City manager.
40 (2) A hearing shall be held by the City manager at which the business may present
41 additional facts and evidence in support of its eligibility. The City manager shall
42 control all aspects of the hearing, including scheduling, conduct, witnesses, and
43 evidence, and may request the attendance of witnesses and production of documents.
44 The applicant's failure to comply promptly with these requests may be grounds for
45 denial of relief sought by the applicant.
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I (3) The City manager shall send notice of the written decision to the business within
2 thirty (30) days ofthe hearing. The City manager's decision shall be final.
3 (p) A business found to be ineligible cannot apply for certification for one year after the
4 effective date of the final decision.
5
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7 Sec. 2-207. Goals
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9 (a) Annual goal. Small business participation goals will be set on a procurement by
10 procurement basis as set forth in this article. At the request of the City commission, but no
II less than on an annual basis, the City Manager shall provide a formal report on small business
12 utilization and availability data to the City commission. Upon evaluating such data, the City
13 commission may establish or revise an annual participation goal for the next fiscal year.
14 (b) Annual budget detail. Each department shall, by no later than October I, provide the
15 City Manager with its annual budget detail. The City Manager shall compile a prospective
16 procurement list based on the annual budget detail received from the individual departments
17 and make these listings available to the City Commission for their use and consideration in
18 establishing procurement goals and to SMDEs for the purpose of providing them with
19 advance notice of upcoming opportunities.
20 (c) Goals for procurements over twenty-five thousand dollars. Specific goals for each bid or
21 proposal shall be adopted on a procurement by procurement basis.
22 (I) Criteria for bid or proposal goal establishment. In setting bid or proposal goals,
23 the following factors shall be considered:
24 a. The type of work required;
25 b. The contracting and subcontracting opportumtles for small businesses,
26 including support and ancillary services, and the number of certified small
27 businesses available in comparison with other registered vendors;
28 c. Past and current experience of the City in meeting its goal and the results
29 and reasons therefore; and
30 d. Special circumstances relating to the procurement including, but not
31 limited to, scheduling constraints.
32 (d) The department responsible for the procurement shall prepare a report that identifies its
33 various components. The report will be submitted to the City Manager outlining the potential
34 contracting and subcontracting opportunities and the estimated percentage that each bears to
35 the total bid, proposal, work authorization, or procurement. The report shall show the scope of
36 the work for each component that has potential for being subcontracted and the qualifications
37 'required of the subcontractor to do the work if they are not evident in the scope of work. The
38 report shall also identify if the procurement has any other specific requirements such as may
39 be imposed by a federal/state grant. The report is forwarded to the City Manager.
40 ( e) The City Manager then compares the report against the listing of certified small business
41 vendor database to determine the availability of small businesses qualified to do the work in
42 each potential subcontract component, reviews the listing of other vendors and calculates the
43 goal for each bid, proposal and work authorization. Upon calculating the goal, the City
44 Manager shall provide the completed a report, the list of qualified small business vendors and
45 the list of other vendors to the procurement official, the department responsible for the
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I procurement, and all members of the goal setting team. The individual goal approved by the
2 City Manager shall become final.
3 (f) No individual procurement goal for small business participation may exceed 50 percent. If
4 there are no available certified small businesses for the procurement, no goal will be
5 established.
6 (g) The established goal shall be applied to the full monetary value of the procurement; no
7 portion of the procurement is exempt from consideration in determining whether the goal was
8 met or not.
9 (h) In case of a certified small business submitting a bid as a prime contractor, the small
10 business is credited with meeting the percentage of the procurement goal that the small
II business will perform with its own forces plus the percentage of subcontractors awarded to
12 other certified small businesses.
13 (i) A single purpose joint venture or partnership consisting of a small business where the
14 small business owns and controls at least 51 percent of the entity and a non-small business,
15 functioning as a prime contractor, will be credited with small business participation on the
16 basis of percentage of ownership, participation in the work, risk and profit by the small
17 business.
18 (j) Bidders or proposers will receive credit for small business participation goal attainment
19 only for subcontractors who are certified and licensed, if required, in the specific area of
20 expertise for which credit is sought at the time of bid or proposal opening.
21 (k) Quotes for small procurements valued at $2,500.00 to $25,000.00. Whenever
22 practicable, the procurement official shall obtain quotes from small businesses when they are
23 listed on the computerized supplier lists by NIGP codes.
24 i (I) Procurement card and other purchases valued at less than twenty-five hundred dollars.
25 The procurement official shall encourage the use of small businesses.
26 (m) For procurements using requests for proposals, the procurement official or, if applicable,
27 evaluation team established to evaluate the proposals, shall consider compliance with the
28 small business goals as a material criterion for selection, i.e., such goals shall be given
29 significant weight.
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33 Sec. 2-208. Counting participation of 5MBEs.
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35 (a) 5MBEs that are owned by SED persons who are not blacks or women may be counted by
36 the bidder towards either 5MBE goal.
37 (b) The entire amount of that portion of a construction contract that is performed by the
38 5MBE's own forces shall be counted, as well as the cost of goods obtained or leased by the
39 5MBE for the work of the contract (except goods the 5MBE subcontractor or joint venture
40 partner purchases or leases from the prime contractor or its affiliate).
41 (c) The entire amount of fees or commissions charged by a 5MBE for providing a bona fide
42 service, such as professional, technical, consultant or managerial services, or for providing
43 bonds or insurance specifically required for the performance of a contract, shall be counted,
44 provided the fee is reasonable and not excessive as compared with fees customarily charged
45 for similar services.
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I (d) When a 5MBE performs as a participant in a joint venture, only the portion of the total
2 dollar value ofthe contract equal to the distinct, clearly defined portion of the work of the
3 joint venture's contract that the 5MBE performs with its own forces and for which it is
4 separately at risk shall be counted.
5 (e) Only expenditures to a 5MBE that is performing a commercially useful function shall be
6 counted. To determine whether a business is performing a commercially useful function, the
7 City will evaluate the amount of work subcontracted, industry practices, whether the amount
8 the business is to be paid under the contract is commensurate with the work it is actually
9 performing and other relevant factors. To perform a commercially useful function, the 5MBE
10 must be responsible, with respect to goods used on the contract, for negotiating price,
II determining quality and quantity, ordering the goods, installing (where applicable) and paying
12 for the goods itself. A 5MBE does not perform a commercially useful function ifits role is
13 limited to that of an extra participant in the contract through which funds are passed in order
14 to obtain the appearance of 5MBE participation. If a 5MBE subcontracts a greater portion of
15 the work of a contract than would be expected on the basis of normal industry practice, it is
16 presumed not to perform a commercially useful function. When a 5MBE is presumed not to
17 be performing a commercially useful function, the 5MBE may present evidence to rebut this
18 presumption at a time and manner as determined by the City manager.
19 (f) One hundred (100) percent of the cost ofthe goods obtained from a 5MBE manufacturer
20 or regular dealer shall be counted. "Manufacturer" means a business that operates or
21 maintains a factory or establishment that produces, on the premises, the goods required under
22 the contract. "Regular dealer" means a business that owns, operates, or maintains a store,
23 warehouse, or other establishment in which the goods of the general character described by
24 the specifications or required under the contract are bought, kept in stock, and regularly sold
25 or leased to the public in the usual course of business. To be a regular dealer, the business
26 must be an established business that engages, as its principal business and under its own
27 name, in the purchase and sale or lease of the goods. Packagers, manufacture representatives,
28 or other persons who arrange or expedite transactions are not regular dealers.
29 (g) One hundred (100) percent of the fees for the delivery of goods required on ajob site
30 shall be counted only if the payment and amount of such fees are customary in the applicable
31 industry. The cost ofthe goods shall not be counted towards the fees.
32 (h) If a 5MBE is decertified during its performance of a contract, the dollar value of work
33 performed after it has ceased to be certified shall not be counted.
34 (i) In determining achievement of project specific goals, the participation of a 5MBE shall
35 not be counted until that amount has been paid to the 5MBE.
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38 Sec. 2-209. Contract pre-award compliance procedures.
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40 (a) The City manager may prequalify all bidders or proposers based upon their efforts to
41 ! ,meet program objectives prior to the solicitation of bids for construction contracts with an
42 ,estimated contract amount over two hundred thousand dollars ($200,000.00) and proposals for
43 'professional services contracts with an estimated contract amount over thirty thousand dollars
44 ($30,000).
45 (I) The City manager shall evaluate the bidder's or proposer's past, current and future
46 activities and achievements in utilizing M/WBEs on City projects and private sector
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23 , (f) In determining whether a bidder has made good faith efforts, the performance of other
24 ' bidders in meeting the project specific goals may be considered.
25 (g) A signed letter of intent from all listed 5MBEs describing the work, including goods and
26 services to be performed or provided by the 5MBE and the agreed upon dollar value for bids
27 or percentage of professional services pursuant to a request for proposals or description of the
28 services to be rendered pursuant to a request for qualifications shall be due in accordance with
29 the City manager's instructions.
30 (h) The City manager shall review the participation plan prior to award, including the scope
31 of work and the letters of intent from 5MBEs. The City manager may request clarification in
32 writing of items listed in the participation plan, provided such clarification shall not include
33 the opportunity to augment listed 5MBE participation or good faith efforts.
34 (i) If the City manager determines that the participation plan demonstrates that the project
35 specific goals have been achieved or good faith efforts were made, or that award is in the best
36 interest of the City, then the City manager shall recommend award to the City council.
37 (j) Ifthe City manager finds that a bidder did not make good faith efforts, the City manager
38 shall send notice ofthe finding to the bidder.
39 (I) The bidder shall have seven (7) days from receipt of the notice to notifY the City
40 manager of its request for a hearing.
41 (2) The City manager shall hold a hearing within fourteen (14) days, and shall control
42 all aspects of the hearing, including scheduling, conduct, witnesses, and evidence, and
43 may request the attendance of witnesses and production of documents. The bidder's
44 failure to comply promptly with these directions and orders may be grounds for denial
45 of the relief sought.
projects, and its recruitment, retention and promotion of minority and women
employees and other relevant information.
(2) The City manager may refuse to prequalify a bidder or proposer.
(3) The City manager's denial of prequalification may be appealed to the City council
in writing within seven (7) days of receipt. The City council's decision shall be final.
(4) That a bidder or proposer is denied prequalification on a contract does not
prohibit it from seeking to prequalified on future contracts.
(5) A prequalified bidder or proposer must make good faith efforts to meet project
specific goals.
(b) In all solicitations for which project specific goals have been established, the bidder shall
submit a participation plan when required by the City manager detailing all subcontractors
from which the bidder solicited bids or quotations and its achievement of the project specific
goals or its good faith efforts to do so. The plan shall be submitted in accordance with the
schedule and instructions required by the City manager. If the bidder fails to achieve the
project specific goals, documentation of its good faith efforts to do so is due at the time
specified in the solicitation. The list of 5MBES provided by the City to a bidder establishes
, the universe from which a bidder must solicit 5MBEs.
(c) Any agreement between a bidder and a 5MBE in which the bidder requires that the
5MBE not provide subcontracting quotations to other bidders is prohibited.
(d) 5MBEs shall respond to relevant requests for quotations.
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I (3) The City manager shall send notice to the bidder ofthe written decision on the
2 appeal within fourteen (14) days of the hearing. The City manager's decision shall be
3 final.
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5 Sec. 2- 210 Good faith efforts.
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7 (a) Contractors submitting bids or proposals to provide goods, services and construction to
8 the City shall attempt to comply with small business participation goals. In the event the goals
9 are not achieved, the contractor must include with its bid evidence of good faith efforts to
10 achieve the goals. A bidder or proposer may still be selected subject to the provisions of this
II article, and the City shall consider the following criteria in determining good faith efforts:
12 (I) Attendance at the pre-bid conference, if held;
13 (2) Whether and when the contractor provided written notice to all certified small businesses
14 that perform the type of work to be subcontracted appearing on the listings by commodity
15 codes established by NIGP as published by the City Manager and advising the small
16 businesses:
17 a. Of the specific work the contractor intends to subcontract;
18 b. That their interest in the contract is being solicited; and
19 c. How to obtain information for the review and inspection of contract plans and
20 specifications;
21 (3) Whether the contractor selected feasible portions of work to be performed by small
22 businesses, including, where appropriate, dividing work elements in any manner that
23 maximize the opportunity for small business participation. The ability of the contractor to
24 perform the work with its own work force will not in itself excuse a contractor from making
25 positive efforts to meet goals for small business participation on the contract;
26 (4) Whether the contractor considered all quotations received from small businesses, and for
27 those quotations not accepted, the contractor shall provide a written explanation of why the
28 small business will not be used during the course of the contract. Receipt of a lower quotation
29 from a non-small business will not in itself excuse a contractor's failure to meet project goals;
30 (5) Whether the contractor provided interested small businesses assistance in reviewing the
31 contract plans and specifications;
32 (6) Whether the contractor assisted interested small business businesses in obtaining
33 information regarding required bonding, lines of credit or insurance if such assistance was
34 necessary;
35 (7) Whether the contractor advertised the subcontracting opportunities in publications of
36 general circulation, trade associations, and small business focused media;
37 (8) Whether the contractor followed up initial solicitations of interest by contacting small
38 businesses to determine with certainty whether the small business was interested;
39 (9) Whether the contractor negotiated in good faith with interested small businesses, based
40 on a reasonable investigation of their capabilities;
41 (10) Whether the contractor effectively used the services of available small business
42 associations (community organizations, contractors business groups); local, state and federal
43 small business assistance offices; and other organizations that provide assistance in the
44 recruitment and placement of small business businesses;
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(II) Whether the contractor has utilized small business subcontractors on other (City and
private sector) contracts within six months preceding the date of the specific contract under
consideration;
(12) Whether the contractor's efforts were merely pro forma, given all relevant
circumstances, and could not reasonably be expected to provide sufficient small business
participation to meet the goals.
(b) This list is not intended to be all inclusive, and the City will consider the quality,
quantity, intensity and timeliness of the contractor's efforts. The City Manager shall develop
procedures and clarifications which provide objective guidelines pertaining to the criteria for
determining of good faith efforts.
(c) It is the responsibility of the contractor to exercise good faith efforts. Any act or omission
by the City shall not relieve the bidder or proposer of this responsibility.
Sec. 2- 211
Contracts
The following shall be included in the body of the contract with the City for the provision of
goods, services, and construction:
(I) A provision indicating that this article is incorporated by reference.
(2) A requirement that the contractor shall comply with the commitment to use small
businesses made in their proposal or bid. Small businesses that no longer remain associated
with the contract of the contractor shall be replaced with other certified small businesses
unless approval to the contrary is granted by the City Manager manager.
(3) A requirement to maintain relevant records and information necessary to document
compliance with this article and to permit the City to inspect and audit such records.
(Code 1979, 9 2-462)
Sec. 2-212
Contract performance compliance procedures.
(a) The Finance Department will establish procedures for monitoring and evaluating
program performance and compliance. Failure to comply with the small business
requirements of an awarded contract may result in suspension or debarment of the businesses
or individuals involved in accordance with all applicable articles. Contracts shall provide that
the participation plan is binding on the contractor. Project specific goals become elements of
performance by the contractor in favor of the City.
(b) The contractor shall provide a listing of all subcontractors to be used in the performance
of the contract, and subcontractor payment information to the City with each request for
payment submitted to the City. The director and the user department shall monitor
subcontractor participation during the course of the contract and shall have reasonable access
to all contract-related documentation held by the contractor relevant to the contract.
( c) After the City and the contractor have executed the contract, the contractor shall not
make changes to the participation plan or substitute 5MBEs named in the participation plan
without the prior written approval of the City manager. Unauthorized changes or substitutions
shall be a violation of this chapter, and may constitute grounds for rejection of the bid or
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I proposal, termination of the contract for breach, the withholding of payment and/or subject
2 the contractor to contract penalties or other sanctions. When a change is requested:
3 (I) All requests for changes or substitutions of the subcontractors named in the
4 participation plan shall be made to the City manager on a form provided or approved
5 by the City, and shall clearly and fully set forth the basis for the request. A contractor
6 shall not substitute a subcontractor or perform the work designated for a subcontractor
7 with its own forces or with any other subcontractor unless and until the City manager
8 approves such substitution in writing. A contractor shall not allow a substituted
9 subcontractor to begin work until both the director and the City's project manager have
10 approved the substitution.
II (2) The facts supporting the request must not have been known nor reasonably should
12 have been known by either party prior to the submission of the participation plan. The
13 contractor must negotiate with the subcontractor to resolve the problem. If requested
14 by either party, the City shall facilitate such a meeting. Where there has been a
15 mistake or disagreement about the scope of work, the 5MBE can be substituted only
16 where an agreement cannot be reached on commercially reasonable terms for the
17 correct scope of work.
18 (3) The City manager shall allow changes or substitutions of the subcontractor only
19 on the following bases:
20 a. Unavailability after receipt of reasonable notice to proceed;
21 b. Failure of performance;
22 c. Financial incapacity;
23 d. Refusal by the subcontractor to honor the bid or proposal price or
24 qualifications description;
25 e. Mistake of fact or law about the elements of the scope of work of a
26 solicitation where agreement on commercially reasonable terms cannot be
27 reached;
28 f. Failure of the subcontractor to meet insurance, licensing or bonding
29 requirements; or
30 g. The subcontractor's withdrawal of its bid or proposal or qualifications
31 description.
32 (4) The City manager shall give written notice to the contractor and the affected
33 subcontractor of the decision whether to permit or deny the proposed change or
34 substitution.
35 (5) Where the contractor has established the basis for the substitution to the
36 satisfaction of the City manager, or if the City requires the substitution of a
37 subcontractor listed in the participation plan, the contractor shall make good faith
38 efforts to fulfill the participation plan. The contractor may seek the assistance of the
39 City in obtaining a new 5MBE subcontractor. If the project specific goal(s) cannot be
40 reached and good faith efforts have been made, the contractor may substitute with a
41 non-SMBE.
42 (d) If a contractor plans to hire a subcontractor on any scope of work that was not previously
43 disclosed in the participation plan, the contractor shall obtain the approval of the City
44 manager to modify the participation plan and must make new good faith efforts to ensure that
45 5MBEs have a fair opportunity to bid on the new scope of work.
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(e) Changes to the scopes of work shall be documented by the user department at the time
they arise, to establish the reasons for the change and the effect on achievement of the 5MBE
goals.
(f) If the City manager determines that the contractor has failed to comply with the
provisions of the contract, the City manager shall notify the contractor in writing of the
deficiencies. The contractor shall have fourteen (14) days, or such time as specified in the
contract to cure the deficiencies or establish that there are no deficiencies. If the deficiencies
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are not cured, the City shall have the right to take all lawful actions.
Sec. 2-213
Contract language required
Every contract let by the City for the performance of work shall contain a provision
requiring the prime contractor to certify in writing that all small business subcontractors, sub-
consultants, and suppliers have been utilized in accordance with the participation levels
provided by the prime contractor at the time of contract and have been paid for work and
materials from previous progress payments received, less any retainage, prior to receipt of any
further progress payments. During the contract and upon completion of the contract, the City
shall require documentation from the prime contractor to certify utilization and payment to
small business subcontractors, sub-consultants or suppliers. This provision in no way creates
any contractual relationship between any subcontractor, sub-consultant, or supplier and the
City or any liability on the City for the contractor's failure to make timely payment to the
subcontractor, sub-consultant or supplier.
Sec. 2-214 Penalties.
(a) The following violations of this chapter are unlawful and may be prosecuted as a
misdemeanor.
(1) Providing false or misleading information to the City in connection with an
application for or challenge to certification, recertification or decertification as a
5MBE.
(2) Providing false or misleading information to the City in connection with
submission of a bid, responses to requests for qualifications or proposals, good faith
efforts documentation, post-award compliance or other program operations.
(3) Substituting 5MBE subcontractors without prior approval.
(4) Committing any other violations of this chapter.
(b) A contractor is subject to withholding of payments under the contract, termination of the
contract for breach, contract penalties, decertification as a 5MBE, or deemed non-responsive
or not responsible in future City solicitations and contract awards, if it is found to have:
(I) Provided materially false or misleading information in connection with this
chapter, an application for certification or recertification.
(2) Provided false or misleading information in connection with the submission of a
bid or proposal or documentation of good faith efforts, post-award compliance, or
other program operations.
(3) Failed in bad faith to fulfill project specific goals, thereby materially breaching
the contract.
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(4) Repeatedly failed to comply in good faith with substantive provisions of this
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Sec. 2-215
5MBE Program advisory board.
(a) The City may appoint a board to advise City Commission on the program and to review
proposed changes to this article and make recommendations to the City Commission for
modification of the program.
(b) The advisory board membership shall be appointed by City Commissioners. The City
Manager shall serve ex officio.
(c) Members shall serve two-year, staggered terms.
(d) Membership shall be composed of the following:
(I) Two (2) 5MBE construction business owners or representatives of disadvantaged,
minority or women construction trade associations.
(2) One (I) non-SMBE construction business owner or representative of general or
subcontracting construction trade associations.
(3) Two (2) 5MBE professional services business owners or representatives of
disadvantaged, minority or women professional services associations.
(4) One (I) non-SMBE professional services business owner or representative of
professional services associations.
(5) One (I) 5MBE non-professional services or commodities business owner or
disadvantaged, minority or women trade association.
(e) Each member shall serve without compensation and may be removed by the City
Commission without cause. All members must be residents of Palm Beach County and
preference shall be given to residents of the City.
(f) A chair and vice-chair shall be elected by a majority vote of the small business board and
shall serve for a term of one year. The duties of the chair shall be to preside at small business
board meetings. The vice-chair shall perform the duties of the chair in the chair's absence.
(g) Meetings of the small business board shall be held at the call of the chair or according to
a meeting schedule adopted by the board. Four members of the small business board shall
constitute a quorum and a majority of the quorum shall be sufficient to take action. The small
business board shall adopt such rules for its operation, meetings and proceedings as it deems
desirable.
Sec. 2-216
Annual Program review.
(a) The City Manager shall make an annual report to the City Commission, detailing the
City's performance under the program department by department for the preceding fiscal year.
(b) The City Commission will review this report, including the annual participation goals
and the City's progress towards meeting the annual participation goals and eliminating
discrimination in its marketplace, and revise the program as necessary to meet legal and
program requirements.
(c) If the City Commission finds that the objectives ofthe program have been achieved, the
City Commission, by super-majority vote may discontinue the program.
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Sec. 2-217
Notice.
All notices required or allowed by this chapter shall be in writing and shall be given either by
personal delivery, fax, or United States mail, addressed to the last-known address of the
addressee. The notice shall be deemed given at the time of actual delivery, if it is personally
delivered or sent by fax. If sent by United States mail, it shall be deemed given upon the third
calendar day following the day on which it is deposited with the United States Postal Service.
Sec. 26-218 Severability.
If any section, subsection, clause, or provision of this chapter is held to be invalid by a court
of competent jurisdiction, the remainder of the chapter shall not be affected by such
invalidity.
Sec. 26-219 Waiver
(a) Whenever an emergency procurement is authorized by the City Manager pursuant to the
procurement code, the requirements of this article shall be deemed waived.
(b) Whenever the procurement official makes a single source determination pursuant to the
procurement code, the requirements of this article shall be deemed waived.
(c) The City Manager may waive compliance with this article if such compliance is no
longer possible or practicable during the period of performance of the contract.
Sec. 26-220 Limitation of Remedy
In the event of a challenge to the granting of any contract to a 5MBE by any other party, the
challenging party the sole remedy to the challenging party shall be the costs the challenging
party incurred in preparing its bid or proposal.
Section 3.
All laws and ordinances applying to the City of Boynton Beach in
conflict with any provision of this ordinance are hereby repealed.
Section 4. Should any section or provision of this Ordinance or any portion
thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not
affect the remainder of this Ordinance.
Section 5.
Section 6.
Authority is hereby given to codify this Ordinance.
This Ordinance shall become effective immediately.
FIRST READING this ~ day of 5 e DTEMSER., 2006.
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SECOND, FINAL READING AND PASSAGE this ~ day of Dc;r. , 2006.
CITY OF BOYNTON BEACH, FLORIDA
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Commissioner ___l~Q_~~
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ATTEST:
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