Last Modified on 05/07/2009 09:05:53Chapter 18 HUMAN RELATIONS*
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Charter references: Personnel system, ch. XXV.
Cross references: Administration, ch. 2; Equal Opportunity Department, § 2-34.01.
State law references: Civil rights, A.R.S. § 41-1401 et seq.
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Article I. In General
Sec. 18-1. Declaration of policy.
Sec. 18-2. Administrative provisions.
Sec. 18-3. Definitions.
Sec. 18-4. Prohibited acts.
Sec. 18-5. Filing of charge; procedures; powers and enforcement; Department authority; investigation; findings.
Sec. 18-6. Refusal to cooperate; failure to conciliate.
Sec. 18-7. Penalties.
Sec. 18-8. Conciliation agreement violations.
Sec. 18-9. Construction of ordinance.
Sec. 18-9.01. Effect of State and federal laws.
Sec. 18-9.02. Severability.
Article II. Sexual Orientation Nondiscrimination
Sec. 18-10.01. City employment.
Sec. 18-10.02. City services.
Sec. 18-10.03. Enforcement.
Article III. Fair Housing
Sec. 18-11. Declaration of policy.
Sec. 18-11.01. Definitions.
Sec. 18-11.02. Discrimination due to familial status.
Sec. 18-11.03. Exempt sales and rentals.
Sec. 18-11.04. Religious organization and private club exemption.
Sec. 18-11.05. Housing for older persons exempted; definition; rules.
Sec. 18-11.06. Appraisal exemption.
Sec. 18-11.07. Effect on other law.
Sec. 18-11.08. Administration by Director.
Sec. 18-11.09. Rules.
Sec. 18-11.10. Complaints.
Sec. 18-11.11. Reports; studies.
Sec. 18-11.12. Cooperation with other entities.
Sec. 18-11.13. Subpoenas; discovery.
Sec. 18-11.14. Right to examine and copy evidence; summoning witnesses and documents and taking testimony; right to counsel, court aid; process; service and return; fees of witnesses.
Sec. 18-11.15. Cooperation with other agencies.
Sec. 18-11.16. Discrimination in sale or rental.
Sec. 18-11.17. Publication of sales or rentals.
Sec. 18-11.18. Inspection of dwelling.
Sec. 18-11.19. Entry into neighborhood.
Sec. 18-11.20. Prohibition of intimidation.
Sec. 18-11.21. Discrimination due to handicap; definition.
Sec. 18-11.22. Residential real estate related transaction; definition.
Sec. 18-11.23. Brokerage services.
Sec. 18-11.24. Complaints.
Sec. 18-11.25. Answer to complaint.
Sec. 18-11.26. Investigation.
Sec. 18-11.27. Additional or substitute respondent.
Sec. 18-11.28. Conciliation.
Sec. 18-11.29. Temporary or preliminary relief.
Sec. 18-11.30. Investigative reports.
Sec. 18-11.31. Reasonable cause determination.
Sec. 18-11.32. Dismissal of complaint.
Sec. 18-11.33. Civil action.
Sec. 18-11.34. Court-appointed attorney.
Sec. 18-11.35. Relief granted.
Sec. 18-11.36. Civil action by City Attorney.
Sec. 18-11.37. Pattern or practice cases.
Sec. 18-11.38. Prevailing party; fees and costs.
Sec. 18-11.39. Effective date.
Article IV. City Construction Contractors' Affirmative Action Requirements
Sec. 18-12. Declaration of policy.
Sec. 18-13. Definitions.
Sec. 18-14. Exemptions.
Sec. 18-15. Requirements of contractors.
Sec. 18-16. Failure of contractor to make good faith effort.
Sec. 18-17. Administrative responsibility.
Sec. 18-18. Objection to award.
Article V. Supplier's and Lessee's Affirmative Action Requirements
Sec. 18-19. Declaration of policy.
Sec. 18-20. Definitions.
Sec. 18-21. Exemptions.
Sec. 18-22. Requirements of suppliers and lessees.
Sec. 18-23. Failure of suppliers or lessees to make good faith effort.
Sec. 18-24. Administrative responsibility.
Sec. 18-25. Objection to award.
Secs. 18-26– 18-99. Reserved.
Article VI. The Minority-Owned Business Enterprise, Woman-Owned Business Enterprise and Small Business Enterprise Participation Programs
Sec. 18-100. Adoption of findings.
Sec. 18-101. Definitions.
Sec. 18-102. Statement of policy.
Sec. 18-103. Duties of the City Manager for the implementation of MBE/WBE/ SBE Participation Programs in City construction contracting.
Sec. 18-104. Annual aspirational MBE, WBE and SBE participation goals.
Sec. 18-105. Project MBE/WBE/SBE participation goals.
Sec. 18-106. Contractor's requirements regarding submission of an MBE/WBE/SBE Utilization Plan.
Sec. 18-107. Review of bid submission and MBE/WBE/SBE Plan.
Sec. 18-108. MBE/WBE/SBE participation clause.
Sec. 18-109. Maintenance of MBE/WBE/SBE records and reports by contractors.
Sec. 18-110. Failure to meet MBE/WBE/SBE participation goals.
Sec. 18-111. Failure of MBE/WBE/SBE to comply with program requirements.
Sec. 18-112. Miscellaneous.
Secs. 18-113– 18-199. Reserved.
Article VII. The Minority-Owned Business Enterprise, Woman-Owned Business Enterprise and Small Business Enterprise Procurement Program
Sec. 18-200. Adoption of findings.
Sec. 18-201. Definitions.
Sec. 18-202. Statement of policy.
Sec. 18-203. Duties of City Manager to implement MBE, WBE and SBE Procurement Program.
Sec. 18-204. SBE bid incentive.
Sec. 18-205. SBE Reserve Contract Program for goods, supplies and general services.
Sec. 18-206. Miscellaneous.
Secs. 18-207– 18-299. Reserved.
Article VIII. Certification of Minority-Owned Business Enterprises, Woman-Owned Business Enterprises and Small Business Enterprises
Sec. 18-300. Definitions.
Sec. 18-301. Administrative provisions.
Sec. 18-302. Minority-Owned Business Enterprise, Woman-Owned Business Enterprise and Small Business Enterprise Certification.
Sec. 18-303. Reserved.
Sec. 18-304. Appeals.
Article IX. Phoenix Women's Commission
Sec. 18-305. Creation; purpose.
Sec. 18-306. City of Phoenix Women's Commission– Composition; term of office.
Sec. 18-307. Appointment of officers; adoption of rules; quorum.
Sec. 18-308. Powers and duties of the Commission.
Secs. 18-309– 18-399. Reserved.
Article IX. Registered Domestic Partnerships
Sec. 18-400. Purpose.
Sec. 18-401. Defintion; domestic partnership.
Sec. 18-402. Declaration of domestic partnership; filing location; prohibition.
Sec. 18-403. Domestic partnerships; termination; effective date; notice to third parties; failure to give notice.
Sec. 18-404. City Clerk Department records and registration; fee.
Sec. 18-405. Rights of domestic partners; health care visitation.
Sec. 18-406. Legal effect of declaration of domestic partnership.
ARTICLE I.
IN GENERALSec. 18-1. Declaration of policy.
It is declared to be among the civil rights of the people of the City of Phoenix, Arizona, to be free from discrimination in public accommodations and employment, and for it to be contrary to the policy of the City and unlawful to discriminate against any person because of race, color, religion, sex, national origin, or marital status in places of public accommodation and employment and it is contrary to the policy of the City of Phoenix and is unlawful for employers doing business with the City of Phoenix that are vendors, suppliers or contractors and employ more than thirty-five persons to discriminate against any person because of sexual orientation.
(Ord. No. G-1121, § 1; Ord. No. G-1900, § 1; Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
Sec. 18-2. Administrative provisions.
A. Powers and duties of Phoenix Commission on Human Relations and Equal Opportunity Department.
1. There is created the Phoenix Commission on Human Relations. The Commission shall be composed of seventeen members appointed by the Mayor and City Council. Each member shall serve a term of three years with one-third of the terms expiring on June 30 of each year.
2. The Mayor and City Council shall appoint a chairperson for the Commission. The chairperson shall appoint a vice-chairperson. The vice-chairperson shall act as chairperson in the absence or disability of the chairperson, or in the event of a vacancy in that office.
3. A majority of the membership shall constitute a quorum except that if the chairman appoints a committee of the Commission, a majority of the members of the committee shall constitute a quorum of the committee. The concurrence of a majority of the members when in session as a Commission shall constitute an act of the Commission.
4. All recommendations of the Commission shall be filed with the Equal Opportunity Department and upon such filing shall be deemed public records of the City.
5. The Phoenix Commission on Human Relations shall:
a. Make periodic surveys of the existence and effect of discrimination in the City of Phoenix because of race, color, religion, sex, national origin, marital status, and sexual orientation in public accommodations and employment.
b. Foster positive intergroup relations and the elimination of discrimination based on race, color, religion, sex, national origin, marital status, and sexual orientation.
c. Publish the results of such studies, investigations and research as, in its judgment, will tend to promote good will and the elimination of discrimination.
d. Counsel and provide such information to persons subject to the provisions of this chapter as may be reasonably necessary to further compliance with the provisions of this chapter.
e. Plan, coordinate and conduct information, education and awareness programs.
f. Plan, coordinate and conduct programs to eliminate discrimination and racism.
g. Establish committees appointed by the chairman of the Commission from its membership and the community at large to assist the Commission in the execution of its duties.
h. At least once a year, report on its activities to the City Council.
6. The authority and responsibility for administering this chapter rests with the Director of the Equal Opportunity Department.
a. The Equal Opportunity Director may delegate his or her functions, duties and powers as they pertain to investigating, conciliating, hearing, determining, ordering, certifying, reporting or otherwise acting as to any work, business or matter under this chapter.
b. The Equal Opportunity Director shall administer programs and activities relating to discrimination in public accommodations and employment in such a manner as to further the purposes of this article.
7. In exercising the authority granted under this chapter the Equal Opportunity Director may:
a. Make studies with respect to the nature and extent of discriminatory practices in Phoenix.
b. Publish and disseminate reports, recommendations and information derived from such studies.
c. Cooperate with and render technical assistance to federal, State, local and other public or private agencies, organizations and institutions which formulate or carry out programs to prevent or eliminate discriminatory practices.
d. After notice and hearing, adopt, amend or rescind procedural rules and regulations to carry out the provisions of this chapter.
e. Conduct fact-finding conferences to aid any investigations or inquiry.
f. Issue administrative subpoenas to any person, on his or her own initiative or upon application of any party to a proceeding, ordering the attendance and testimony of witnesses or requiring the production for examination of documents relating to any matter pursuant to this chapter.
g. Subject to the provisions and restrictions of this chapter, cooperate with and enter into agreements with the United States Equal Employment Opportunity Commission, United States Department of Housing and Urban Development and agencies of the United States or the State of Arizona interested in practices governed by this chapter, accept funds from such agencies and carry out and perform the covenants and conditions of any written agreement with such agencies not inconsistent with the provisions of this article.
B. The City Attorney is empowered to take all necessary action in the appropriate court to secure the production of all records, documents, or other evidence necessary to assist the Equal Opportunity Department in carrying out the provisions of this article.
(Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
Sec. 18-3. Definitions.
In this article, unless the context otherwise requires:
1. Complainant means a person, including the Equal Opportunity Department, who files a complaint under this article.
2. Commission means the Phoenix Commission on Human Relations.
3. Department means the City of Phoenix Equal Opportunity Department.
4. Discriminate or discrimination means to make, directly or indirectly, any distinction with respect to any person or persons based on race, color, religion, sex, national origin, marital status, or sexual orientation.
5. Employee means any individual employed for pay to perform services for an employer covered by this article and whose activities are controlled and directed by the employer for whom the services are being performed.
6. Employer means a person who has one or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person but, for purposes of this article, the term does not include:
a. The United States or any department or agency thereof, a corporation wholly owned by the government of the United States, or an Indian tribe.
b. The State of Arizona or any department or agency thereof, the City of Phoenix or any political subdivision of the State, including any community college district or high school or common school district.
c. A bona fide private membership club (other than a labor organization) which is exempt from taxation under the Internal Revenue Code of 1986.
7. Employment agency means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for individuals opportunities to work for an employer and includes the employees of an employer charged with that responsibility.
8. Financial institution means any person or organization engaged in the business of lending money or guaranteeing loans.
9. Labor organization means any person, group of persons or organizations which is constituted for the purpose, either in whole or in part, of collective bargaining, dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or any other terms or conditions of employment; any person, group of persons or organizations participating in the hiring or referring for hire of any person, receiving applications for apprenticeship, participating in or conducting an apprenticeship program; and any conference, general committee, joint or system board or joint council so engaged which is subordinate to a national or international labor organization.
10. Marital status means unmarried, married, separated, widowed or divorced.
11. National origin pertains to the country or nation of origin of an individual or any of his or her forebears and also includes characteristics generally identified with persons so originating.
12. Person means an individual or group of one or more individuals such as but not limited to labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees in bankruptcy or receivers, and any other commercial entity as well as an individual of flesh and blood. The term "persons," when applied to any of the foregoing, includes members, representatives, officers and directors, agents, owners, lessees, operators, proprietors, managers, superintendents, and employees.
13. Places of accommodation means all public places of entertainment, amusement or recreation, all public places where food or beverages are sold, public places operated for the lodging of transients or for the benefit, use or accommodation of those seeking health or recreation and all establishments offering their services, facilities or goods to or soliciting patronage from the members of the general public. Any dwelling, any private club or any place which is in its nature distinctly private is not a place of public accommodation.
14. Religion means all aspects of religious observance and practice as well as belief.
15. Respondent means the person accused of a violation in a complaint filed under this article.
16. The term sex shall include, but is not limited to, all distinctions based on gender, pregnancy, childbirth or related medical conditions.
17. Sexual orientation means actual or perceived human male or female heterosexual, homosexual or bisexual orientation. The sexual orientation described herein must be between consenting adults.
(Ord. No. G-1121, § 1; Ord. No. G-1900, § 1; Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
Cross references: Definitions and rules of construction generally, § 1-2.
Sec. 18-4. Prohibited acts.
A. Discrimination in employment.
1. Nothing contained in this article shall be interpreted to require that the less qualified be preferred over the better qualified because of race, color, religion, sex, national origin, marital status, or sexual orientation. Nothing contained in this article shall be interpreted to require an employer doing business with the City of Phoenix to report the affirmative action efforts they have taken to recruit or hire applicants on the basis of marital status or sexual orientation.
2. It is an unlawful employment practice for an employer:
a. To fail or refuse to hire or to discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex, national origin, or marital status.
b. To limit, segregate or classify employees or applicants for employment in any way that would deprive any individual of employment opportunities or otherwise adversely affect the individual's status as an employee because of such individual's race, color, religion, sex, national origin, or marital status.
c. To coerce, intimidate, threaten or interfere with any person in the exercise of or enjoyment of any right granted or protected by this article, or on account of his or her having exercised or enjoyed, or having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected by this article.
d. To discriminate against any individual because of such individual's race, color, religion, sex, national origin, or marital status in admission to or employment in any apprenticeship or other training or retraining programs, including on-the-job training programs.
3. It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment or otherwise to discriminate against any individual because of such individual's race, color, religion, sex, national origin, or marital status.
4. It is an unlawful employment practice for a labor organization:
a. To exclude or to expel from its membership or otherwise to discriminate against any individual because of such individual's race, color, religion, sex, national origin, or marital status.
b. To limit, segregate or classify its membership or applicants for membership or to fail or refuse to refer for employment or otherwise discriminate against or adversely affect an individual's status as an employee or as an applicant for employment because of such individual's race, color, religion, sex, national origin, or marital status.
c. To cause, or attempt to cause, an employer to discriminate against an individual in violation of this section.
d. To coerce, intimidate, threaten or interfere with any person in the exercise of or enjoyment of, or having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this article.
e. To discriminate against any individual because of such individual's race, color, religion, sex, national origin, or marital status in admission to or employment in any apprenticeship or other training or retraining programs, including on-the-job training programs.
5. In addition to the provisions contained in section 18-4(a)(1) through section 18-4(a)(4), it is an unlawful employment practice for employers that are vendors, suppliers, or contractors doing business with the City of Phoenix which employ more than thirty-five persons:
a. To fail or refuse to hire or to discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions of privileges of employment because of such individual's sexual orientation.
b. To limit, segregate or classify employees or applicants for employment in any way that would deprive any individual of employment opportunities or otherwise adversely affect the individual's status as an employee because of such individual's sexual orientation.
c. To coerce, intimidate, threaten or interfere with any person in the exercise of or enjoyment of any right granted or protected by this article, or on account of his or her having exercised or enjoyed, or having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected by this article.
d. To discriminate against any individual because of such individual's sexual orientation in admission to or employment in any apprenticeship or other training or retraining programs, including on-the-job training programs.
6. It is an unlawful practice for any person to aid, abet, incite, compel or coerce any employer to commit an act prohibited under this article.
7. Exemptions. Notwithstanding any other provisions of this chapter, it is not an unlawful employment practice:
a. For an employer to hire and employ employees; for an employment agency to classify or refer for employment any individual; for a labor organization to classify its membership or classify or refer for employment any individual; or for an employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining program to admit or employ any individual in any such program, on the basis of the individual's race, color, religion, sex, national origin, marital status, or sexual orientation in those certain instances when race, color, religion, sex, national origin, marital status, or sexual orientation is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
b. For a school, college, university or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university or other educational institution or institution of learning is in whole or in substantial part owned, supported, controlled or managed by a particular religion or religious corporation, association or society, or if the curriculum of such school, college, university or other educational institution of learning is directed toward the propagation of a particular religion as long as the position in question is one whose purpose is to further the propagation of that religion.
c. For an employer to apply different standards of compensation or different terms, conditions or privileges of employment pursuant to a bona fide seniority system, merit system, or any other system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, national origin, marital status, or sexual orientation.
d. For an employer to use marital status as a factor in determining eligibility for participation in employee benefit programs.
8. Religious exemptions. Notwithstanding any other provision of this chapter, the prohibitions concerning marital status or sexual orientation shall not apply to bona fide religious organizations. The provisions of this article prohibiting discrimination on the basis of marital status or sexual orientation shall not be construed to prohibit or prevent any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised, or controlled by or in connection with a religious organization, from giving preference to persons of the same religion or denomination or from taking any action with respect to matters of employment which is calculated by the organization to promote the religious principles for which it is established or maintained.
B. Discrimination in public accommodations.
1. Discrimination in places of public accommodation against any person because of race, color, religion, sex, national origin, or marital status is contrary to the policy of the City of Phoenix and shall be deemed unlawful.
2. No person shall, directly or indirectly, refuse, withhold from, or deny to any person, or aid in or incite such refusal, denial or withholding of accommodations, advantages, facilities or privileges thereof because of race, color, religion, sex, national origin, or marital status, nor shall distinction be made with respect to any person based on race, color, religion, sex, national origin, or marital status in connection with the price or quality of any item, goods or services offered by or at any place of public accommodation.
3. It is unlawful for any owner, operator, lessee, manager, agent or employee of any place of public accommodation to directly or indirectly display, circulate, publicize or mail any advertisement, notice or communication which states or implies that any facility or service shall be refused or restricted because of race, color, religion, sex, national origin, or marital status or that any person, because of race, color, religion, sex, national origin, or marital status would be unwelcome, objectionable, unacceptable, undesirable or not solicited.
4. Exemptions.
a. Notwithstanding any other provision of this chapter, the prohibitions concerning marital status shall not apply to bona fide religious organizations. The provisions of this section prohibiting discrimination on the basis of marital status shall not be construed to prohibit or prevent any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised, or controlled by or in connection with a religious organization, from taking any action which is calculated by the organization to promote the religious principles for which it is established or maintained.
(Ord. No. G-1121, § 1; Ord. No. G-1759, § 2; Ord. No. G-1900, § 1; Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
State law references: Employment discrimination, A.R.S. § 41-1461 et seq.; discrimination in furnishing public accommodations, A.R.S. § 41-1441 et seq.
Sec. 18-5. Filing of charge; procedures; powers and enforcement; Department authority; investigation; findings.
1. Any person claiming to be aggrieved by an alleged violation of this article shall file a complaint with the Equal Opportunity Department within one hundred eighty days after the occurrence of the alleged unlawful discriminatory practice. A complaint is deemed filed upon receipt by the Equal Opportunity Department from or on behalf of a person claiming to be aggrieved or, if filed by a member of the Equal Opportunity Department, when executed by such member upon oath or affirmation. A complaint shall be filed upon oath or affirmation and shall contain such information, including the date, place and circumstances of the alleged unlawful practice, and be in such form as the Equal Opportunity Department requires. During such hours as the office of the Equal Opportunity Department is not open, a person claiming to be aggrieved by violation of this article may report such complaint to the Phoenix Police Department or its members and the Phoenix Police Department shall forward a report of such complaint to the Phoenix Equal Opportunity Department.
2. The Equal Opportunity Department may initiate action under this chapter when it believes a violation has occurred.
3. Whenever a complaint is filed by or on behalf of a person claiming to be aggrieved or by a member of the Equal Opportunity Department, referred to as the complainant, alleging that a person has engaged in a practice unlawful by this article, the Department shall serve a copy of the complaint on such person alleged to have committed the unlawful practice, referred to as the respondent, within ten days and shall make an investigation of the complaint and/or attempt resolution of the complaint through the process of persuasion, conciliation or mediation. The Equal Opportunity Department shall report the results of its investigation and its findings no later than one hundred fifty days after the complaint is filed with the Equal Opportunity Department.
4. If the Equal Opportunity Department determines that reasonable cause does not exist to believe that a violation of this article has occurred, the Department shall notify the parties of its decision by a copy of the determination and shall enter an order indicating the absence of reasonable cause and dismissing the complaint. The complainant shall thereafter have the right to request that the City Attorney file a criminal complaint.
5. If the Equal Opportunity Department determines that reasonable cause exists to believe that a discriminatory practice has occurred, it shall enter an order containing its findings of fact and shall endeavor to eliminate the alleged unlawful practice by informal methods of conference, conciliation and persuasion. Any party to such informal proceeding may be represented by counsel.
6. At any time, during the course of the investigation, the Department may engage in efforts to resolve the charge through persuasion, mediation or conciliation in accordance with procedures to be established by the Department. If the Department determines after preliminary investigation not to proceed or if the matter is resolved by mediation or conciliation, an order will be entered dismissing the charge.
7. If a person fails to permit access to or the examination of witnesses or the access to or duplication of records or evidence relating to a violation of this chapter, the Department may issue a subpoena requiring compliance.
8. All conciliation agreements shall provide that the complainant waives, releases and covenants not to sue the respondent or claim against the respondent in any forum with respect to the matters which were alleged as filed with the Department, subject to performance by the respondent of the promises and representations contained in the conciliation agreement. The complainant or the respondent may prepare a conciliation agreement which the Department shall submit to the other party and which, if accepted by the other party, may be accepted by the Department.
9. The Department shall have the authority to defer any complaint filed under this article to any enforcement body having appropriate jurisdiction.
(Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
Sec. 18-6. Refusal to cooperate; failure to conciliate.
1. If within thirty days after the Department has made a determination that reasonable cause exists to believe that a violation of this article has occurred, the Department has not accepted a conciliation agreement to which the charging party and the respondent are parties, the Department may refer the case to the City Attorney for criminal prosecution.
(Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
Sec. 18-7. Penalties.
A. Upon conviction of each violation of any provisions of this article not otherwise provided for, the person so convicted shall be guilty of a Class 1 misdemeanor.
B. It is the intent of this article that the remedies described herein shall constitute the sole and exclusive remedies for violations under this article and no additional cause of legal action is deemed created hereby.
(Ord. No. G-1900, § 1; Ord. No. G-1937, § 2; Ord. No. G-3270, § 6; Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
Sec. 18-8. Conciliation agreement violations.
If the Equal Opportunity Department and a person accused of a violation of this chapter shall reach agreement and execute a conciliation agreement, and such person shall then violate any terms and conditions of said conciliation agreement, it shall be as if such agreement had never been executed. In such event, the Equal Opportunity Department may issue a finding based on the evidence received and refer the case to the Phoenix City Attorney. The Phoenix City Attorney may file criminal charges as are proper under the City Code, and further may take such other civil or criminal action as may be permitted under the Arizona Revised Statutes.
(Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
Sec. 18-9. Construction of ordinance.
The provisions of this ordinance shall be construed for the accomplishment of the purposes hereof. Nothing herein shall be construed to limit civil rights granted or afforded by the laws of the United States government or of the State of Arizona.
(Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
Sec. 18-9.01. Effect of State and federal laws.
Nothing in this ordinance shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of the United States or the State of Arizona. Any remedies provided by this ordinance shall be cumulative with any other remedies provided by the State or federal law.
Nothing in this ordinance shall be deemed to prohibit any act which is required or to permit any act which is prohibited by the laws of the United States or the State of Arizona.
(Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
Sec. 18-9.02. Severability.
If any provision or section of this chapter shall be held to be invalid by a court of competent jurisdiction, then such provision or section shall be considered separately and apart from the remaining provisions or sections, which shall remain in full force and effect.
(Ord. No. G-3557, § 1; Ord. No. G-3558, § 1)
ARTICLE II.
SEXUAL ORIENTATION NONDISCRIMINATIONSec. 18-10.01. City employment.
The City of Phoenix shall not refuse to hire any person or to bar or discharge from employment such person, or to discriminate against such person in compensation, conditions or privileges of employment, on the basis of sexual orientation.
(Ord. No. G-3485, § 1)
Cross references: Employer-employee relations, § 2-209 et seq.
Sec. 18-10.02. City services.
The City of Phoenix shall not deny any City service to any person on the basis of such person's sexual orientation.
(Ord. No. G-3485, § 1)
Sec. 18-10.03. Enforcement.
The City Manager shall adopt appropriate administrative regulations to enforce this article.
(Ord. No. G-3485, § 1)
ARTICLE III.
FAIR HOUSING*------------
State law references: Fair housing, A.R.S. § 41-1491 et seq.; local fair housing ordinances, A.R.S. §§ 9-499.01, 9-500.09.
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Sec. 18-11. Declaration of policy.
It is the intent of the City of Phoenix to undertake vigorous steps to provide equal opportunity in housing; resolve housing discrimination disputes at the local level in a timely, cost efficient and effective manner, extend housing discrimination protection to the handicapped and families with children; exempt housing for the elderly from the provisions prohibiting discrimination against families with children provided that owners, managers and communities meet stated requirements; obtain substantial equivalency with the federal government's housing and discrimination enforcement efforts and enter into intergovernmental agreements with the State of Arizona Attorney General.
(Ord. No. G-3451, § 1)
Sec. 18-11.01. Definitions.
In this article, unless the context otherwise requires:
1. Aggrieved person includes any person who either:
(a) Claims to have been injured by a discriminatory housing practice.
(b) Believes that he will be injured by a discriminatory housing practice that is about to occur.
2. Attorney General means the State of Arizona Attorney General.
3. Complainant means a person, including the City of Phoenix who files a complaint under section 18-11.24.
4. Conciliation means the attempted resolution of issues raised by a complaint or by the investigation of the complaint through informal negotiations involving the aggrieved person, the respondent and the City of Phoenix.
5. Conciliation agreement means a written agreement setting forth the resolution of the issues in conciliation.
6. Director means the Director of the City of Phoenix Equal Opportunity Department.
7. Discriminatory housing practice means an act prohibited by sections 18-11.16 through 18-11.23.
8. Dwelling means either:
(a) Any building, structure or part of a building or structure that is occupied as, or designed or intended for occupancy as, a residency by one or more families.
(b) Any vacant land that is offered for sale or lease for the construction or location of a building, structure or part of a building or structure described by subdivision (a) of this paragraph.
9. Family includes a single individual.
10. Handicap means a mental or physical impairment that substantially limits at least one major life activity, a record of such an impairment or being regarded as having such an impairment. Handicap does not include current illegal use of or addiction to any drug or illegal or federally controlled substance. Handicap shall be defined as the term is defined by the Americans with Disabilities Act of 1990 (P.L. 101-336).
11. Person means one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, unincorporated organizations, trustees, receivers, fiduciaries, banks, credit unions and financial institutions.
12. Respondent means either:
(a) The person accused of a violation of this article in a complaint of a discriminatory housing practice.
(b) Any person identified as an additional or substitute respondent under section 18-11.27 or an agent of an additional or substitute respondent.
13. To rent includes to lease, to sublease, to let or to otherwise grant for a consideration the right to occupy premises not owned by the occupant.
(Ord. No. G-3451, § 1)
Cross references: Definitions and rules of construction generally, § 1-2.
State law references: Similar provisions, A.R.S. § 41-1491.
Sec. 18-11.02. Discrimination due to familial status.
In this article, a discriminatory act is committed because of familial status if the act is committed because the person who is the subject of discrimination is:
1. Pregnant.
2. Domiciled with an individual younger than eighteen years of age in regard to whom the person either:
(a) Is the parent or legal custodian.
(b) Has the written permission of the parent or legal custodian for domicile with that person.
3. In the process of obtaining legal custody of an individual younger than eighteen years of age.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.01.
Sec. 18-11.03. Exempt sales and rentals.
A. Except as provided in subsection B of this section, sections 18-11.16 through 18-11.23 do not apply to:
(1) The sale or rental of a single-family house sold or rented by an owner if:
(a) The owner does not:
(i) Own more than three single-family houses at any one time.
(ii) Own any interest in, nor is there owned or reserved on his behalf, under any express or voluntary agreement, title to or any right to any part of the proceeds from the sale or rental of more than three single-family houses at any one time.
(b) The house was sold or rented without either:
(i) The use of the sales or rental facilities or services of a real estate broker, agent or salesman licensed pursuant to A.R.S. § 32-2101 et seq. or the use of an employee or agent of a licensed broker, agent or salesman or the facilities or services of the owner of a dwelling designed or intended for occupancy by five or more families.
(ii) The publication, posting or mailing of a notice, statement or advertisement prohibited by section 18-11.17.
(2) The sale or rental of rooms or units in a dwelling containing living quarters occupied or intended to be occupied by no more than four families living independently of each other if the owner maintains and occupies one of the living quarters as the owner's residence.
B. The exemption in subsection A, paragraph 1 of this section applies to only one sale or rental in a twenty-four-month period if the owner was not the most recent resident of the house at the time of the sale or rental.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.02.
Sec. 18-11.04. Religious organization and private club exemption.
A. This article does not prohibit a religious organization, association or society or a nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society from:
1. Limiting the sale, rental or occupancy of dwellings that it owns or operates for other than a commercial purpose to persons of the same religion.
2. Giving preference to persons of the same religion, unless membership in the religion is restricted because of race, color or national origin.
B. This article does not prohibit a private club that is not open to the public and that, as an incident to its primary purpose, provides lodging that it owns or operates for other than a commercial purpose from limiting the rental or occupancy of that lodging to its members or from giving preference to its members.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.03.
Sec. 18-11.05. Housing for older persons exempted; definition; rules.
A. The provisions of this article relating to familial status do not apply to housing for older persons.
B. In this section, "housing for older persons" means housing that:
1. Is specifically designated by the U.S. Department of Housing and Urban Development as housing for older persons; or
2. Is intended for, and solely occupied by, persons sixty-two years of age or older; or
3. Is intended for and operated for occupancy by at least one person fifty-five years of age or older per unit.
C. The Director may adopt rules setting forth criteria for housing older persons. The rules adopted for subsection B, paragraph 3 shall require the following factors:
1. That at least eighty percent of the units are occupied by at least one person fifty-five years of age or older per unit.
2. The publication of, and adherence to, policies and procedures that demonstrate an intent by the owner or manager to provide housing for persons fifty-five years of age or older. Rules adopted establishing compliance with this paragraph shall be consistent with federal fair housing regulations.
D. A person shall not be held personally liable for monetary damages under chapter 18, article III, if the person relied in good faith that the housing was exempt from this article because it was housing for older persons as defined under subsection B, paragraph 3 of this section. For the purposes of this subsection, a person may only demonstrate good faith reliance on the exemption from the provisions of this article if both:
1. The person has no actual knowledge that the facility or community does not, or will not qualify as housing for older persons as defined under subsection b, paragraph 3 of this section.
2. The facility or community has formally stated in writing that the facility or community is housing for older persons as defined under subsection b, paragraph 3 of this section.
(Ord. No. G-3451, § 1; Ord. No. G-4088, passed 4-22-1998, eff. 5-22-1998)
State law references: Similar provisions, A.R.S. § 41-1491.04.
Sec. 18-11.06. Appraisal exemption.
This article does not prohibit a person engaged in the business of furnishing appraisals of real property from taking into consideration factors other than race, color, religion, sex, handicap, familial status or national origin.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.05.
Sec. 18-11.07. Effect on other law.
A. This article does not affect a reasonable local or State restriction on the maximum number of occupants permitted to occupy a dwelling or a restriction relating to health or safety standards.
B. This article does not affect a requirement of nondiscrimination in any other State or federal law.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.06.
Sec. 18-11.08. Administration by Director.
The Director shall administer this article in consultation with the City Attorney's office.
(Ord. No. G-3451, § 1; Ord. No. G-3506, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.07.
Sec. 18-11.09. Rules.
The Director may adopt interpretive and procedural rules necessary to implement this article.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.08.
Sec. 18-11.10. Complaints.
The Director shall receive, investigate, seek to conciliate and act on complaints alleging violations of this article.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.09.
Sec. 18-11.11. Reports; studies.
A. The Director shall publish annually a written report which shall contain, for the preceding fiscal year, the following information:
1. The number of complaints initiated by the Director.
2. The number of complaints filed with the Directory by aggrieved persons.
3. The number of complaints dismissed by the Director.
4. The number of complaints that resulted in conciliation agreements.
5. The number of complaints for which the Director and the City Attorney found reasonable cause that a discriminatory housing practice occurred or was about to occur.
6. The number of civil actions filed by the City Attorney pursuant to section 18-11.36.
B. The report shall include a description of the relief awarded in civil actions and, without attribution, benefits to complainants agreed to in conciliation agreements. The report shall also include the number of instances in the preceding fiscal year, and the reasons therefor, but without attribution to parties, the number of investigations that were not completed within the time periods provided by section 18-11.26, subsection B or a determination made pursuant to section 18-11.31, subsection B.
C. The Director may make studies relating to the nature and extent of discriminatory housing practices in the City of Phoenix.
(Ord. No. G-3451, § 1; Ord. No. G-3506, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.10.
Sec. 18-11.12. Cooperation with other entities.
The City of Phoenix shall cooperate with federal and State fair housing agencies and, as appropriate, may provide technical and other assistance to federal, State, local and other public or private entities that are formulating or operating programs to prevent or eliminate discriminatory housing practices.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.11.
Sec. 18-11.13. Subpoenas; discovery.
The Director may issue subpoenas and compel the production of documents and giving of testimony, as provided by section 18-11.14.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.12.
Sec. 18-11.14. Right to examine and copy evidence; summoning witnesses and documents and taking testimony; right to counsel, court aid; process; service and return; fees of witnesses.
A. In connection with the investigation of a charge filed under this article, the Director, or a duly authorized employee, shall at all reasonable times have access to, for the purpose of examination, and have the right to copy any evidence of any person being investigated, provided such evidence relates to unlawful practices covered by this article and is relevant to the charge under investigation.
B. For the purpose of all hearings and investigations conducted by the City of Phoenix:
1. The Director, on his/her own initiative, or upon application of any party to the proceeding, may issue subpoenas compelling the attendance and testimony of witnesses or requiring the production for examination or copying of documents provided such evidence relates to unlawful practices as covered by this article and is relevant to the charge which is the subject matter of the hearing or investigation. Within five days after the service of a subpoena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Director to revoke, limit or modify the subpoena. The Director shall revoke, limit or modify such subpoena if in his/her opinion the evidence required does not relate to unlawful practices covered by this article, is not relevant to the charge which is the subject matter of the hearing or investigation, does not describe with sufficient particularity the evidence whose production is required, or is unduly burdensome or oppressive. The Director, or his/her duly authorized employee, may administer oaths or affirmations, examine witnesses and receive such evidence.
2. Any person appearing before the Director, or his/her duly authorized employee, shall have the right to be represented by counsel.
3. The Superior Court, upon application by the City Attorney or by the person subpoenaed, shall have jurisdiction to issue an order (a) requiring such person to appear before the Director, or his/her duly authorized employee, to produce evidence relating to the matter under investigation if so ordered, or (b) revoking, limiting or modifying the subpoena or conditioning issuance of the subpoena upon payment of costs or expenses incurred to comply with the subpoena if in the court's opinion the evidence required does not relate to unlawful practices covered by this article, is not relevant to the charge which is the subject matter of the hearing or investigation, does not describe with sufficient particularity the evidence whose production is required or is unduly burdensome or oppressive. Any failure to obey such order of the court may be punished by such court as a contempt.
4. Charges, orders and other process and papers of the Director, or his/her duly authorized employee, may be served either personally or by registered mail. The verified return by the individual so serving the same, setting forth the manner of such service, shall be proof of service. The return post office receipt, when registered and mailed as provided in this paragraph shall be proof of service. Witnesses subpoenaed shall be paid the same fees and mileage that are paid witnesses in the Superior Court and witnesses whose depositions are taken and the persons taking the same shall be entitled to the same fees as are paid for like service in the Superior Court.
(Ord. No. G-3451, § 1)
Sec. 18-11.15. Cooperation with other agencies.
The City of Phoenix may apply for recognition by the United States Department of Housing and Urban Development as having adopted an ordinance providing fair housing rights and remedies that are substantially equivalent to those granted under federal law and enter into an intergovernmental agreement with the Attorney General.
(Ord. No. G-3451, § 1)
Sec. 18-11.16. Discrimination in sale or rental.
A. A person may not refuse to sell or rent after a bona fide offer has been made or refuse to negotiate for the sale of or otherwise make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status or national origin.
B. A person may not discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in providing services or facilities in connection with the sale or rental, because of race, color, religion, sex, familial status or national origin.
C. This section does not prohibit discrimination against a person because the person has been convicted under federal law or the law of any state of the illegal manufacture or distribution of a controlled substance.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.14.
Sec. 18-11.17. Publication of sales or rentals.
A person may not make, print or publish or cause to be made, printed or published any notice, statement or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin or an intention
to make such a preference, limitation or discrimination.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.15.
Sec. 18-11.18. Inspection of dwelling.
A person may not represent to any person because of race, color, religion, sex, handicap, familial status or national origin that a dwelling is not available for inspection for sale or rental if the dwelling is available for inspection.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.16.
Sec. 18-11.19. Entry into neighborhood.
A person, for profit, may not induce or attempt to induce a person to sell or rent a dwelling by representations regarding the entry or prospective entry into a neighborhood of a person of a particular race, color, religion, sex, handicap, familial status or national origin.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.17.
Sec. 18-11.20. Prohibition of intimidation.
A person may not coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this section and sections 18-11.16, 18-11.17, 18-11.18, 18-11.19, 18-11.21, 18-11.22 and 18-11.23.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.18.
Sec. 18-11.21. Discrimination due to handicap; definition.
A. A person may not discriminate in the sale or rental or otherwise make unavailable or deny a dwelling to any buyer or renter because of a handicap of:
1. That buyer or renter.
2. A person residing in or intending to reside in that dwelling after it is sold, rented or made available.
3. A person associated with that buyer or renter.
B. A person may not discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling or in the provision of services or facilities in connection with the dwelling because of a handicap of:
1. That person.
2. A person residing in or intending to reside in that dwelling after it is so sold, rented or made available.
3. A person associated with that person.
C. Compliance with the appropriate requirements of the fair housing accessibility guidelines established by the United States Department of Housing and Urban Development satisfies the requirements of subsection E, paragraph 3, subdivision (c).
D. Nothing in this section requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.
E. For purposes of this section, "discrimination" includes:
1. A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by the person if the modifications may be necessary to afford the person full enjoyment of the premises, provided that, in the case of a renter, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing, to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.
2. A refusal to make reasonable accommodations in rules, policies, practices or services if the accommodations may be necessary to afford the person equal opportunity to use and enjoy a dwelling.
3. In connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is thirty months after the date of enactment of the federal Fair Housing Amendments Act of 1988 (P.L. 100-430), a failure to design and construct those dwellings in a manner that includes all of the following:
(a) The public use and common use portions of the dwellings are readily accessible to and usable by handicapped persons.
(b) All the doors designed to allow passage into and within all premises within the dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs.
(c) All premises within the dwellings contain the following features of adaptive design:
(i) An accessible route into and through the dwelling.
(ii) Light switches, electrical outlets, thermostats and other environmental controls in accessible locations.
(iii) Reinforcements in bathroom walls to allow later installation of grab bars.
(iv) Usable kitchens and bathrooms so that an individual in a wheelchair can maneuver about the space.
F. As used in this section, "covered multifamily dwellings" means buildings consisting of four or more units if the buildings have one or more elevators and ground floor units in other buildings consisting of four or more units.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.19.
Sec. 18-11.22. Residential real estate related transaction; definition.
A. A person whose business includes engaging in residential real estate related transactions may not discriminate against a person in making a real estate related transaction available or in the terms or conditions of a real estate related transaction because of race, color, religion, sex, handicap, familial status or national origin.
B. In this section, "residential real estate related transaction" means:
1. Making or purchasing loans or providing other financial assistance either:
(a) To purchase, construct, improve, repair or maintain a dwelling.
(b) To secure residential real estate.
2. Selling, brokering or appraising residential real property.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.20.
Sec. 18-11.23. Brokerage services.
A person may not deny any person access to, or membership or participation in, a multiple listing service, real estate brokers' organization or other service, organization or facility relating to the business of selling or renting dwellings or may not discriminate against a person in the terms or conditions of access, membership or participation in such an organization, service or facility because of race, color, religion, sex, handicap, familial status or national origin.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.21.
Sec. 18-11.24. Complaints.
A. The Director shall investigate alleged discriminatory housing practices. The Director, on his/her own initiative, may file such a complaint.
B. A complaint shall be in writing, under oath and in the form prescribed by the Director.
C. An aggrieved person may file, not later than one year after an alleged discriminatory housing practice has occurred or terminated, whichever is later, a complaint with the Director alleging the discriminatory housing practice.
D. Not later than one year after an alleged discriminatory housing practice has occurred or terminated, whichever is later, the Director may file his own complaint.
E. A complaint may be amended at any time.
F. On the filing of a complaint the Director shall:
1. Give the aggrieved person notice that the complaint has been received.
2. Advise the aggrieved person of the time limits and choice of forums under this article.
3. Not later than twenty days after the filing of the complaint or the identification of an additional respondent under section 18-11.27 serve on each respondent:
(a) A notice identifying the alleged discriminatory housing practice and advising the respondent of the procedural rights and obligations of a respondent under this article.
(b) A copy of the original complaint.
G. Notices and other documents required to be served under this article may be served as provided by section 18-11.14, subsection B, paragraph 4.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.22.
Sec. 18-11.25. Answer to complaint.
A. Not later than ten days after receipt of the notice and copy under section 18-11.24, subsection F, paragraph 3, a respondent may file an answer to the complaint.
B. The answer shall be in writing, under oath and in the form prescribed by the Director.
C. An answer may be amended at any time.
D. An answer does not inhibit the investigation of a complaint.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.23.
Sec. 18-11.26. Investigation.
A. If the federal and/or State government has referred a complaint to the Director or has deferred jurisdiction over the subject matter of the complaint to the Director, and if the Director has accepted the referral or deferral, the Director shall promptly investigate the allegations set forth in the complaint.
B. The Director shall investigate all complaints and, except as provided by subsection C, shall complete an investigation not later than one hundred days after the date the complaint is filed, or if it is unable to complete the investigation within this period, shall dispose of all proceedings related to the investigation not later than one year after the complaint is filed.
C. If the Director is unable to complete an investigation within the time periods prescribed by subsection B, the Director shall notify the complainant and the respondent in writing of the reasons for the delay.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.24.
Sec. 18-11.27. Additional or substitute respondent.
A. The Director may join a person not named in the complaint as an additional or substitute respondent if in the course of the investigation the Director determines that the person should be accused of a discriminatory housing practice.
B. In addition to the information required in the notice under section 18-11.24, subsection F, paragraph 3, the Director shall include in a notice to a respondent joined under this section an explanation of the basis for the determination that the person is properly joined as a respondent.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.25.
Sec. 18-11.28. Conciliation.
A. The Director shall engage, to the extent feasible, in conciliation, including, if appropriate, mediation, with respect to the complaint.
B. A conciliation agreement is an agreement between a respondent and the complainant and is subject to approval by the Director.
C. A conciliation agreement may provide for binding arbitration or another method of dispute resolution. Dispute resolution that results from a conciliation agreement may authorize appropriate relief, including monetary relief.
D. A conciliation agreement shall not be made public unless all parties agree to the disclosure or the City of Phoenix determines that disclosure is necessary to further the purposes of this article.
E. Nothing said or done in the course of conciliation may be made public or used as evidence in a subsequent proceeding under this article without the written consent of the persons concerned.
F. Materials in the investigative file may be disclosed to the parties to the extent reasonably necessary to further the investigation or conciliation discussions. Materials in the investigative file may be disclosed to the complainant for the purpose of deciding whether to file a complaint in court and may be disclosed to the respondent for the purpose of formulating its answer. After a court action has been filed, information derived from the investigation and the final investigation report relating to the investigation shall be subject to discovery.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.26.
Sec. 18-11.29. Temporary or preliminary relief.
If the Director and the City Attorney conclude at any time after the filing of a complaint that prompt judicial action is necessary to carry out the purposes of this article, the City Attorney shall file a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint.
(Ord. No. G-3451, § 1; Ord. No. G-3506, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.27.
Sec. 18-11.30. Investigative reports.
A. The Director shall prepare a final investigative report showing:
1. The names and dates of contacts with witnesses.
2. A summary of correspondence and other contacts with the aggrieved person and the respondent showing the dates of the correspondence and contacts.
3. A summary description of other pertinent records.
4. A summary of witness statements.
5. Answers to interrogatories.
B. A final report under this section may be amended if additional evidence is discovered.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.28.
Sec. 18-11.31. Reasonable cause determination.
A. The Director shall consult with the City Attorney regarding any case in which there is evidence that a discriminatory housing practice has occurred or is about to occur. The Director and the City Attorney shall determine based on the facts whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur.
B. The Director and the City Attorney shall make the determination under subsection A of this section not later than one hundred days after the date a complaint is filed unless either:
1. It is impracticable to make the determination.
2. The Director has approved a conciliation agreement relating to the complaint.
C. If it is impracticable to make the determination within the time period provided by subsection B of this section, the Director shall notify the complainant and respondent in writing of the reasons for the delay.
D. If the Director and the City Attorney determine that reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, the Director shall attempt for a period of not more than thirty days to effectuate a conciliation agreement. If no conciliation agreement has been reached after thirty days, the Director shall refer the case to the City Attorney. The City Attorney shall file a civil action in Superior Court, as provided in section 18-11.36.
(Ord. No. G-3451, § 1; Ord. No. G-3506, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.29.
Sec. 18-11.32. Dismissal of complaint.
If the Director determines that no reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, the Director shall promptly dismiss the complaint and give written notice of the dismissal to the complainant and respondent.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.30.
Sec. 18-11.33. Civil action.
A. An aggrieved person may file a civil action in Superior Court not later than two years after the occurrence of the termination of an alleged discriminatory housing practice or the breach of a conciliation agreement entered into under this article, whichever occurs last, to obtain appropriate relief with respect to the discriminatory housing practice or breach.
B. The two-year period does not include any time elapsed between the filing of any court procedure to enforce an administrative subpoena and is not jurisdictional but is a statute of limitations subject to principles of estoppel, tolling and waiver.
C. An aggrieved person may file an action under this section whether or not a complaint has been filed under section 18-11.24 and without regard to the status of any complaint filed under section 18-11.24. The filing of an action under this section does not affect the Director's power and duty to investigate and make determinations based on the aggrieved person's administrative complaint.
D. If the Director has obtained a conciliation agreement with the consent of an aggrieved person, the aggrieved person may not file an action under this section with respect to the alleged discriminatory housing practice that forms the basis for the complaint except to enforce the terms of the agreement.
E. An aggrieved person may intervene in a civil action filed by the City Attorney and based on that person's administrative complaint.
F. Any party aggrieved by any final order of the Director pursuant to the enforcement of this article shall have the right to petition the Superior Court for any such temporary relief, restraining order, or other order as the court determines is just and proper, or to affirm, modify, or set aside, in whole or in part, the order for further proceedings; or to enforce the order to the extent that the order is affirmed or modified.
G. The rights granted by 42 United States Code sections 3603, 3604, 3605 and 3606 may be enforced in any civil action brought pursuant to this section.
(Ord. No. G-3451, § 1; Ord. No. G-3609, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.31.
Sec. 18-11.34. Court-appointed attorney.
On application by a person alleging a discriminatory housing practice or by a person against whom a discriminatory housing practice is alleged, the Superior Court may appoint an attorney for the person.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.32.
Sec. 18-11.35. Relief granted.
In an action under section 18-11.33, if the Superior Court finds that a discriminatory housing practice has occurred or is about to occur, the court may award to the plaintiff:
1. Actual and punitive damages.
2. Reasonable attorney fees.
3. Court costs.
4. A permanent or temporary injunction, temporary restraining order or other order, including an order enjoining the defendant from engaging in the practice or ordering appropriate affirmative action.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.33.
Sec. 18-11.36. Civil action by City Attorney.
A. If the Director and the City Attorney find cause to believe that a discriminatory housing practice has occurred or is about to occur, and there is no conciliation agreement within thirty days, the City Attorney shall immediately file a civil action on behalf of the complainant in Superior Court against the respondent.
B. If the Director and the City Attorney find reasonable cause to believe that a party has breached a conciliation agreement, the City Attorney shall immediately file a civil action for enforcement of the agreement.
C. In an action under this section, the court may award on behalf of the complainant actual and punitive damages and may issue a permanent or temporary injunction, temporary restraining order or other order, including an order enjoining the defendant from engaging in the practice or ordering affirmative action, and may award court costs to the City Attorney.
D. A person aggrieved by the alleged discriminatory housing practice or damaged by the alleged breach of the conciliation agreement may intervene in a civil action brought under this section.
(Ord. No. G-3451, § 1; Ord. No. G-3506, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.34.
Sec. 18-11.37. Pattern or practice cases.
A. The City Attorney shall file a civil action in Superior Court for appropriate relief if the City Attorney has reasonable cause to believe that either:
1. A person is engaged in a pattern or practice of resistance to the full enjoyment of any right granted by this article.
2. A person has been denied any right granted by this article and that denial raises an issue of general public importance.
B. In an action under this section the court may:
1. Award preventive relief, including a permanent or temporary injunction, restraining order or other order against the person responsible for a violation of this article as necessary to assure the full enjoyment of the rights granted by this article.
2. Award other appropriate relief, including monetary damages, reasonable attorney fees and court costs.
3. To vindicate the public interest, assess a civil penalty against the respondent in an amount that does not exceed:
(a) Fifty thousand dollars for a first violation.
(b) One hundred thousand dollars for a second or subsequent violation.
(Ord. No. G-3451, § 1; Ord. No. G-3506, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.35.
Sec. 18-11.38. Prevailing party; fees and costs.
A court in a civil action brought under this article shall award reasonable attorney fees and costs to a prevailing plaintiff, except to the City Attorney in an action brought under section 18-11.35. The court shall not award attorney fees to a prevailing defendant unless plaintiffs complaint was frivolous, unreasonable or without foundation.
(Ord. No. G-3451, § 1)
State law references: Similar provisions, A.R.S. § 41-1491.36.
Sec. 18-11.39. Effective date.
This article is effective upon the passage of State enabling legislation that will make this ordinance valid.
(Ord. No. G-3451, § 1)
State law references: Fair housing ordinances authorized, A.R.S. §§ 9-499.01, 9-500.09.
ARTICLE IV.
CITY CONSTRUCTION CONTRACTORS' AFFIRMATIVE ACTION REQUIREMENTS*------------
Cross references: Public works contracts, § 2-187 et seq.; prequalification of contractors, ch. 31A.
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Sec. 18-12. Declaration of policy.
It is the policy of the City of Phoenix that any construction contractor ("contractor") who anticipates establishing a business relationship with the City of Phoenix for contracts of ten thousand dollars or more adheres to a policy of equal employment opportunity and demonstrates an affirmative effort to recruit, hire and promote regardless of race, color, religion, gender, or national origin, age or disability; and that all contractors uphold this policy with their subcontractors.
(Ord. No. G-1327, § 1; Ord. No. G-1901, § 1; Ord. No. G-3473, § 1)
Sec. 18-13. Definitions.
(a) Affirmative action plan. A written document that addresses areas of under-representation in the workforce and ensures fair and equal treatment for all employees and applicants for employment. The affirmative action plan shall be aimed at balancing the workforce with the available labor market in the Phoenix metropolitan area.
(b) Age. Age discrimination prohibitions shall apply to individuals who are at least forty years of age.
(c) Business relationship. Any transaction between the City and one or more competent parties which includes, but is not limited to, bids, proposals, written quotes, contractual agreements or call for qualifications.
(d) Construction contract. For the purposes of this article only, any contract for the construction, rehabilitation, alteration, conversion, demolition, extension or repair of buildings, utility systems, pavements, highways or other improvements to real property.
(e) Contractor. Any person or business entity that contracts with the City of Phoenix (prime or general) to provide construction services.
(f) Department. The Equal Opportunity Department of the City.
(g) Disability. A physical impairment that substantially restricts or limits an individual's general ability to secure, retain or advance in employment. Disability does not include any impairment caused by current or recent use of alcohol, drugs, controlled substances or chemical substance abuse.
(h) Disabled individual. For the purpose of this article as applicable to employers or employment practices, a disabled individual is a person with a physical impairment who, with reasonable accommodation, is capable of performing the essential functions of the particular job in question within the normal operation of the employer's business in terms of physical requirements, education, skill and experience.
(i) Reasonable accommodation. An accommodation which does not: (1) unduly disrupt or interfere with the employer's normal operations; (2) threaten the health or safety of the disabled individual or others; (3) contradict the business necessity of the employer; (4) impose undue hardship on the employer based on the size of the employees business, the type of business, financial resources of the employer and the estimated cost and expense of the accommodation.
(j) Subcontractors. A firm, partnership, corporation or combination thereof having a direct contract with the contractor for all or any portion of the advertised work or who furnishes material worked into a special design according to the plans and specifications for such work, but not those who merely furnish equipment or materials required by the plans and specifications.
(Ord. No. G-1327, § 1; Ord. No. G-1901, § 1; Ord. No. G-3473, § 1; Ord. No. G-3634, § 1)
Cross references: Definitions and rules of construction generally, § 1-2.
Sec. 18-14. Exemptions.
The requirements of this article do not apply to contracts for less than ten thousand dollars.
(Ord. No. G-3473, § 1)
Sec. 18-15. Requirements of contractors.
(a) All contractors covered by this article shall submit the following reports to the Department.
1. Employer Information Report.
2. Employer Equal Employment Opportunity Workforce Profile or the most current federal EEO-1 Report.
3. An affirmative action plan.
(b) Contractors with less than fifteen employees shall comply with this article by submitting a certificate on the report form prescribed by the Equal Opportunity Department.
(c) All contractors shall have the reports specified in subsections (a) or (b) completed accurately and on file with the City prior to bid opening, proposal submission, or any other request. The Equal Opportunity Department reserves the right to verify the completeness and accuracy of forms submitted with any procurement package pursuant to this article.
(d) The Equal Opportunity Department will evaluate the required submittal and determine whether the firm is responsive and responsible under this article and, therefore, eligible for City business.
(e) In order to maintain ongoing eligibility for City business, contractors covered by this article shall submit the reports required under section 18-15(a) of this article not later than twelve months subsequent to the contractor's filing date of record as determined by the Equal Opportunity Department. Contractors with less than fifteen employees shall maintain an ongoing eligibility for City business, by submitting the reports required under section 18-15(b) of this article not later than twenty-four months subsequent to the contractor's filing date of record.
(f) Failure of contractors to meet requirements.
1. Failure to comply with subsection (c) shall be cause for considering the bid as nonconforming in a material respect with this article. Such nonconformance shall cause the bid to be nonresponsive or nonresponsible.
2. Failure to maintain eligibility during the full term of a contract with the City shall authorize the cancellation, termination and/or suspension of the contract.
(g) It is required that the following clause appear in all contracts between the City and prime contractors and contracts between the prime and subcontractors:
Any contractor in performing under this contract shall not discriminate against any worker, employee or applicant, or any member of the public, because of race, color, religion, gender, national origin, age or disability nor otherwise commit an unfair employment practice.
The contractor will take affirmative action to ensure that applicants are employed, and employees are dealt with during employment without regard to their race, color, religion, gender or national origin, age or disability. Such action shall include but not be limited to the following: Employment, promotion, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training; including apprenticeship. The contractor further agrees that this clause will be incorporated in all subcontracts with all labor organizations furnishing skilled, unskilled and union labor, or who may perform any such labor or services in connection with this contract.
(h) Contractors are further required to make good faith efforts to carry out the commitment reflected in their affirmative action plan.
(i) Contractors may be required to provide additional documentation to the Department affirming that a nondiscriminatory employment policy is being utilized.
(j) A contractor who encounter[s] difficulty in achieving the results projected in their affirmative action plan may receive technical assistance from the Department upon request.
(k) The Department shall monitor the employment policies and practices of contractors subject to this article as deemed necessary. The Equal Opportunity Department is authorized to conduct on-site compliance reviews of selected firms, which may include an audit of personnel and payroll records, if deemed necessary.
(Ord. No. G-3473, § 1; Ord. No. G-3634, § 1)
Sec. 18-16. Failure of contractor to make good faith effort.
(a) The Department shall evaluate the good faith effort of the contractor to carry out the commitment reflected in their affirmative action plan.
(b) When the evaluation indicates that a contractor has failed to make a good faith effort to comply with their affirmative action plan, the Employment Committee of the Human Relations Commission shall review the facts and may exonerate the subject firm or may recommend to the Human Relations Commission the imposition of sanctions as provided by law. The Human Relations Commission shall submit its recommendations to the City Council. The decision of the City Council shall be final.
(c) A contractor who fails to make a good faith effort and comply with the provisions of this section shall be subject to those sanctions allowed by law including, but not limited to, cancellation, termination, suspension of the contract or exclusion from bidding on City contracts for a period not to exceed two years.
(Ord. No. G-3473, § 1)
Sec. 18-17. Administrative responsibility.
(a) The Equal Opportunity Department shall be responsible for administering the provisions of this article.
(b) Other City departments, in cooperation with the Equal Opportunity Department, are primarily responsible for subsections (c), (d), (e), and (f) of this section.
(c) City departments shall ensure that contractors (primes and generals) who are awarded City construction contracts comply with section 18-15, subsections (a), (b), and (c) of this article.
(d) City departments shall include the requirements of this article as expressed in section 18-15 in all bids, proposals, written quotes, contractual agreements, or call for qualification.
(e) If the contractor has not met the reporting requirements of this article as determined by the Equal Opportunity Department, no further consideration shall be made of any bid or proposal submitted or any other request.
(f) City departments shall ensure that contractors maintain eligibility during the full term of a contract.
(g) The Equal Opportunity Department will evaluate the required submittal and determine whether the firm is responsive and responsible and, therefore, eligible for City business.
(h) Prior to eligibility expiration, the Equal Opportunity Department will notify contractors on file of their need to update eligibility. The failure of the Department to so notify any contractor shall not constitute grounds for failure of any such contractor to file the eligibility reports required under section 18-15; or shall not constitute grounds for estoppel or waiver against the City's enforcement of this article or any provision thereof.
(Ord. No. G-1327, § 1; Ord. No. G-1901, § 1; Ord. No. G-3473, § 1)
Sec. 18-18. Objection to award.
(a) Objection under section 18-15 to the City's intent to award a contract shall be submitted in writing to the City Clerk and the Equal Opportunity Department no later than 5:00 p.m. of the third business day following the day on which the bids were opened by the City. The City shall reject all objections not filed within this time limit.
(b) If such objection under section 18-15 is timely filed, as soon as it is practicable but in no event later than five business days following the filing of the objection, the Equal Opportunity Department Director or designee shall review materials relevant to the objection and issue a decision. The decision of the Equal Opportunity Department shall be final.
(c) If a bidder on a public works contract files an objection on grounds permitted by Phoenix City Code section 2-188 other than an objection based upon an allegation that the requirements of section 18-15 have not been satisfied, and in addition to such grounds, then the hearing on the objection under section 18-15 shall be scheduled for the same time and place as the hearing required under City Code sections 2-189 and 2-190; except that all matters involving the allegation concerning section 18-15 shall be heard and decided by the Equal Opportunity Department only.
(d) In the event that the decision of the Equal Opportunity Department is that the protested bid may be allowed, then the City Engineer shall follow the proceedings set forth under section 2-190.01, Phoenix City Code.
(e) In the event that the decision of the Equal Opportunity Department Director is that the apparent low bidder shall not be awarded the contract by reason of failure to satisfy the requirements of section 18-15; the Equal Opportunity Department Director shall notify the City Engineer, who shall announce a tentative award to the next lowest responsible bidder.
(f) Any bidder wishing to protest the award to the next responsible bidder may make such protest pursuant to the time limits and provisions of Phoenix City Code sections 2-188 and 2-199, or pursuant to this section, and a hearing shall be held in accordance with sections 2-189 and 2-190, or the provisions of this section, if applicable.
(Ord. No. G-3473, § 1; Ord. No. G-3634, § 1)
ARTICLE V.
SUPPLIER'S AND LESSEE'S AFFIRMATIVE ACTION REQUIREMENTSSec. 18-19. Declaration of policy.
It is the policy of the City of Phoenix that Arizona and out-of-State suppliers of goods or services to the City and lessees of real property from the City for a period in excess of six months adhere to a policy of equal employment opportunity and demonstrate an affirmative effort to recruit, hire and promote regardless of race, color, religion, gender, national origin, age or disability.
(Ord. No. G-1372, § 1; Ord. No. G-1461, § 1; Ord. No. G-1616, § 1; Ord. No. G-1997, § 1; Ord. No. G-3472, § 1; Ord. No. G-3633, § 1)
Sec. 18-20. Definitions.
A. Affirmative action plan. A written document that addresses areas of under-representation in the workforce and ensures fair and equal treatment for all employees and applicants for employment. The affirmation action plan shall be aimed at balancing the workforce with the available labor market in the Phoenix metropolitan area.
B. Age. Age discrimination prohibitions shall apply to individuals who are at least forty years of age or older.
C. Business relationship. Any transaction between the City and one or more parties which includes but is not limited to bids, proposals, written quotes, contractual agreements or call for qualifications.
D. Department. The Equal Opportunity Department of the City of Phoenix.
E. Disability. A physical impairment that substantially restricts or limits an individual's general ability to secure, retain or advance in employment. Disability does not include any impairment caused by current or recent use of alcohol, drugs, controlled substances or chemical substance abuse.
F. Disabled individual. For the purpose of this article as applicable to employers or employment practices, a disabled individual is a person with a physical impairment who, with reasonable accommodation, is capable of performing the essential functions of the particular job in question within the normal operation of the employer's business in terms of physical requirements, education, skill and experience.
G. Goods. Equipment, goods, commodities, operating supplies purchased by the City for the daily operation of business.
H. Lessees. For the purposes of this article, firms and/or individuals who lease real property directly from the City for a period, including renewal options, in excess of six months.
I. Reasonable accommodation. An accommodation which does not; (1) unduly disrupt or interfere with the employer's normal operations; (2) threaten the health or safety of the disabled individual or others; (3) contradict the business necessity of the employer; (4) impose undue hardship on the employer based on the size of the employer's business, the type of business, financial resources of the employer and the estimated cost and expense of the accommodation.
J. Services. Professional and nonprofessional services, including, but not limited to, employment services, technical services, computer services, maintenance contracts, architectural services, engineering services, legal services, financial services, medical services, consultant services, etc.
K. Sole source acquisition. An acquisition when there is clear and convincing evidence that there is only one source from which the City can obtain goods or services suitable for the City's intended purpose.
L. Suppliers. Firms, entities or individuals furnishing goods or services directly to the City.
(Ord. No. G-1372, § 1; Ord. No. G-1461, § 1; Ord. No. G-3472, § 1)
Cross references: Definitions and rules of construction generally, § 1-2.
Sec. 18-21. Exemptions.
A. The requirements of this article do not apply to the following business transactions:
1. Petty cash or canteen fund purchases or purchases within the petty cash limits as defined by the City Manager in the City's administrative regulations.
2. Emergency purchases as defined by the City Manager in the City's administrative regulations.
3. Sole source purchases.
B. The requirements of this article shall not apply to the following parties engaged in any business relationship with the City:
1. Governmental agencies of the United States, any state or municipality, any county or school district or other entity created under the laws of the United States, this State or any other state as a public entity.
2. Property owners renting property under the provisions of the United States Housing and Urban Development Section 8 program.
3. Boards and commissions of the City, County or State.
4. Professional organizations or associations, provided that the articles of the association, incorporation, or other governing documents of such organizations or associations do not permit discrimination among their membership on the basis of race, color, religion, gender, national origin, age or disability.
5. Nonprofit corporations formed for the express purpose of assisting the City or any other Arizona municipality in the financing of public projects, purchases or other acquisitions.
C. Questions regarding exemptions will be referred to and decided by the Equal Opportunity Department, with the advice of the Law Department concerning the legal status of entities described in paragraph B above.
(Ord. No. G-1372, § 1; Ord. No. G-1997, § 1; Ord. No. G-3472, § 1; Ord. No. G-3633, § 1)
Sec. 18-22. Requirements of suppliers and lessees.
A. All suppliers and/or lessees covered by this article shall submit the following reports to the Equal Opportunity Department:
1. Employer Information Report.
2. Employer Equal Employment Opportunity Workforce Profile or the most current federal EEO-1 Report.
3. An affirmative action plan.
B. Suppliers and lessees with less than fifteen employees shall comply with this article by submitting a certificate on the report form prescribed by the Equal Opportunity Department.
C. All suppliers and lessees shall have the reports specified in subsections (A) or (B) completed accurately and on file with the City prior to bid opening, proposal submission, request for quotation response, request for qualification response or the date set forth as part of any other request-response process initiated by the City. The Equal Opportunity Department reserves the right to verify the completeness and accuracy of forms submitted with any procurement package pursuant to this article.
D. The Equal Opportunity Department will evaluate the required submittal and determine whether the firm is responsive and responsible under this article and, therefore, eligible for City business.
E. In order to maintain ongoing eligibility for City business; suppliers and lessees covered by this article shall submit the reports required under section 18-22(a) of this article not later than twelve months subsequent to the date of the supplier's or lessee's filing date of record as determined by the Equal Opportunity Department. Suppliers and lessees with less than fifteen employees shall maintain ongoing eligibility for City business by submitting the reports required under section 18-22(b) of this article not later than twenty-four months subsequent to the filing date of record.
F. Failure of suppliers and lessees to meet requirements.
1. Failure to comply with subsection (C) shall be cause for considering the bid or other response as nonconforming in a material respect with this article. Such nonconformance shall cause the bid or other response to be nonresponsive or nonresponsible.
2. Failure to maintain eligibility during the full term of a contract with the City shall authorize the cancellation, termination and or suspension of the contract.
G. It is required that the following clause appear in all contracts and leases between the City and suppliers and lessees covered by this article:
Any supplier/lessee in performing under this contract shall not discriminate against any worker, employee or applicant, or any member of the public, because of race, color, religion, gender, national origin, age or disability nor otherwise commit an unfair employment practice. The supplier and/or lessee will take affirmative action to ensure that applicants are employed, and employees are dealt with during employment without regard to their race, color, religion, gender or national origin, age or disability. Such action shall include but not be limited to the following: Employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training; including apprenticeship. The supplier further agrees that this clause will be incorporated in all subcontracts with all labor organizations furnishing skilled, unskilled and union labor, or who may perform any such labor or services in connection with this contract.
Supplier/lessee further agrees that this clause will be incorporated in all subcontracts, job-consultant agreements or subleases of this agreement entered into by supplier/lessee.
H. Suppliers and lessees are further required to make good faith efforts to carry out the commitment reflected in their affirmative action plan.
I. Suppliers and lessees may be required to provide additional documentation to the Equal Opportunity Department affirming that a nondiscriminatory policy is being utilized.
J. Suppliers or lessees who encounter difficulty achieving the results projected in their affirmative action plan may receive technical assistance from the Equal Opportunity Department upon request.
K. The Equal Opportunity Department shall monitor the employment policies and practices of suppliers and lessees subject to this article as deemed necessary. The Equal Opportunity Department is authorized to conduct on-site compliance reviews of selected firms, which may include an audit of personnel and payroll records, if necessary.
(Ord. No. G-3472, § 1; Ord. No. G-3633, § 1)
Sec. 18-23. Failure of suppliers or lessees to make good faith effort.
A. The Equal Opportunity Department shall evaluate the good faith effort of the suppliers and/or lessees to carry out the commitment reflected in their affirmative action plan.
B. When the evaluation indicates that a supplier or lessee has failed to make a good faith effort to comply with its affirmative action plan, the Employment Committee of the Human Relations Commission shall review the facts and may exonerate the subject firm or may recommend to the Human Relations Commission the imposition of sanctions as provided by law. The Human Relations Commission shall submit its recommendations to the City Council. The decision of the City Council shall be final.
C. A supplier or lessee who fails to make good faith effort and comply with the provisions of this section shall be subject to those sanctions allowed by law, including, but not limited to, cancellation, termination, suspension of the contract or exclusion from bidding on City contracts for a period not to exceed two years.
(Ord. No. G-3472, § 1)
Sec. 18-24. Administrative responsibility.
A. The Equal Opportunity Department shall be responsible for administering the provisions of this article.
B. Other City departments in cooperation with the Equal Opportunity Department are primarily responsible for subsections (C), (D), (E), and (F) of this section.
C. City departments shall ensure that suppliers and lessees who are awarded City business, comply with the requirements of this article.
D. City departments shall include the requirements of this article as expressed in section 18-22 in all invitations for bids, request for proposals, requests for quotations, contractual agreements, or request for qualifications.
E. If the supplier or lessee has not met the reporting requirements of this article as determined by the Equal Opportunity Department, no further consideration shall be made of any bid or proposal submitted or any other request.
F. City departments shall ensure that suppliers and/or lessees maintain eligibility during the full term of a contract.
G. The Equal Opportunity Department will evaluate the required submittal and determine whether the firm is responsive and responsible and, therefore, eligible for City business.
H. Prior to eligibility expiration, the Equal Opportunity Department will notify suppliers and lessees on file of their need to update eligibility. The failure of the Equal Opportunity Department to so notify any supplier or lessee shall not constitute grounds for failure of any such supplier or lessee to file the eligibility reports required under section 18-22; or shall not constitute grounds for estoppel or waiver against the City's enforcement of this article or any provision thereof.
(Ord. No. G-3472, § 1; Ord. No. G-3633, § 1)
Sec. 18-25. Objection to award.
A. Any firm and/or individual who has an objection to the awarding of a contract by the City, pursuant to competitive procurement procedures, which includes the requirements of section 18-22 of this article, which protest is based on an alleged breach of the requirements of section 18-22, may file such protest in writing as set forth in the invitation for bid or request for proposal prior to award by the City Council.
B. The City department requesting approval of the contract shall receive this objection and notify the Equal Opportunity Department within two business days of receipt.
C. If such objection is timely filed, the Equal Opportunity Department Director or designee shall review materials relevant to the objection and issue a decision. The decision of the Equal Opportunity Department shall be final.
(Ord. No. G-3472, § 1)
Secs. 18-26– 18-99. Reserved.
ARTICLE VI.
THE MINORITY-OWNED BUSINESS ENTERPRISE, WOMAN-OWNED BUSINESS ENTERPRISE AND SMALL BUSINESS ENTERPRISE PARTICIPATION PROGRAMS*------------
Editor's note: Ord. No. G-4697, § 1, adopted May 18, 2005, effective July 1, 2005, amended Art. VI in its entirety to read as herein set out. Formerly, said article pertained to similar subject matter and derived from Ord. No. G-3694, § 1; Ord. No. G-4181, § 1, adopted 5-12-1999, eff. 6-11-1999.
Cross references: Public works contracts, § 2-187 et seq.; prequalification of contractors, ch. 31A.
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Sec. 18-100. Adoption of findings.
Based on the factual predicate established by the Update Study dated April 21, 2005, including Section 9.0 "Findings and Conclusions," which is incorporated herein by this reference, the transcripts of and exhibits from the hearings on discrimination in the Phoenix construction market and all other evidence of record, the City Council hereby adopts the following findings:
A. The relevant geographic market for construction services purchased by the City is Maricopa County, Arizona.
B. Construction firms owned by African Americans, Hispanics, Asian Americans, Native Americans and women have low rates of utilization in City construction contracts, given their levels of availability and willingness to participate in the relevant geographic market. The Update Study found that this disparity continues to be persistent, pervasive and statistically significant based on vendor lists and other data on firm availability.
C. Disparities in the participation rate of African American, Hispanic, Asian American, Native American and woman-owned construction firms encompass both prime contract and subcontract activity in the construction industry in the relevant geographic market.
D. The available evidence of substantial disparities in current utilization of minority-owned business and woman-owned business enterprises, continued barriers to the utilization of these businesses in the private sector marketplace, discrimination in business formation and revenue earned from self-employment, and some anecdotal evidence of discrimination indicates that the City has played a passive, and in historical cases, an active role in the discrimination against minority-owned and woman-owned businesses.
E. There is both substantial quantitative and qualitative evidence sufficient to establish a prima facie case of past and ongoing discrimination against African American, Hispanic, Asian American, Native American and woman-owned firms in the construction industry in Maricopa County, the relevant geographic market.
F. The identified forms of marketplace discrimination presently affecting the City construction industry were found to include the advantages possessed by large firms with existing City contracts, construction management at risk, bid shopping, the impediments to opportunity resulting from informal networks, and discrimination in the private sector.
G. Marketplace discrimination in the relevant geographic market has adversely affected minority-owned business enterprise and woman-owned business enterprise construction firms in competing for City construction contracts.
H. The totality of the evidence suggests that the nature of much of the discrimination identified in the Phoenix marketplace is covert. For example, forms of discrimination such as, exclusion from the "good old boy" network in subcontracting, bid shopping, and double standards in performance are likely to take place out of public view and out of the sphere of the victims' knowledge. Accordingly, this covert discrimination is very difficult to observe and measure, and the instances of discrimination that can be documented with some particularity may well reflect only a small fraction of the discrimination level that actually exists. For these reasons, individual remedies on a case-by-case basis are impractical.
I. Class-wide remedies for victims of discrimination in the City construction industry will have greater efficiency given the inherent problems with individual remedies.
J. The City and other jurisdictions have considered and implemented a broad array of race- and gender-neutral remedies for marketplace discrimination in the construction industry, including, but not limited to, bonding assistance, financial assistance, technical assistance, and modification of bidding procedures. Actual experience proves that these race- and gender-neutral remedies do not eliminate the effects of discrimination in the awarding of contracts despite many years of implementation. Likewise, the race- and gender-neutral programs implemented by the City Council since 1986 have not eliminated the effects of discrimination in City construction contracts. A comprehensive combination of race- and gender-neutral remedies with race- and gender-conscious remedies is necessary to fully overcome the effects of marketplace discrimination such as restrictions in market access, impairment of ability to compete, and diminished availability and capacity.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-101. Definitions.
For the purposes of this article, the following terms shall have the following meanings:
A. African American Business Enterprise (AABE) shall mean: a small business which is an independent and continuing enterprise for profit; performing a commercially useful function; owned and controlled by one or more African Americans each of whose personal net worth does not exceed seven hundred fifty thousand dollars.
B. Asian American Business Enterprise (ABE) shall mean: a small business which is an independent and continuing enterprise for profit; performing a commercially useful function; owned and controlled by one or more Asian Americans. Each of whose personal net worth does not exceed seven hundred fifty thousand dollars.
C. Bid shall mean: a quotation, bid, statement of qualifications or proposal by a bidder or contractor to perform or provide labor or materials to the City.
D. Bidder shall mean: any person, partnership, corporation or other business entity that submits a bid or has been selected as a construction manager at risk, design builder or job order contractor.
E. Certified MBE, WBE or SBE shall mean: an MBE, WBE or SBE which meets the requirements of, and has been granted status as a certified business enterprise by the City Manager.
F. City shall mean: the City of Phoenix.
G. City Council shall mean: the City Council of the City of Phoenix.
H. City Manager shall mean: the City Manager of the City of Phoenix, or a person designated by such City Manager to implement any or all portions of this article delegated to the City Manager.
I. Commercially Useful Function shall mean: the performance of real and actual services in the discharge of any contractual endeavor. An MBE, WBE or SBE subcontractor is considered to perform a commercially useful function when it is responsible for execution of a distinct element of the work of a contract and carries out its responsibilities by actually performing, managing and supervising the work involved with its own resources. In determining whether an MBE, WBE or SBE subcontractor is performing a commercially useful function, factors including but not limited to, the following will be considered:
(1) The amount of work subcontracted;
(2) Whether the amount the MBE/WBE/SBE is to be paid is commensurate with the work it will actually perform;
(3) Whether the business will perform work in the trade area where experience and expertise has been demonstrated and for which it is seeking to be or has been certified;
(4) Whether the business actually performs, manages and supervises the work for which it has been contracted to perform;
(5) Whether the business purchases goods and/or services from a non-minority owned business enterprise or a non-woman owned business enterprise and simply resells goods to the City, City contractor, or other person doing business with the City for the purpose of allowing those goods to be counted towards fulfillment of MBE, WBE or SBE utilization goals; and
(6) Standard industry practices.
J. Controlled, for purposes of determining whether a business is a MBE, WBE, or a SBE shall mean: the minority, the woman or small business owner(s) shall possess and exercise the legal authority and power to manage business assets, good will and daily operations in the primary trade area for which certification is sought and apart from administrative functions and they shall actively and continuously exercise this managerial authority and power in determining the policies of and directing the day-to-day operations of, the business. If the owners who are not a minority, woman or small business owner are disproportionately responsible for the operation of the business, then the business is not controlled by a minority, woman or small business owner.
K. Eligible project shall mean: any construction contract undertaken by the City unless otherwise precluded by law, provided the engineer's estimate for construction exceeds fifty thousand dollars. Eligible project does not include any construction contract for which the engineer's estimate is below fifty thousand dollars or which requires a disadvantaged business enterprise goal under federal law.
L. Good faith efforts or good faith participation shall mean: the bidder must show that the bidder took all necessary and reasonable steps to achieve a MBE/WBE/SBE goal or other requirement of this article which steps, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient MBE/WBE/SBE participation, even if such steps were not fully successful. A list of the types of steps that the City may consider as part of the bidder's good faith efforts to obtain MBE/WBE/SBE participation may be found in the administrative rules published by the City Manager and the instructions to bidders for the respective project.
M. Hispanic Business Enterprise (HBE) shall mean: a small business which is an independent and continuing enterprise for profit; performing a commercially useful function; owned and controlled by one or more Hispanics each of whose personal net worth does not exceed seven hundred fifty thousand dollars.
N. Joint Venture shall mean: an association of two or more persons, partnerships, corporations or any combination of these entities, established to carry on a single business activity limited in scope and duration to a specific contract with the City. The degree to which a joint venture may satisfy relevant MBE/WBE/SBE participation goals cannot exceed the proportionate interest held by the MBE, WBE or SBE as a member of the joint venture as demonstrated in the written agreement establishing the joint venture. Further, MBE, WBE or SBE economic interest in the joint venture shall be based on sharing of real economic interest in the joint venture and shall include proportionate control over management, interest in capital acquired by the joint venture, and participation in the joint venture's profit or loss.
O. Local MBE, Local WBE, Local SBE shall mean: an MBE, WBE or SBE whose principal place of business is located in Maricopa County, Arizona.
P. Minority Owned Business Enterprise (MBE) shall mean: a small business which is an independent and continuing enterprise for profit; performing a commercially useful function; owned and controlled by one or more persons each of whose personal net worth does not exceed seven hundred fifty thousand dollars and, for the purposes of this article, includes AABEs, HBEs, ABEs, and NABEs.
Q. Native American Business Enterprise (NABE) shall mean: a small business which is an independent and continuing enterprise for profit; performing a commercially useful function; owned and controlled by one or more Native Americans each of whose personal net worth does not exceed seven hundred fifty thousand dollars.
R. Owned for purposes of determining whether a business is a MBE, WBE or SBE shall mean that: (1) the minority, woman or small business owner(s) as the context requires, shall possess an ownership interest of at least fifty-one percent of the business; (2) this ownership shall be real and continuing, and shall go beyond mere indicia of ownership of the business reflected in ownership documents; and (3) the minority, woman or small business owner(s) shall enjoy the customary incidents of ownership and shall share in the risks and profits commensurate with their ownership interests, as demonstrated by an examination of the substance, rather than the form, of ownership arrangements.
S. Personal Net Worth means: no MBE/WBE/SBE applicant may exceed the personal net worth standard adopted by the City, which standard shall exclude the applicant's equity interest in their primary residence and the value of their ownership in the applicant business for which MBE/WBE/SBE certification is sought; to determine personal net worth, each MBE/WBE/SBE applicant shall submit to the City, and the City Manager will examine, a personal net worth financial statement.
T. Small Business shall mean: a minority, woman or non-minority owned business whose annual gross receipts are less than or equal to the gross receipts size standard adopted by the City for purposes of qualifying for MBE/WBE/SBE certification.
U. Small Business Enterprise (SBE) shall mean: a small business which is an independent and continuing enterprise for profit; performing a commercially useful function; owned and controlled by one or more persons each of whose personal net worth does not exceed seven hundred fifty thousand dollars.
V. Woman Owned Business Enterprise (WBE) shall mean: a small business which is an independent and continuing enterprise for profit; performing a commercially useful function; owned and controlled by one or more Caucasian women each of whose personal net worth does not exceed seven hundred fifty thousand dollars.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-102. Statement of policy.
The City is determined:
A. To reverse its past practice of awarding a disproportionate number of City contracts to non-minority owned business enterprises and non-woman owned business enterprises; and
B. To expand opportunities for MBE/WBE/SBE subcontractors on eligible contracts awarded by the City; and
C. To promote full and equal business opportunity for all persons doing business with the City.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-103. Duties of the City Manager for the implementation of MBE/WBE/ SBE Participation Programs in City construction contracting.
The City Manager shall have the following authority and duties:
A. The administration and enforcement of this article.
B. The establishment of written procedures to effectuate this article.
C. The development of a database of certified MBEs, WBEs and SBEs across all construction categories to be maintained as a public record.
D. The establishment and review of applicable MBE, WBE and, if appropriate, SBE goals on a project-by-project basis.
E. The investigation of alleged violations of this article including a party's failure to act in good faith, and the issuance of written determinations following these investigations stating the reasons for each determination, and which may include the imposition of sanctions.
F. The review of cases where contractors fail to implement previously made MBE, WBE or SBE commitments to determine whether there should be further efforts or alternative approaches, including but not limited to, contact with industry, associations or any pertinent federal agency, for information concerning the availability of qualified MBEs, WBEs or SBEs.
G. The investigation and determination of whether, in the case of a contractor's failure to act in good faith any of the penalties set forth in Section 18-110 (Failure to meet MBE/WBE/SBE participation goals) are appropriate.
H. The certification of contractors, subcontractors or bidders as bona fide MBEs, WBEs or SBEs, in accordance with the standards set forth in Article VIII.
I. The notification to an affected party that the party has the right to appeal a determination of noncompliance with this article.
J. The maintenance of annual statistical databases on availability and utilization of certified MBEs, WBEs, SBEs and non-MBE/WBE/SBEs including:
(1) The level of MBE, WBE or SBE participation achieved in contracts subject to this article; and
(2) The estimated availability of certified MBEs, WBEs SBEs and non-MBE/WBE/SBE subcontractors ready, able and willing to perform work on City projects.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-104. Annual aspirational MBE, WBE and SBE participation goals.
To promote equal opportunity for construction contracting with the City and based upon the findings of the City Council, as established by the Update Study, through anecdotal evidence presented in interviews and at hearings held in the Phoenix construction marketplace, and by all other evidence of record, the City shall establish annual aspirational MBE/WBE/SBE construction contracting participation goals beginning fiscal year 2005/2006.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-105. Project MBE/WBE/SBE participation goals.
To determine MBE/WBE/SBE subcontracting participation goals on eligible projects, the City Manager shall consider: (1) the availability of certified MBEs, WBES and SBEs in various industry classifications who are qualified, willing and able to provide labor and materials on the particular contract; (2) the level of participation by such firms in past contracts awarded by the City; (3) the design plans and contract specifications; (4) the annual MBE/WBE/SBE participation goals, and (5) any other relevant factors.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-106. Contractor's requirements regarding submission of an MBE/WBE/SBE Utilization Plan.
A. MBE/WBE/SBE Utilization Plan. Notwithstanding a bidder's compliance with any other requirement of City ordinances, if MBE/WBE/SBE participation goals have been set for an eligible project, no bidder shall be awarded a contract for the project unless the City Manager has approved the bidder's MBE/WBE/SBE Utilization Plan or granted the bidder a waiver on the project. The bidder's MBE/WBE/SBE Utilization Plan shall demonstrate how the bidder will meet the applicable MBE/WBE/SBE participation goals set for the project and shall be incorporated into the contract.
B. Each bidder shall submit a completed and signed MBE/WBE/SBE plan or fully documented waiver request with the bid submission. The plan shall contain, at a minimum, the names, addresses and contact persons of the MBEs, WBEs or SBEs to be used in the contract, the type of work or service each business will perform, and the dollar value of the MBE/WBE/SBE subcontract. These requirements may be changed by the City Manager from time to time. Contractors may meet the applicable MBE/WBE/SBE project goals through a variety of methods, as follows:
(1) Subcontractor participation. Where a prime contractor utilizes one or more subcontractors to satisfy its MBE/WBE/SBE participation commitment, the prime contractor may claim only expenditures to certified MBE, WBE or SBE subcontractors performing a commercially useful function in the work of the contract and performing work in the trade area where MBE/WBE/SBE certification has been granted.
(2) Work subcontracted to non-MBE/WBE/SBE firms will not be counted towards achieving the MBE/WBE/SBE utilization goal established for the project.
(3) Supplier participation. Where a prime contractor utilizes one or more MBE, WBE or SBE suppliers to satisfy its MBE/WBE/SBE commitment, in whole or in part, the MBE, WBE or SBE supplier participation may be credited towards the applicable MBE/WBE/SBE participation goal as follows:
(a) If MBE, WBE or SBE suppliers manufacture the goods supplied, then one hundred percent of the contract amount is credited towards the applicable MBE/WBE/SBE participation goal.
(b) If the MBE, WBE or SBE suppliers are wholesalers warehousing the goods supplied or are manufacturers' representatives, then one hundred percent of the contract amount is credited towards the applicable MBE/WBE/SBE participation goal; but only twenty-five percent of the applicable MBE, WBE or SBE goal may be attained by non-manufacturing supplier contracts to MBEs, WBEs or SBEs.
(4) Joint ventures and mentor-protégé programs.
(a) The City Manager shall encourage, where economically feasible, establishment of joint ventures and mentor-protégé programs to promote prime contracting opportunities for MBEs, WBEs and SBEs on all eligible projects.
(b) Where a contractor engages in a joint venture to satisfy its MBE/WBE/SBE commitment, the City Manager shall review and approve all joint venture agreements.
On the basis of these agreements, the City Manager shall determine the degree of MBE, WBE or SBE joint venture participation that may be credited towards applicable MBE/WBE/SBE project goals.
(c) The bidder shall permit the City Manager to review all records pertaining to joint venture agreements before and after the contract award, to the extent reasonably necessary to assess compliance with this article.
(d) The City Manager shall also encourage mentor-protégé programs to assist MBEs, WBEs or SBEs on financing, bonding, construction management, and technical matters. The City Manager shall review and approve the following terms of each mentor-protégé agreement:
(i) Type of technical assistance to be provided by mentor;
(ii) Rights and responsibilities of each mentor and protégé for each contracting activity;
(iii) The specific duration of the agreement, which shall not exceed three years;
(iv) The amount of the protégé participation that may be credited toward the applicable MBE/WBE/SBE goal.
C. After the City executes the project contract, the successful bidder may not alter the MBE/WBE/SBE utilization plan as submitted at the time of the bid without prior written consent of the City Manager.
D. Subcontractor goals packet MBE/WBE/SBE Plan.
(1) The City will publish its MBE/WBE/SBE subcontracting goals in the project specifications and the instructions to bidders. All bidders shall submit with their bids a subcontractor goals packet (containing their MBE/WBE/SBE utilization plan for the project, a complete list of MBE, WBE and SBE subcontractors, and the dollar value and participation percentage of each MBE, WBE and SBE proposed subcontract) or a good-faith request for waiver, if the bidder has not met the required MBE/WBE/SBE participation goal.
(2) Each bidder shall certify on the subcontractor goals packet that the bidder has met the established MBE/WBE/SBE project participation goals, or notwithstanding good-faith efforts to meet the goals, the bidder has been unable to do so and therefore is entitled to a waiver. If this certification is not included as part of the bid for any reason, the bid shall not be read. In addition, the bid shall not be read or as applicable, deemed non-responsive unless it includes either the complete subcontractor goals packet (if the bidder has met the established MBE/WBE/SBE project participation goals) or a fully documented waiver request (if, notwithstanding good-faith efforts, the bidder has failed to meet the goals). All bids that include the certification and either the complete subcontractor goals packet or a fully documented waiver request shall be read, unless otherwise deemed nonresponsive.
E. Waiver.
(1) All waiver requests shall indicate whether a complete or partial waiver is sought and shall indicate the scope of any partial-waiver request. In accordance with Section 18-106.C(2) below, the waiver request shall provide evidence of the bidder's efforts to meet the project goals, and the waiver will be resolved in the manner described in Section 18-107.B below.
(2) The bidder's application for waiver of the project goals shall include full documentary evidence of the bidder's good-faith efforts to meet the project goals, and the application shall state why the request for waiver should be granted. The application shall be in writing and shall include a narrative, affidavits and/or exhibits that explain in detail and verify the actions taken by the bidder to meet the goals. The fact that other bidders could meet, or claim to meet, the project goals shall not by itself constitute grounds for denying a waiver request. All requests for waivers shall be evaluated on the basis of the objective criteria set forth below.
The bidder shall provide as part of the waiver request the following evidence of its good-faith efforts, and the request will be evaluated on these items:
(a) Copies of written notification to MBEs, WBEs and SBEs that their interest in the subcontract is solicited;
(b) Evidence of the efforts made to divide the work into small, economically feasible units in order to increase the likelihood of achieving the stated goals;
(c) Evidence of efforts made to negotiate with MBEs, WBEs and SBEs including at a minimum:
(i) The names, addresses and telephone numbers of MBEs, WBEs and SBEs who were contacted;
(ii) A description of the information provided to MBEs, WBEs and SBEs regarding the plans and specifications for portions of the work to be performed;
(iii) A statement of the reasons why additional agreements with MBEs, WBEs and SBEs if needed to meet the stated goals, were not reached;
(d) Evidence of efforts made to help MBEs, WBEs and SBEs contacted who need assistance in obtaining bonds and insurance required by the bidder;
(e) As to each contacted MBE, WBE and SBE the bidder considered unqualified, a written statement of the reasons for the bidder's conclusion;
(f) Written quotes or records of verbal quotes solicited from all MBEs, WBEs or SBEs seeking subcontract work with the bidder.
(3) The City shall waive a project goal, at least in part, if the quotes or proposals received by the bidder requesting a waiver from all MBEs, WBEs and SBEs in one trade exceed the quote or proposal of the lowest non-MBE/WBE/SBE competing for the same work by the lesser of twenty percent or one hundred thousand dollars. The City shall adopt administrative rules, with input from the Program Oversight Committee, to implement the waiver criteria specified in Section 18-106.C above.
F. Program Oversight Committee. The City Manager shall appoint a Program Oversight Committee to monitor implementation of the MBE/WBE/SBE participation program established by this Article VI as amended. The Program Oversight Committee shall review and comment on the City Manager's administrative rules designed to implement this ordinance and periodically review and comment on the City's progress in meeting the objectives of the MBE/WBE/SBE Subcontracting Goals Program. The Program Oversight Committee shall be comprised of six persons. Two members shall be nominated by each of the following organizations or their successors in interest: the City; the Associated General Contractors of America, Arizona Chapter; and established minority/woman construction contractor organizations. Committee members shall serve without compensation.
G. Miscellaneous. The revisions herein to Article VI shall not apply to any contract publicly advertised before the effective date of this ordinance or to any contract executed before the effective date of this ordinance.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-107. Review of bid submission and MBE/WBE/SBE Plan.
A. Bid submission.
(1) The City Manager shall review each subcontractor goals packet submitted with the bid to determine if the bidder included in its submission a completed and signed MBE/WBE/SBE plan that meets the MBE/WBE/SBE goals for the contract. The City Manager shall approve or reject the plan.
(2) The City Manager may declare the bid nonresponsive if the City Manager determines a bidder failed: (a) to provide a completed MBE/WBE/SBE Plan; (b) to identify all MBEs, WBEs and SBEs by name, scope of work and value of work sufficient to meet the applicable MBE, WBE or SBE goals for that project; (c) to achieve the dollar value of creditable participation by certified MBEs, WBEs or SBEs necessary to meet the MBE/WBE/SBE project goals, or (d) to act in good faith; or (e) to meet all requirements for a good-faith waiver of the MBE/WBE/SBE goals all as determined by the City Manager.
(3) The City Manager may declare the bid nonresponsive if the City Manager determines that a bidder furnished false, fraudulent, misleading or materially inaccurate information in the plan, or as part of a bid submission, proposal or statement of qualifications.
(4) If, after consulting with the appropriate City departments, the City Manager determines that the MBE/WBE/SBE plan submitted by a bidder has been altered without prior written consent or is false or fraudulent, the City Manager shall be authorized to reject the bid, or, if the determination is made after an award, the City Manager may declare the contract null and void or may cancel it.
B. Waivers.
(1) If a bidder requests a waiver of project MBE/WBE/SBE goals, the City Manager shall determine whether the bidder has made a good-faith effort to meet the project goals and whether a waiver of the goals should be granted in whole or in part.
(2) In cases where a waiver is requested because MBEs, WBEs or SBEs are unavailable to deliver the specified labor and materials, the City Manager shall determine whether MBEs, WBEs or SBEs are not in fact available to provide the needed labor and materials at competitive prices.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-108. MBE/WBE/SBE participation clause.
Every contract with the City on an eligible project shall include an MBE/WBE/SBE clause. The MBE/WBE/SBE clause shall read as follows:
The contractor agrees to meet the goals of this Agreement by making available opportunities for Minority-Owned Business Enterprises (MBEs), Woman-Owned Business Enterprises (WBEs) and Small Business Enterprises (SBEs), as defined in , Article VI of the Phoenix City Code, for utilization in the work set forth within this Agreement. For this purpose the contractor, at minimum, shall undertake the following:
A. Notify MBEs, WBEs and SBEs that the contractor has subcontracting opportunities available and maintain records of all MBE, WBE, SBE and all non-MBE/WBE/SBE subcontractor responses.
B. Maintain a file of names and addresses of each MBE, WBE, SBE and non-MBE/WBE/SBE subcontractor contacted and action taken with respect to each such contact.
C. Disseminate the contractor's MBE/WBE/SBE participation policy within the contractor's management and externally communicate this policy to all subcontractors and suppliers.
D. Undertake and continue specific and personal recruitment efforts (both written and oral) directed at MBEs, WBEs and SBEs as well as MBE/WBE/SBE contractor trade and assistance organizations.
E. Subdivide the contract into economically feasible segments to facilitate MBE, WBE and SBE participation.
F. Adopt and comply with the MBE/WBE/SBE participation plan submitted with its response to the Invitation for Bids, Request for Qualifications or Request for Proposals, as approved by the City Manager.
G. The contractor further agrees that any breach of the MBE/WBE/SBE provisions of this Agreement shall be material and shall entitle the City to any or all of the following remedies, in addition to all other remedies allowed by law:
(1) In addition to the applicable retention or securities-in-lieu of retention authorized by statute, to withhold up to ten percent more of all future payments on the involved eligible project until it is determined that the contractor is in compliance;
(2) To withhold all future payments on the project until it is determined that the contractor is in compliance;
(3) To reject all future bids for all projects or other procurements with the City of Phoenix until such time that the contractor has cured its breaches and demonstrates that it has adopted and faithfully performed its approved MBE/WBE/SBE Plan and all other provisions contained in the Agreement; or
(4) If any breach of the MBE/WBE/SBE provisions is discovered or has not been cured by substantial completion of the project, to reject all of contractor's future bids for all projects or other procurements with the City of Phoenix for a period of one year from the date of substantial completion of the project.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-109. Maintenance of MBE/WBE/SBE records and reports by contractors.
Contractors awarded contracts on eligible projects incorporating MBE/WBE/SBE requirements must submit monthly updated participation reports, designed by the City Manager, which summarize the number and dollar amounts of subcontract awards made during the contract term and the actual participation of MBE/WBE/SBE firms that occurred during the report period. These reports shall be submitted to the City Manager with the monthly pay request.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-110. Failure to meet MBE/WBE/SBE participation goals.
If the City Manager determines that the contractor has failed to comply with any provision of this article, the City Manager may take any or all of the following actions:
(1) In addition to the applicable retention or securities-in-lieu of retention as authorized by statute, to withhold from the contractor up to ten percent more of all future payments on the involved eligible project until it is determined that the contractor is in compliance;
(2) To withhold from the contractor all future payments on the involved project until it is determined that the contractor is in compliance;
(3) To reject all future bids or offers for all projects or other procurements with the City until such time that the contractor has cured its breaches and demonstrates that it has faithfully performed its approved MBE/WBE/SBE plan and all other provisions of this article; or
(4) If any breach of the MBE/WBE/SBE provisions is discovered or has not been cured by substantial completion of the project, to reject all of the contractor's future bids for all projects or other procurements with the City of Phoenix for a period of one year from the date of substantial completion of the project.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-111. Failure of MBE/WBE/SBE to comply with program requirements.
If the City Manager determines that an MBE, WBE or SBE has: failed to comply with any provision of this article; improperly altered bid documents; or submitted false, fraudulent, misleading or materially inaccurate information; the City Manager may take any or all of the following actions with regard to such MBE/WBE/SBE:
A. With the City Manager's prior written consent, allow the contractor to substitute another MBE/WBE/SBE on the project;
B. Suspend the MBE/WBE/SBE's certification until such time that the MBE/WBE/SBE has cured its breaches and demonstrates that it has faithfully complied with this article;
C. To decertify the MBE/WBE/SBE for a period of one year from the date the City Manager discovers the improper conduct.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-112. Miscellaneous.
A. All resolutions or ordinances and parts of resolutions or ordinances in conflict with Article VI are hereby repealed.
B. This article shall not apply to any of the following:
(1) Any contract publicly advertised prior to the effective date of this article; or
(2) Any contract executed prior to the effective date of this article.
C. Sunset rule. Article VI shall expire on June 30, 2010, unless the City Council, after conducting public hearings, finds that the purposes identified in Section 18-102 of this article have not yet been achieved in which case this article may be extended for up to an additional five-year period.
D. Severability. If any provisions of this article or any application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this article that can be given effect without the invalid provisions or applications, and to this end the provisions of this article are declared to be severable.
(Ord. No. G-4697, § 1, adopted 5-18-2005, eff. 7-1-2005)
Secs. 18-113– 18-199. Reserved.
ARTICLE VII.
THE MINORITY-OWNED BUSINESS ENTERPRISE, WOMAN-OWNED BUSINESS ENTERPRISE AND SMALL BUSINESS ENTERPRISE PROCUREMENT PROGRAM*------------
Editor's note: Ord. No. G-4697, § 2 adopted May 18, 2005, effective July 1, 2005, amended Art. VII in its entirety to read as herein set out. Formerly, said article pertained to similar subject matter and derived from Ord. No. G-3707, § 1; Ord. No. G-4181, § 2, adopted 5-12-1999, eff. 6-11-1999.
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Sec. 18-200. Adoption of findings.
Based on the factual predicate established by the Update Study dated April 21, 2005, including Section 9.0, "Findings and Conclusions," which is incorporated herein by this reference, the transcripts of and exhibits from the hearings on discrimination in the market for the procurement of goods, supplies and general services by the City, and all other evidence of record, the City Council hereby adopts the following findings:
A. The relevant geographic market for goods, supplies and general services purchased by the City is principally Maricopa County, Arizona; Cook County, Illinois; and Los Angeles County, California.
B. Available evidence of substantial disparities in current utilization of minority-owned business and woman-owned business enterprises, continued barriers to the utilization of these businesses in the private market place, discrimination in business formation and revenue earned from self-employment, and some anecdotal evidence of discrimination indicates that the City has played a passive, and in historical cases, an active role in the discrimination against minority-owned and woman-owned businesses that sell goods, supplies and general services to the City.
C. The results of the Update Study dated April 21, 2005 found statistically significant levels of disparity between the availability and utilization of African Americans, Hispanic, Native Americans and Woman-Owned Business Enterprises in contracts for the purchase of goods, and supplies. The Update Study measured availability based on vendor lists and other data.
D. The Update Disparity Study dated April 21, 2005 also found statistically significant levels of disparity between the availability and utilization of African Americans, Hispanic and Woman-Owned Business Enterprises in contracts for general services purchases. The Update Study again measured availability based on vendor lists and other data.
E. There is both substantial quantitative and qualitative evidence sufficient to establish a prima facie case of past and ongoing discrimination against African American, Hispanic, Native American, and Woman-Owned Business Enterprises in the City's purchases of goods, supplies and general services in Maricopa County, Arizona, Cook County, Illinois and Los Angeles County, California, principally the relevant geographic market.
F. The Update Study dated April 21, 2005 also found that although there was strong MBE and WBE participation in the City's Small Business Enterprise Program, the Small Business Enterprise Program itself was not a significant factor in the overall utilization of MBEs, WBEs and SBEs, and accounted for only a small portion of the total dollar value of contracts for goods, supplies and general services awarded by the City.
G. The findings adopted in , Article VI, Section 18-100 of the Phoenix City Code are incorporated into this Article VII.
(Ord. No. G-4697, § 2, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-201. Definitions.
A. This article incorporates all definitions in Article VI of of the Phoenix City Code except those terms that are defined differently in this Section 18-201.
B. Bid shall mean: a quotation, proposal, or other offer by a bidder to perform or provide labor, materials, equipment, supplies or services to the City of Phoenix, for a price.
C. Bidder shall mean: any person, partnership, corporation or other business entity that submits a bid to the City.
D. Eligible contract shall mean: any contract for goods, supplies or general services for use in City operations unless otherwise precluded by law. Eligible contract does not include sole source contracts, petty cash purchases, emergency purchases as defined by the City Manager in the City's administrative regulations, contracts for professional services, contracts for architectural and engineering services or contracts for the following items: City utility payments, phone payments, rent, professional association fees, magazine subscriptions, payments to other governmental entities, and bank transfers. Professional services, which are not affected by this Article VII, refer to infrequent technical or unique services or functions performed by independent contractors whose profession or occupation is the rendering of these services.
E. General service shall mean: the furnishing of labor, time or effort by a vendor which does not involve the delivery of a specific end product other than any requested report or documentation as required by the service agreement. "General service" shall also include but not be limited to the installation of personal property only; and to maintenance and repair functions for all City facilities, equipment, property and improvements, including the replacement of parts and the providing of materials incorporated into City property as a function of the maintenance or repair service.
F. Goods or supplies shall mean: equipment, goods, commodities, or operating supplies purchased by the City for its operations in the ordinary course of business.
G. Invitation for bids (IFB) shall mean: all documents, whether attached or incorporated by reference, utilized for soliciting bids for goods, supplies or general services.
H. Joint venture shall mean: an association of two or more persons, partnerships, corporations or any combination of these entities, established to carry on a single business activity limited in scope and duration. The agreement establishing the joint venture, partnership or other multi-entity relationship shall be in writing. The degree to which a joint venture may receive a bid incentive is set forth in Section 18-204.
I. Procurement shall mean: buying, purchasing, renting, leasing or otherwise acquiring goods, supplies or general services. It also includes all functions that pertain to the obtaining of any good, supply or general service, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration.
J. Request for proposals (RFP) shall mean: all documents, whether attached or incorporated by reference, utilized for soliciting proposals for goods, supplies and general services.
K. Sole source shall mean: a procurement for which clear and convincing evidence exists that there is only one source from which the City can obtain goods, supplies or general services suitable for the City's intended purpose.
L. Vendors shall mean: suppliers, firms, entities, or individuals furnishing goods, supplies or general services directly to the City.
(Ord. No. G-4697, § 2, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-202. Statement of policy.
The City is determined:
A. To reverse its past practice of awarding a disproportionate number of City contracts to non-minority owned business enterprises and non-woman owned business enterprises.
B. To expand opportunities for eligible goods, supplies and general services contracts with MBE/WBE/SBEs awarded by the City; and
C. To promote full and equal business opportunity for all persons doing business with the City.
(Ord. No. G-4697, § 2, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-203. Duties of City Manager to implement MBE, WBE and SBE Procurement Program.
The City Manager shall have the following authority and duties:
A. The administration and enforcement of this article.
B. The establishment of written procedures to effectuate this article.
C. The development of a database of MBEs, WBEs, SBEs, non-MBE/WBE/SBE vendors and non-MBE/WBE/SBE suppliers that provide goods, supplies and general services to be maintained as a public record.
D. The notification to an affected party that it has the right to appeal the determination of noncompliance with this article.
E. The investigation of alleged violations of this article, and the issuance of written determinations following these investigations, stating the reasons for each determination.
F. The coordination of expanded MBE/WBE/SBE procurement efforts.
G. The maintenance of annual statistical databases on availability and utilization of MBEs, WBEs and SBEs including:
(1) The level of MBE, WBE and SBE participation achieved in the contracts subject to this article; and
(2) The estimated availability of MBEs, WBEs, SBEs and non-MBE/WBE/SBE vendors to perform contracts.
H. The assistance and encouragement of City departments in the use of MBEs, WBEs and SBEs for requirements contracts.
I. The requirement of City departments to use good faith efforts to include MBEs, WBEs and SBEs in their contracting practices. In keeping with this objective, contract awarding authorities, including the Purchasing Division, shall use good faith efforts to solicit and obtain bids from MBEs, WBEs and SBEs on all solicitations or document their unavailability,
(Ord. No. G-4697, § 2, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-204. SBE bid incentive.
The City Manager may allocate up to a five percent competitive bid incentive to available SBEs who bid on eligible contracts in the amount of two hundred fifty thousand dollars or less. The City Manager may allocate up to a two and one-half percent competitive bid incentive to available SBEs who bid on eligible contracts in an amount more than two hundred fifty thousand dollars but less than five hundred thousand dollars. If the cost of the bid incentive reaches thirty-five thousand dollars during any fiscal year, the City Manager shall notify the City Council so that the City Council may consider whether or not to continue the incentive during the remainder of that fiscal year.
A. Bid incentive percentage. Unless otherwise indicated in this article, all eligible contracts shall be subject to the bid incentives of this article. In determining the lowest responsive and responsible bid on all eligible contracts, the bid submitted by a certified SBE shall be adjusted by reducing the bid price(s) of such business by up to five percent. This adjustment shall be solely for the purpose of establishing the apparent low bidder. The actual value of the contract awarded shall be the amount of the actual bid submitted by the SBE.
B. Bid incentive for joint ventures. A joint venture shall receive a bid incentive for an eligible contract in accordance with this section if SBE participation equals or exceeds thirty-five percent of the joint venture. The non-SBE partner must be responsible for a clearly defined portion of the work to be performed and share in the joint venture's ownership, control, management responsibilities, risks and profits. The portion of the SBE joint venturer's work shall be set forth in detail separately from the work to be performed by the non-SBE joint venture partner. The SBE joint venturer's portion of the contract must be assigned a commercially reasonable dollar value. The bidder shall permit the City Manager to review all records pertaining to joint venture agreements before and after the contract award, to the extent reasonably necessary to assess compliance with this article.
C. Exemptions from bid incentive requirements on eligible contracts. The applicable bid incentive shall not apply to the following contracts with the City:
(1) Contracts that exceed five hundred thousand dollars in total annual value;
(2) Contracts with nonprofit agencies;
(3) Contracts for the provision of services that are paid for directly by citizens of the City and not from City funds;
(4) Contracts covered by , Article VI of the Phoenix City Code; and
(5) Contracts, if any, reserved for competition exclusively between SBEs under Section 18-205.
D. Miscellaneous. The revisions herein to Article VII shall not apply to any contract publicly advertised or for which quotes have been solicited before the effective date of this ordinance or to any contract executed before the effective date of this ordinance.
(Ord. No. G-4697, § 2, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-205. SBE Reserve Contract Program for goods, supplies and general services.
A. The City Manager shall promptly implement, continue and expand as appropriate an SBE participation program for procurement of goods, supplies and general services in accordance with this Section 18-205.
B. The City Manager may reserve up to ten percent of the solicitation of all goods, supplies and general services procurements for competition exclusively among certified SBEs. For these procurements, there shall be no bid incentive under Section 18-204. Before the City Manager may reserve goods, supplies and general services procurements for competition exclusively among certified SBEs, the City Manager shall consider the availability of certified SBEs who are qualified, willing and able to provide materials or services in connection with the particular procurement.
(Ord. No. G-4697, § 2, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-206. Miscellaneous.
A. All resolutions or ordinances and parts of resolutions or ordinances in conflict with this Article VII are repealed.
B. This article shall not apply to any of the following:
(1) Any invitation for bid or request for proposal publicly advertised before the effective date of this article; or
(2) Any contract executed before the effective date of this article.
C. Sunset rule. Article VII shall expire on June 30, 2010, unless the City Council, after conducting public hearings, finds that the purposes identified in Section 18-202 of this article have not yet been achieved in which case said article may be extended for an additional five years.
D. Severability. If any provisions of this article or any application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this article that can be given effect without the invalid provisions or applications, and to this end the provisions of this article are declared to be severable.
(Ord. No. G-4697, § 2, adopted 5-18-2005, eff. 7-1-2005)
Secs. 18-207– 18-299. Reserved.
ARTICLE VIII.
CERTIFICATION OF MINORITY-OWNED BUSINESS ENTERPRISES, WOMAN-OWNED BUSINESS ENTERPRISES AND SMALL BUSINESS ENTERPRISES*------------
Editor's note: Ord. No. G-4697, § 3, adopted May 18, 2005, effective July 1, 2005, amended Art. VIII in its entirety to read as herein set out. Formerly, said article pertained to similar subject matter and derived from Ord. No. G-3695, § 1; Ord. No. G-4181, § 3, adopted 5-12-1999, eff. 6-11-1999.
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Sec. 18-300. Definitions.
This article incorporates all definitions in Articles VI and VII of of the Phoenix City Code except those terms that are defined differently in this section 18-300.
(Ord. No. G-4697, § 3, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-301. Administrative provisions.
The City Manager shall have the following authority and duties for the certification of minority-owned business enterprises (MBEs), woman-owned business enterprises (WBEs) and small business enterprises (SBEs):
A. The administration and enforcement of this article.
B. The establishment of written procedures to effectuate this article.
C. The certification of contractors, subcontractors, vendors, and suppliers as bona fide MBEs, WBEs or SBEs, in accordance with the standards set forth in this article.
D. The notification to an affected party by certified mail that it has the right to appeal to the City Manager a denial of certification or decertification as an MBE, WBE or SBE, as provided in section 18-304, Appeals. The appeal must be filed within seven working days of the notification of refusal to certify the contractor, subcontractor, vendor, or supplier as an MBE, WBE or SBE or notification of intent to decertify an MBE, WBE or SBE.
E. The notification to the Engineering and Architectural Services Department or Finance Department of any denial of certification as an MBE, WBE or SBE and any appeal of such refusal to certify.
F. The development of a database of certified MBEs, WBEs and SBEs to be maintained as a public record.
G. The maintenance of statistical data on the availability of African American Business Enterprises, Hispanic Business Enterprises, Asian American Business Enterprises, Native American Business Enterprises, WBEs, SBEs, non- MBE/WBE/SBE construction subcon- tractors and non-MBE/WBE/SBE vendors and suppliers.
H. The authority to accept the certifications of another qualified certification entity through intergovernmental agreement.
(Ord. No. G-4697, § 3, adopted 5-18-2005, eff. 7-1-2005)
Sec. 18-302. Minority-Owned Business Enterprise, Woman-Owned Business Enterprise and Small Business Enterprise Certification.
A. Standards. The burden of proof rests on the applicant to establish that the standards and criteria have been met to obtain MBE, WBE or SBE certification. The City Manager shall certify MBEs WBEs and SBEs for the City of Phoenix MBE/WBE/SBE participation programs in Articles VI and VII consistent with the standards set forth in 49 CFR Parts 23 and 26 as established by the U.S. Department of Transportation for the Federal Disadvantaged Business Enterprise Program as follows:
(1) Bona fide minority group memberships shall be established on the basis of the individual's claim that he or she is a minority, as defined in Article VI, and a showing that the applicant is so regarded by that particular minority community.
(2) An eligible MBE, WBE, or SBE under this program shall be an independent and continuing operation for profit, performing a commercially useful function, and which is owned and controlled by one or more eligible minorities, women or small business owners respectively. The ownership and control by a minor, a woman or small business owner shall be real and substantial, and shall be indicated by customary incidents of ownership, as demonstrated by an examination of the substance rather than the form of ownership and operating arrangements.
(3) A minority, woman or small business owner must possess the authority to direct or cause the direction of the management and policies of the firm critical to the operation of the primary business of the firm and the trade areas in which the firm is certified and apart from administrative duties and functions, and to make day-to-day decisions, on such matters of management, policy and operations. The firm shall not be subject to any formal or informal restrictions that limit the customary discretion of a minority, woman or small business owner. There shall be no restrictions by partnership agreements, charter requirements or other arrangements that prevent a minority, woman or small business owner from making a business decision of the firm without the cooperation or vote of any owner or other party who is not a minority, woman or small business owner.
(4) An MBE/WBE/SBE applicant shall satisfy business size standards commensurate with small business status. Except as required otherwise by law, to determine small business status for each trade, the City Manager shall adopt the annual gross receipt limitation for each trade as established by the U.S. Small Business Administration ("SBA") for participation in SBA Programs, as such SBA limitations are amended from time to time.
(5) For purposes of this program, the applicant must be actively involved in the day-to-day management of the firm. If the actual management of an MBE, WBE or SBE firm is contracted out to individuals other than the owner, those persons who have the ultimate authority to hire and fire the managers or who can obligate the firm in financial and contractual matters will for the purpose of this article, be considered as controlling the business.
(6) To determine the ownership or control of a business, all securities or other interests that constitute ownership or control of a business for purposes of establishing it as an MBE, WBE or SBE must be held directly by a minority, woman or small business owner. No securities or other ownership interests held in trust or by any guardian for a minor shall be considered held by a minority, a woman or small business owner.
(7) Ownership and control shall be measured as though not subject to the community property interest of a spouse.
(8) A business will be declared ineligible for certification when a reasonable and prudent determination cannot be made as to ownership and control for a family-owned enterprise where the members of the family actively involved in the business are not the qualifying individuals for certification.
B. Certification investigation. The City Manager shall investigate MBE, WBE and SBE applications for certification. Failure to cooperate and provide all information and documentation required to make a determination of eligibility under this article will disqualify the applicant for certification. The investigation of ownership arrangements may exceed the review of formal documents submitted by each entity if:
(1) The firm is applying for certification with the City for the first time;
(2) The firm is newly formed or it has minority, woman or small business ownership of less than one hundred percent;
(3) There is a previous or continuing employer-employee relationship between or among present owners;
(4) A business which is not an MBE, WBE or SBE has an interest in the firm;
(5) The ownership of the firm has changed since documents have been submitted to the City Manager;
(6) A review of the documents submitted with the application raises serious objective concerns regarding either ownership or control of the firm; or
(7) Information provided in the application process is found to be false, fraudulent, misleading or materially inaccurate.
C. Certification period. The City Manager shall grant certification to an approved MBE, WBE or SBE for a period of three years with annual updates of the applicable information. If an MBE, WBE or SBE is denied certification, the business cannot reapply for certification for a period of six months from the date of the notice of denial; but the business shall have the right to appeal the denial and to be certified if the appeal is decided in its favor.
D. Recertification. To remain certified, all MBEs, WBEs, and SBEs appearing in the certification database will be required to submit a new affidavit with required documentation triennially to the City Manager as follows:
(1) All documentation required as part of the annual update or triennial recertification process will be evaluated for completeness and accuracy to determine whether any changes have occurred that affect the status of the business as a bona fide MBE, WBE or SBE. An investigation may be conducted to evaluate an applicant for continuing certification or recertification as deemed appropriate by the City Manager.
(2) All certified MBEs, WBEs or SBEs are subject to monitoring by the City Manager to assure that the required ownership and control shall continue.
E. Decertification. The City Manager may decertify a business that the City Manager finds is no longer a bona fide MBE, WBE or SBE. Any of the following reasons, which are not intended to be all-inclusive, are sufficient grounds for decertification:
(1) The business no longer satisfies the ownership, control, and/or size requirements.
(2) The MBE, WBE or SBE fails to submit within a reasonable time period information requested by the City Manager.
(3) The business defaults and is terminated for cause on two or more City contracts within a one-year period.
(4) The MBE/WBE/SBE is found to have provided false, fraudulent, misleading or materially inaccurate information to obtain certification that affects the eligibility status of the firm for certification.
Businesses decertified for reasons other than the business's voluntary request may not apply for recertification for one year. A business that is decertified may file an appeal under Section 18-304.
(Ord. No. G-4697, § 3, adopted 5-18-2005, eff. 7-1-2005; Ord. No. G-4713, § 1, adopted 6-22-2005, eff. 7-22-2005)
Sec. 18-303. Reserved.
Sec. 18-304. Appeals.
A. Denial of certification and notice of decertification. Upon a denial of certification or decertification as an MBE, WBE or SBE by the City Manager, the City Manager shall notify the affected party in writing by certified mail, setting forth the reasons for the denial of certification or decertification.
B. Time for filing notice of appeal. Any contractor, subcontractor, vendor, or supplier who has been denied certification as a MBE, WBE or SBE or who has been decertified by the City Manager may appeal the decision by filing a written notice of appeal as designated by the City Manager within seven working days of receipt of the notice of the denial of certification or decertification. This written notice must state the reasons for the appeal.
C. Notice of hearing date and hearing. Within three working days of receipt of the notice of appeal from the aggrieved party, the City Manager shall forward the notice to a hearing officer.
D. Duties of the hearing officer.
(1) The hearing officer shall set a hearing date not more than seven working days from the date of receipt of the notice from the City Manager. The hearing officer shall cause notice of the hearing to be served upon all parties by certified mail. Such notice shall set forth with particularity the charges filed by the aggrieved business and shall include the hearing date, time, and place.
(2) At the hearing, all parties shall be provided a fair and impartial hearing and shall be allowed to produce any and all evidence in either party's possession concerning the determination of noncompliance with the requirements of this article or the denial of certification as an MBE, WBE or SBE. For the appeal, the burden of proof rests on the applicant to show that established criteria for MBE, WBE or SBE certification have been met.
(3) The hearing officer shall, within seven working days of the hearing, make a written decision on the appeal, which decision shall affirm, alter, or reverse the denial of certification by the City. If the hearing officer finds for the aggrieved party, as appropriate, the business shall be certified as an MBE, WBE or SBE and added to the certification database maintained by the City. The decision of the hearing officer shall be binding on all parties, subject to the right of appeal as provided by law.
E. Notice of decision. The hearing officer shall issue written notice of the decision on the appeal to all parties within seven working days of the hearing. The notice of decision shall be sent to all parties by certified mail and shall set forth the reasons for the decision.
(Ord. No. G-4697, § 3, adopted 5-18-2005, eff. 7-1-2005)
ARTICLE IX.
PHOENIX WOMEN'S COMMISSION*------------
Editor's note: Ord. No. G-4720, § 1, adopted July 1, 2005, effective July 31, 2005, added Article IX, to be entitled as herein set out.
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Sec. 18-305. Creation; purpose.
In order to provide a formal forum for citizen review of the City's affirmative action effort, salary equity, and to serve as an Advisory Board to the Council, there is hereby created a City of Phoenix Women's Commission (the "Commission"). The Commission shall be composed of volunteer citizens who shall be residents or employees of the City of Phoenix.
(Ord. No. G-4720, § 2, adopted 7-1-2005, eff. 7-31-2005)
Sec. 18-306. City of Phoenix Women's Commission– Composition; term of office.
A. The City of Phoenix Women's Commission shall consist of eighteen members, serving for a period of three years without compensation. Members shall be appointed by the Mayor subject to the approval of the Council.
B. In the event of the death, resignation, removal or disqualification of any member of the Commission, the Mayor shall appoint to the Commission a member who shall serve for the unexpired term thus vacated.
(Ord. No. G-4720, § 3, adopted 7-1-2005, eff. 7-31-2005)
Sec. 18-307. Appointment of officers; adoption of rules; quorum.
A. The Chairperson shall be appointed by the Mayor, subject to the approval of the Council[.] The Chairperson shall serve for one year.
B. The Commission may organize committees and adopt administrative rules and procedures to accomplish its purpose.
C. A quorum shall be necessary for conducting a meeting. The business of the Commission shall be transacted by a majority vote of members present.
D. All meetings shall be held, and notices and agenda shall be posted, in compliance with the Arizona Open Meeting Law, Section 38-431 et seq., Arizona Revised Statutes. The minutes of Commission proceedings shall be kept and filed in accordance with applicable laws dealing with public records. Robert's Rules of Order shall govern meeting procedure.
(Ord. No. G-4720, § 4, adopted 7-1-2005, eff. 7-31-2005)
Sec. 18-308. Powers and duties of the Commission.
A. The Commission shall have the following powers and duties:
1. Members are expected to attend all scheduled meetings.
2. Members of the Commission may be removed by the City Council for cause on motion adopted by the affirmative vote of two-thirds of the members of the Council. The Commission may petition the Council to have a member removed and a new appointment made by the Mayor to complete the remaining term of the member removed. Any member who misses three consecutive meetings may be considered not fulfilling the obligation assumed and be removed.
3. Abide by the provisions of the Arizona Revised Statutes pertaining to conflict of interest and conform to the City 's ethics policy. When a Committee member determines that they have a conflict of interest on an issue, they shall announce such conflict and refrain from discussing, voting, or participating in any manner on the issue.
4. The Chairperson shall preside at all meetings, decide all points of order or procedure and perform any duties required by law, ordinance, or these rules. The Chairperson shall have the power to call both regular and special meetings. The Commission, by request of two-thirds of its membership, may request a special meeting of the Committee.
5. The Commission shall elect a Vice-Chairperson.
6. The Commission meetings may include written reports, presentations or other necessary types of activities to provide information to its members and allow the Commission to discharge its duties. The Commission meetings are open to the public for the Commission to receive public comment.
7. Authority of the Commission shall be to recommend improvements on matters related to the status of women and implement specific projects and programs as approved by the Mayor and City Council within the following areas of responsibility:
i. Review the City of Phoenix Affirmative Action recruitment, hiring, placement, and promotional programs, and salary equity to identify strengths and weaknesses; and to make recommendations of changes needed;
ii. Define, review, and prioritize the problems of women as those problems relate to the City;
iii. Develop alternative solutions to those problems;
iv. Develop short range and long range goals and objectives for improving the status of women;
v. Evaluate projects as requested by the Mayor and Council;
vi. Recommend persons to serve on City Standing Committees, Advisory Boards and Ad Hoc Committees;
vii. Assist in efforts to provide information and educational programs to improve the status of women;
viii. Provide written reports to the Council regarding recommendations, submit special reports at the request of the Council, and submit an annual report of its activities to the Council in December of each year; and
ix. The Commission shall not become involved in political issues nor in matters which are outside the City's jurisdiction.
(Ord. No. G-4720, § 5, adopted 7-1-2005, eff. 7-31-2005)
Secs. 18-309– 18-399. Reserved.
ARTICLE IX.
REGISTERED DOMESTIC PARTNERSHIPSSec. 18-400. Purpose.
The purpose of this Article is to create a way to recognize committed relationships.
(Ord. No. G-5295, § 1, adopted 12-17-2008, eff. 2-9-2009)
Sec. 18-401. Defintion; domestic partnership.
In this Article, domestic partnership means two individuals that have filed a declaration of domestic partnership with the City affirming that they meet all of the following qualifications:
1. Both individuals reside within the City.
2. Both individuals currently share a common residence.
3. Both individuals are in a committed relationship and share responsibility for each other's common welfare.
4. Neither individual is married to any third party.
5. Neither individual is part of an existing domestic partnership or civil union with any third party.
6. Each individual is competent to enter into a contract.
7. Each individual is eighteen years of age or older.
8. The individuals are not related to one another by blood closer than would bar marriage in the State of Arizona.
(Ord. No. G-5295, § 1, adopted 12-17-2008, eff. 2-9-2009)
Sec. 18-402. Declaration of domestic partnership; filing location; prohibition.
A. Two individuals seeking to become domestic partners must complete and file a declaration of domestic partnership in person with the City Clerk Department.
B. No individual who has previously filed a declaration of domestic partnership in the City may file a new declaration of domestic partnership until a notice of termination of domestic partnership has been filed with the City. However, this prohibition shall not apply if the previous domestic partnership ended because one of the domestic partners is deceased.
(Ord. No. G-5295, § 1, adopted 12-17-2008, eff. 2-9-2009)
Sec. 18-403. Domestic partnerships; termination; effective date; notice to third parties; failure to give notice.
A. A domestic partnership ends when:
1. One of the domestic partners dies; or
2. A notice of termination of domestic partnership has been filed by one or both domestic partners with the City.
B. If one or more of the facts affirmed in the declaration of domestic partnership no longer exists, one or both parties to a domestic partnership shall file a notarized notice of termination of domestic partnership with the City Clerk Department. It shall be the filing partner's responsibility to provide a copy of the notice of termination to the non-filing party. However, this notice requirement shall not apply if the termination is due to the death of one of the domestic partners.
C. Termination of a domestic partnership shall be effective upon filing of the notice of termination of domestic partnership with the City by one or both partners, or on the date of the death of one of the domestic partners.
D. Following the termination of a domestic partnership, each former domestic partner who has received or has qualified for any benefit or right based upon the existence of a domestic partnership and whose receipt of that benefit or enjoyment of that right has not otherwise terminated, shall give prompt notification that the domestic partnership has terminated within reason to any third party who provides such benefit or right. Failure to give notice could result in repayment of benefits to the third party dating back to the month of termination.
E. Failure to provide notice to third parties as prescribed in this Section shall not delay or prevent the termination of the domestic partnership.
(Ord. No. G-5295, § 1, adopted 12-17-2008, eff. 2-9-2009)
Sec. 18-404. City Clerk Department records and registration; fee.
A. The City Clerk Department shall develop "Declaration of Domestic Partnership" and "Notice of Termination of Domestic Partnership" forms, and shall not add to or alter the requirements listed in Section 18-401 of this Article.
B. Each registrant shall:
1. Affirm that he meets the requirements of Section 18-401 of this Article.
2. Show current photo identification issued by a governmental agency within the United States that verifies the domestic partnership age requirement.
3. Sign the applicable form under penalty of perjury.
4. Have his signature notarized.
C. The City shall have declaration and termination forms available at the City Clerk Department.
D. The City shall keep a record of all declarations of domestic partnership and all notices of termination.
E. The City shall charge a nonrefundable administrative fee of $50.00 to persons filing a declaration of domestic partnership. No fee shall be charged for the filing of a notice of termination of domestic partnership.
F. The City shall register the declaration of domestic partnership in a registry and provide a copy of the declaration form to each of the domestic partners.