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08-894Amended 8/27/08 �� �� ORDINANCE CITY OF SAINT PAUL, MINNESOTA Presented by Council File # 08-894 Green Sheet # 3058197 Creating Ch 185 Of The Saint Paul To Regulate Contract Compliance Code THE COUNCIL OF THE CITY OF SAINT PAUL DOES HEREBY ORDAIN: Section I 8 Chapter 185 is hereby created to read as follows: 9 PUBLISf{E� OCT 16 2008 10 Sec.185.01.11efinitions. 11 12 For the pumoses of this chapter, the followin�words and �hrases shall have the meanings set forth in this 13 section, except whera the context clearly indicates that a different meanin� is intended_ 14 IS 16 17 18 19 20 21 22 23 A ffliate: Persons are affiliates of each other if, directiv or indirectiv, either one controls or has the power to contro] the other, or a third person controls or has the power to conYrol boYh. Evidence of control includes, but is not limited to, interlockine mana�ement or ownership; identitv of interests among family members; shared facilities and equipment; common use of emkloyees; or a business entity organized followin� the suspension or debarment of a person which has the same or similar management, ownership or principal employees as the suspended or debarred person. City means the City of Saint Paul and the housing and redevelopment authorityof the Citv of Saint Paul, Minnesota. 24 25 Covered transactions shall mean and include any contract under city_procurement proerams to which the 26 city is a part�or the performance of construction, repair or the furnishing of aoods and shall further 27 include those contracts for professional services and labor. "Covered transactions" include contracts 28 between a contractor and a subcontractor even if the subcontractor has no formal agreement with the cit� 29- "Covered transactions" shall also include those transactions specifically desiQnated by the U.S. Department 30 of Housing and Urban Development in such aeency's re�ulation ov� erning debannent and suspension and 31 other construction projects not handled through a city pxocurement pro�ram but which ase financed ox 32 economically supported in whole or in oart by city funds ar property, 33 34 Debarment shall mean an action taken by the council in accordance with this chapter to exclude a person 3� from participating in covered transactions. A person so excluded is "debarred." 36 37 Debarment proceedinQ shall mean an action taken that could lead to debarment, whether or not debarment 38 is the sanction imposed by the council. 39 40 Department shal] maan the Dapartment of Human Rights and Equal Economic OpportunitY 41 I� r � i � 'i � 42 43 44 45 46 47 �x 49 50 51 52 53 �4 55 56 57 58 59 60 61 62 63 64 65 66 67 6� 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 &6 87 Notice shall mean a written communication served in person or sent bv mail to the tast-known address of party, its identified counse( its aeent for service of nrocess or anv �artner officer director owner or ioint venturer of the partv. Notice. if undeliverable, shall be considered to have been received bv the addressee five 5 days after beine proper� sent to the last address known bv the citv. Participant An�person who submits a oroposal for, enters into, or reasonably may be expected to enter into a covered transaction. This term also includes an�person who acts on behalf of or is authorized to commit a participant in a covered transacCion as an a�ent or renresentative of anott�er oarticipant This term includes a subcontractor who is not a partv to the ori�inal contract but is hired as part of a covered transaction. Person: Any individual, corporation,partnership, association unit of povernment or leeal entity however or anized exc�t forei�n eovernments or foreign �overnmental entities public international orQanizations foreigngovernment-owned or eontrolied entities and entities consisting wholl�or oartiallv of foreien governments or forei�n Qovernment entities Yreponderance of evidence� Proof by information or testimony that compared with that opposine it leads to Che conclusion that the fact at issue is more probably true than not. Principal: Officer, director, owner, partner, key em l�oyee or other person within a participant with primary management or suoervisoryresponsibilities, or a person who has a critical influence on or substantive contro] over a covered transaction. whether or not emploved bv the participant. Proposal: A so]icited or unsolicited bid, application, rec�uest, invitation to consider or similar communication by or on behalf of a person seekin� to particiAate or to receive a benefit directl�or indirectly, in or under a covered transaction. Respondent: A person a�ainst whom a debarment or suspension action has been initiated. Suspension: An action taken in accordance with these regulations that immediately excludes a person from partici ap tin� in covered transactions for a te�orarv period pending completion of an investigation and such le�al or debarment proceedings as may ensue. A person so excluded is "suspended." Sec. 185.02. ApplicabilitV. This chapter applies to all persons who have participated, are currentiv partici atin or mayreasonably be expected to participate in "covered transactions " Sec. 185.03. Effect of action. a Except to the extent prohibited bv law gersons who are debarred or suspended shall be excluded from covered transactiQns as either narticinants or�rincinals throu�hout the operations of the city for the period of their debazment or susnension. Accordingly no emplovee or agent of the cit�shall enter into covered transactions with such debarred or suspended verson durine such�eriod except as oermitted pursuant to Section 185.03(b). ., / •i �: :• ss 89 90 91 92 9� 94 95 96 97 98 99 100 101 102 1�3 ]04 105 106 107 108 109 i10 111 112 113 114 115 116 117 118 }�9 120 12] 122 123 124 125 126 327 128 129 13Q 131 132 133 �b� Notwithstanding the debarment or suspension of anv person city and partic�ants may continue eovered transactions in existence at the time the person was debarred or suspended A decision as to the tvpe of termination action if any to be taken should be made onlv afrer thorouah review to ensure the proprietv oftheproposed action. (c) 7 he citv shall not enter into, renew or extend covered transactions with anv person or affiliate who is debarred or suspended Extensions shall include change orders to contracts already in effect unless specific written authorization for the change order has been eranted bv the councii jd) No affiliate participant �erson orincipal or respondent who has been debarred or suspended in accordance with this chapter may receive the benefits from any contract where the citv is a fundina source for the contract through an intermediarv so long as the period of debarment or susoension is in effect The Department shall cause laneua�e to be inserted in the bids or contract forms to reflect this provision {e) No affiliate participant �erson principal or res�ondent shall be awarded anv conri if after being debarred or suspended and with six (61 months thereafter, it reconstitutes or reforms itself in such a way as to avoid the effect of debarment or suspension Such a determination will be made by the Department applying the standards set fofth concerning evidence of control as set forth in the definition of affiliate Sec. 185.04. Causes for debarment. (a) Debarment or susoension may be imposed upon anXperson or participant in accordance with the provisions of this chaoter for the actions or inaction of theperson or articipant or for the actions or inaction of a suUcontractor in connection with a covered transaction Debarment or suspension mav also be imposed upon a subcontractor reeardless of whether they are in a direct contractual relationship with the city. Debarment or suspension may be imposed for: �l ) Conviction of or civil judgment for� the commission of fraud or a criminal offense in connecrion with obtainin�, aTtempting to obtain or performine a public or private agreement or transaction� federal or state antitrust statutes, includine those proscribing�rice fixine between com�etitors allocation of customers between competitors. and bid rie¢ine; embezzlement, theft, forgery, briberv falsification or destruction of records, making false statements, receivin� stolen propertv making fa]se claims ar obstruction of justice a violation of Minnesota consumer orotection statutes, or any other offense indicating a lack ofbusiness inte�rity or business honesty that seriouslv and directiv affects the present responsibility of a person (2) Material violation of the terms of a covered transaction pub]ic agreement or other transaction such as a willful failure to perform in accordance with the terms of one or more public aereements or transactions• a historv of failure to perform or of unsatisfactory performance of one or mor�ublic agreements or transactions or a wi11fu1 violation of a statutor�or regulatory provision or requirement applicable to a public agreement or transaction. �3) A procurement or nonprocurement debarment by any federal state or local aeenc� (4) Knowinalv doin� business with a debarred or suspended person in connection with a covered transaction, except as permitted in Section 185.03(bl. % . � 134 L�) Violation of a material provision of a voluntarv exclusion agreement entered into or of anv settlement 13 � of a debarment or suspension action. lib 137 138 139 140 141 ]42 143 144 14� 146 147 148 ]44 150 15] 152 153 154 15� ]56 157 158 159 160 161 lE2 163 164 165 166 167 158 169 170 171 172 773 174 175 176 177 178 179 �6) ViotatiQn of anv federal or state Iaw or citv ordinance regularing hours of labor and w�es includin¢ but not ]imited to: minimum wage standards Chapter 82 of the Saint Paul Administrative Code and an� otherprevailing waee standards, Chapter 98 of the Saint Paul Administrative Code and anv other living u;aae standards. the Federal Davis Bacon Act Minnesota Statute & I 16J (relating to business subsidies) discrimination in wages standards, or child labor standards. (7) Violation of: a. Chapter 183 of the Saint Paul Le�islative Code� ___ b. Chapter 84 of the Saint Paul Administrative Code; c. Am Federal, State or ]ocal rules re�ulations laws or a�eements reQardin� discrimination in emplovment vendor outreach �oals civil rights affirmative action equa] emoloyment opportunity conflict of interest or nondiscrimination. (8) Violation of a labor peace a�reement or project labor aoreement �9ZAnv serious or compelling causes that are related to aperson or participants fitness to enter into or successfully perform a covered transactian with the cit� �) Suspension mav be applied for any of the causes identified in this section when immediate action is necessary to protect the public interest. 5ec. 185.05. Review Required. The Department shali monitor all contracts for comnliance with all applicable terms If an investigation reveals that a person or participant has violated a relevant federal state or local law or failed to meei a term of the contract the Department shall notify that person or participant in writin� of the noncompliance and provide a reasonable amount of time to �ain compliance. Faiiure to complv within the given time mav result in a debarment proceedine. Sec. 185.06. Debarment proceedine process. ja} Notice and hearinQ requzrements In any case where the council mav or intends to consider a debarment, the person or participant havin� a covered transaction wiYh the citv shall be given notice and an �portunitv to be heard asprovided herein The council mav consider such debarment when recommended � the Department. {b) Notice If the Department determines that cause exists to commence a debarment under Section 185.04, the Department, or the Citv Attorney's Office on behalf of the department shali issue a notice of the propose�roceedings to the person or participant havina a covered transaction with the city The notice shall advise thepersan or participant of the followine: (1) That a debarment is bein�considered• / � � �i �: :• I 80 �2) The reasons or causes for oroposed action in terms sufficient to put the person or oarticipant on notice ] 81 of the conduct or transaction(s) upon which it is based• 182 l83 (3) Theproposed sanction; ]84 S 8� �4) That the person or participant is entitled to a hearin� before action is taken bv the council• 18b 187 188 189 190 19] i92 193 144 195 196 197 198 199 200 201 202 203 204 205 206 207 204 209 210 211 212 213 214 Z1J 236 217 2l8 219 ZZO 221 222 223 224 Z2> �5� T'hat the person or�articipant can choose to admit or denv the alleeations �ivine rise to the debarment proceedin� (a) If the person o�articipant wishes Co admit the al]e�ations then the person may request a public hearine before the counci] to address the a�propriate penalty In that case the council is not bound bv the Department's recommended sanction and mav deviate unward or downward from the recommended sanction consistentiv wi[h the presum to ive penalties. (bZ If the berson or partic�ant wisbes to denv the allegations iving rise to the debarment proceedine, then the person must request a hearin� before a hearing examiner. (c) Failure to request a hearing in writing within fifteen (15) working davs of the notice of proposed debarment proceedin�shall be deemed an admission of the alleQations and aeceptance of the proposed penalty In that event the matter shall be placed on the consent a�enda for council approval of tt�e proposed penaltV• Ic) Upon receipt of a written r�uest from aperson or partiClpant (respondent) Che Department shall anan�e a hearing before a hearing examiner appointed b�the council or retained bv contract with the city for thatpurpose Z he verson or participant shall be orovided an o�portunitv to present evidence and argument as well as meet adverse testimony or evidence bv reasonable cross-examination and rebuttal evidence The hearing examiner maY in its discretion oermit otber intereste�ersons the op op rtunitY to present testimony or evidence or otherwise oarticioate in such hearin� Sec. 185.07. HearinE before hearin� examiner. �) The hearing examiner shall hear all evidence as may be presented on behalf of the city and the respondent, and shal] present to the council written findings of fact and conclusions of law together with a recommendaYion re�ardi� the appropriate sanction. (b) "I'he respondent may represent himself or cboose to be represented by another. (c) Record evidence The hearin� examiner shall receive and keep record of such proceedin�s includina testimonv and exhibits, and shall receive and give weight to evidence includin hearsay evidence which possesses probative value commonl� accepted by reasonable and�rudent persons in the conduct of their affairs. jd) The city must�rove the cause for a debarment by apreponderance of the evidence If the action is based upon a criminal conviction, a civil iudgment arising out of it normal business affairs or debarment bv � �i �: :• 226 227 Sec. 185.08. Hearine before council. 228 229 230 231 232 233 234 23� 236 237 238 239 24Q 241 242 243 244 245 246 247 248 249 250 251 �a) The councii shall consider the evidence contained in the record the hearin examiner's cecommended findines of fact and conclusions, and shal] not consider any factua] testimony not previouslv submitted to and considered bv the heazina examiner Afrer receipt of the hearing examiner's findines conclusions and reco_mmendations, the council shall provide the respondent an opportunitv to nresent oral or written ar�uments alleaing enor on the part of the examiner in the application of the law ar interpretation of the facts, and to present ar2ument related to the recommended sanction. U,�on conclusion of that hearine and after considerine the record, the examiner's findines and recommendations, t�ether with such additiona] arguments presented at the hearin�, the council sha11 determine what, if anv sanction shall be taken which action shall be bv resolution The council mav accept reject or modifv the findin�s conclusions and recommendations of the hearing examiner. �b) Council action, resolution to contain findings Where the council ordexs debarment or other sanction with respect to a person or participant, the resolution bv which such action is taken shall contain its findings and determination The council may adopt all or part of the findings conclusions and recommendations of the hearing examiner and incorporate the same it its resotution im�os� the debarment or other sanction. (c) Imposition of costs. The council ma�imnose upon anv respondent some or all of the costs of a contested hearing before an ind�endent hearing examiner. The costs of a contested hearinQ include but are not limited to, the costs of the administrative law iudge or independent hearin� axaminer stenographic and recordine costs coovin� costs city staff and attorney time for whicb adequate records have been kept 2�2 was frivolous, arbitrary or capricious, made in bad faith, or made for the ourpose of delav or harassment. 253 254 255 256 257 258 ?59 260 261 262 263 264 265 266 267 268 269 270 Sec. 185.09. Debarment period; other sanction. �a) Debarment shall be for aperiod commensurate with the seriousness of the cause(s) A debarment shall not exceed three (3) years If a susoension precedes a debarment the su�ensionperiod shall be considered in determinine the debarment period The Department sha11 recommend a sanction based uoon appropriate aggravatin� and mirieating circumstances such as� (1) Thepotential for harm or imminent threat to public health• (2). The extent of deviation from contractual or regulatorv reguirements• (3). The de2ree of willfulness or negligence• (4). The historo af noncompliance or comoliance� (51, The demonstration of 2ood faith efforts to correct a violation• ,, , i , �. �: :• 271 272 273 274 Z7J 276 277 278 279 280 281 282 283 284 28� 286 287 288 289 290 241 292 293 294 295 296 297 29�3 299 30Q 301 302 303 304 305 306 307 308 309 31(l 311 312 313 314 ��All suspensions shall be for a temoorary�eriod pendin�the comoletion of an investigation and such l�al or debarmentproceedines as may ensue A suspension shall become effective immediate� upon issuance of the notice specified in section 185.�6(c) including notice that a suspension is required to protect the public interest. (c) 'I'he council mav renew an existing debarment for an additional pexiod if the councit determines unon recommendation of the Department that an extension is necessarv to protect the public interest However a debarment may not be extended solelv on the basis of the facts and circumstances upon which the initial debarment action was based if debarment for an additionalperiod is determined to be necessary the procedures of section 185.06 shall be followed to extend the debarment (d) A�erson orparticipant may request the council to reverse the debarment decision or to reduce the period or sco�e of debarment Such a reauest shall be made to the Deoartment in writing and supported by documentation and shall not be submitted earlier Yhan six (6) months afrer the final decision to debar. In no event may more than one (1) such request be submitted within anv twelve-month period The Department shall make a report and recommendation to the council at a public hearin� regardingthe request for reversal or reduotion. The burden shall be on the parson or participant toprove the facts that substantiate the basis for reversal of the debarment, and that reversal of the debarment is necessarv to prevent an unreasonable exclusion. The Counci] shal] issue its decision by resolution explainine the basis for the erant or denial of a reversal or reduction. The council may �rant such a rectuest for reasons includin�, but not limited to: (1) Reversal of the convicfion or civil iudQtnent u�on which the debarment was based• (21 Bona fide chanae in ownership or mana�ement (3) Elimination of other causes for whicb the debarment was imposed• or (4) Other reasons the council deems ao�rooriate. Sec. 185.10. Debarment records. All documents and other data assembled pursuant to this chapter shall be handled and retained by the Department ar Citv Clerk in accordance with applicable loca] and state data retention nolicies Sec. 185.11. Business licensin2. (a) Whenever a debarnient action is comoleted aaainst aparticipant who is also a holder of a business license from the citv, the Deoartment shall Yransmit a copy of the written debarment decision atongwith copies o£the materials assembled during the debarment process to the citv license inspector Within ten �10) working days of receipt of the decision and the materials the license inspector shall determine whether to commence an adverse license hearin�. Any such adverse hearin�nitiated shall be handled in accordanee with secrion 310.05 of the Le�islative Code. ► i � �� �: :• 315 �b�Anv adverse action taken bv the citv concerning the license of any person based on the breach of 316 contractual responsibilities shall be refened to the Denartment for a determination as to whether debarment 317 proceedines hereunder should be commenced 318 319 Section 185.12 Presumative nenalties for cerfain violations. 320 (a) Presumptive penallies for cerlain violations The pumose of this section is to establish a standard bv 321 �ahich the citv council determines the length of debarment Thes�enalties are presumed to be appropriate 322 ior everv case; however the council may deviate therefrom in an individual case where the counci] finds 3Z3 and determines that there exist substantial and compelling reasons makin,g it more appropriate to do so 324 When deviating from these standards the council sha11 provide wiitten reasons that specify why the 32� penaltv selected was more appropriate. Type of Violation (1) Criminal conviction or civil judgment Ap�earance I st 6 month Debarment (2) Material or repeat violation of agreement 6 month Debarment (3) Debarment by another jurisdiction (4) Doin� business with debared person (5) Violation of voluntarv exclusion a�reement or debarment settlement aereement Len�th of debarment imposed 6 month debarment One year debarment (6) Vioiation of hours of wa�e or other labor 6 month standards debarment (7) Violation of regulations or contractual 6 month ferms re�arding discrimination, vendar debarment outreach, civil rights, affirmative act�on (8) Violation of labor �eace or pro}ect labor 6 month agreement debannent j9) Other serious or co�el]in� causes 326 327 328 329 �30 331 332 b month debannent 2nd 3rd One year Two �ar debarment debarment 4th Threeyear debarment One year Two vear Threeyear debarment debarment debarment One � Two yeaz Three vear debarment debarment debarment Three �ear debarment One vear debarment One �ar debarment One year debarment One year debarment Two year Three vear debarment debarment Three ,year Three year debarment debarment Two vear Three veaz debarment debarment Two Year Three vear debarment debarment Ib) Violations occurYinQ after the date ofthe notice ofhearinQ Violations occturine after the date of the notice of hearin� that are brouaht to the attention of the Deoartment prior to the hearing date befare an administrative law judge (or before the council in an uncontested facts hearinel maybe added to the noticels) y stinulation if the person orparticipant admits to the facts and shall in that case be treated as though part of the "lst Appeazance " Tn all other cases violations occurring after the date of the fonnal notice of hearine shali be dealt with as a"2nd Apnearance" before the council The same procedures shall apply to a second, third or fourth apoearance before the couneil. • > >i �: :� 33 � (c) Subsequent appearances Upon a second third or fourth appearance before the council by a particular 334 person or particinant the council shall impose the presumptive penalty for the violation or violations 33� gi� ina rise to the subsequent appearance without recard to the particular violation or violations that were 3�6 the subiect of the first or prior ap�earance. 337 (d� Com�utation oftime. 338 (1) If aperson. particioant or affiliate appears before the council for any violation where that violation has 339 occurred within two (2�years after the first appearance of the same person participant or affiliate for a 340 violation listed in para¢raph (a) above the current apoearance shall be treated as a second ap�earance for 341 the purpose of determinin� the presumptive penaltv. 342 (2) If a nerson. paRicioant or affiliate has ap�eared 6efore the council on two (2��revious occasions for 343 violations and if said person. �articipant or affiliate aeain aqoears befare the council for a vio]ation and if 344 the current violation occurs within five (5) vears of the violation that eave rise to the first appearance 345 before the council, then the current appearance shall be treated as a third aopearance for the pumose of 346 determining presu�tive penalt� 347 (31 If a person participant or affiliate has appeared before the council on three (3Zprevious occasions each 348 for violations listed and if said person �articipant or affiliate again appears before the council for a 349 violation and if the current violation occurred within seven (7) years of the violation that uave rise to the 350 first appearance then the current appearance shall be treated as a fourth appearance for the pumose of 351 determining the presumptive oenaltv. 352 (4) An�appearance not covered by subsections (1), (2) or (3) above shall be treated as a first appearance. 353 In case of multiple viQlations in any appearance the date to be used to measure whether two (2) five (51 or 354 seven {7) Years have elapsed shall be the date of the violation last in time at the first appearance and the 355 date of the violation first in time at any subsequent apoearance. 3�6 Sec. 185.13 List of records of debarred contractors. 357 (1) List: The Deoartment shall compile, maintain and �qblish a current consolidated list of all debarred 358 contractors ensure that the citv does not solicit or accept bids from negotiate with award conCracts 359 to and approve or allow subcontracts with listed contractors Persons or participants with contracts 360 awarded by the city shall ensure that no subcontracts are issued to debarred contractors 361 (2) Records: The Department shall mainYain records relatin� to each debarred contractar These 362 records shall contain the name and address, cause for debarment and the date each cause occurred 363 any limitations or deviations from the normal effect of the debarmenY and the effective and 364 termination dates of the debarment. 365 Sec. 1�5.14 Additional Penalties. 366 Nothine in this section shall �reclude the enforcement of provisions of this chapter in any court of 367 comnetent jurisdictiun bv an�appropriate form of civil action includinp seekina to enioin any continued 368 violation and seekine tQ co�el obedience by issuine an order to correct violations. ry , �. / a s �� 369 Sec. 185.15 Severabilitv. 370 If anv section or anv portion of a section of this ordinance shall be declazed unconstitutional invalid or 371 inooerative in whole or in part bv any court of competent iurisdiction the remainine sections and al] 372 portions thereof not declared unconst3tutional, invalid or inooerative shall remain in full force and 373 effect, and no such determination shall invalidate the remaining sections or oortions of sections of this 374 ordinance. 375 Section 2 376 rhis Ordinance shall take effect and be in farce thirty (30) days following its passage, approva] and i77 publication. p UBL.1Sti��q ocr � s roae Requested by Department of: By: Approved by the Office of Financial Services By: Appr v City Attomey .�^` p BY; t� D�'d� Approved by Mayor for Submission to Council AdopyiemCertified b C n' Secretary g / B Appro d by M� r: ki G� By: AdoptedbyCouncil: Date �(�—� 7 {�Q� � Green 5heet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � W �`� CA -�rtvAC�ev Cnnfact Person E. Phone: John Choi 266-8710 musi �se on 2aAUC-oa Doc. Type: ORDINANCE E-DxumeMRequired: Y Document Contact: Julie Kraus Contact Phone: 266-8776 13-AUG-0S � Assign Number Fm Routing Order Total # of Signature Pages ^ (Clip All Locations for SignaW re) Green Sheet NO: 3058197 0 ' Attorney ! I I ' Attom De arlmeutD'uector 2 ' Attome 3 a or's Office Ma orlASSistani 4 omcit 5 'tv Clerk CiN Clerk Approval of the attached ordinance crea6ng Chapter 185 of the Saint Paui Legisladve Code to Regulate Coniract Compliance. iaanons: Hpprove �H� or n Planning Commission Cl6 Commikee Civil Service Commission 1. Has this persoNf+rm ever worked under a contrad for this tlepartmenY? Yes No 2. Has this personffirm ever been a c�ty employee? Yes No 3. Does this perso�rm possess a skill not normally possessed by any current city employee? Yes No Expiain all yes answers on sepa2te sheet and attach to green sheet Initiating Problem, lssues, Opportunky (VJho, What, When, Where, WFry): Also before tha Council is an ordinance to created a new department enritled Depaziment of Human Rights�and Equai Bconomic Opportuniry. The main goal of the new depariment is to improve internal communicafion and coordination of conuact related acrivities and to create a single point of accountabiliry. Moreover, all staff wiffi1 confract related responsibiliries will operate under the same leadership and mission and can approach their work in a way that will lead to outcomes that meet the policy objecrives of the City's elected officials. Advantages If Approved: For contract related actiiviries, there will be improved internal communication and coocdination as well as a single point of contact. Employees in the new deparknent will have the same leaderslilp and mission. Disadvantages If Approved: None. Disadvantages if Not Approved: AdvanTages listed above will not be realized. Transaction: Funding Source: Finartclai Infarmatian: (Facplainj CosURevenue Budgeted: Activity NumbM: August 13, 2008 9:55 AM Page 1 Council File # � Green Sheet # ' ORDINANCE CITY OF �S�41NT P,�1UL, MINNESOTA Presented by Creating Ch 185 Of The Saint Paul Legislative Code To Regulate Contract Compliance TFIE COUNCIL OF THE CITY OF SAINT PAUL DOES HEREBY ORDAIN: Section 1 Chapter 185 is hereby created to read as follows: 9 10 5ec. 185.01. Definitions. 11 12 For the purposes of this chanter, the following words and phrases shall have the meanin¢s set forth in this 13 section, except where the context clearlv indicates that a different meanina is intended• 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 A�Ziate: Persons are affiliates of each other if directiv or indirectiv either one controls or has the nower to control the other, ar a third person controls or has the oower to control both Evidence of control includes but is not limited to interlockine management or ownership• identity of interests among family members• shared facilities and equipment; common use of emoloyees or a business entitv or�anized followin� the suspension or debarment of a uerson which has the same or similar manaeement ownership or principal emplovees as the suspended or debarred nerson. Citv means the Citv of Saint Paul and the housin� and redevelopment autharitv of the City of Saint Paul Minnesota. Covered transactions shall mean and include any contract under citv nrocurement programs to which the citv is a narty for the perforxnance of construction renair or the furnishine of goods and shall further include those contracts for nrofessional services and labor. "Covered transactions" include contracts between a contractor and a subcontractor even if the subcontractor has no formal aereement with the citv "Covered transactions" shall also include those transactions specificallv desic>.nated bv the U S Deparhnent of Housine and Urban Development in such agency's re ulg ationgovernine debarment and susnension and other construction oroiects not handled throu�h a citv procurement prO�ram but which are financed or economicallv supported in whole or inpart by citv funds orpropert� Debarment shall mean an action taken bv the council in accordance with this chapter to exclude a person from participating in covexed transactions A nerson so excluded is "debarred " Debarment proceedinQ shall mean an action taken that could lead to debannent whether or not debannent is the sanction imposed bv the council. Deaartment sha11 mean the De�utment of Human Rights and Fnual Economic Opvortunit� Y� � � 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 Notice shall mean a written communication served in nerson ar sent bv mail to the last-known address of pa�t � its identified counsel, its aeent for service ofj�rocess, or any partner, officer, director, owner or ioint venturer of the party. I3otice, if undeliverable, shall be considered to have been received by the addressee five 5 days after beingproperly sent to the last address known by the cit� Participant Anyperson who submits a proposal for enters into or reasonablv ma� e expected to enter into a covered transaction. This term also includes any person who acts on behalf of or is authorized to commit a narticipant in a covered transaction as an agent or renresentative of another participant This term includes a subcontractor who is not a party to the ori�inal contract but is hired as nart of a covered transaction. Person• Any individual corporation partnership association unit of �overnment or le¢al entitv however �anized, except forei�n eovemments or foreign �overnmental entities public international ar�anizations foreien government-owned or controlled entities and entities consistin¢ whollv or nartiaily of foreien �ovemments or foreiQn �overnment entities. Preponderance of evidence: Proof bv information or testimonv that compared with that opposine it leads to the conclusion that the fact at issue is more nrobably true than not. Principal: Officer director owner nartner key emplovee or other verson within a artici�ant with primarv manaQement or sunervisorv resnonsibilities, or a nerson who has a critical influence on or substantive control over a covered transaction whether or not emnloved bv the narticiUant Pronosal� A solicited or unsolicited bid aptilication request invitation to consider or similar communication by or on behalf of a nerson seekin¢ to narticipate or to receive a benefit directiv or indirectly, in or under a covered transaction. Respondent: A person a¢ainst whom a debarment or suspension action has been initiated Susnension: An action taken in accordance with these reeulataons that immediately excludes a person from participating in covered transactions for a temporary ep riod pendina completion of an investigation and such leeal or debarment nroceedin s as mav ensue A person so excluded is "susuended " Sec. 185.02. Apnlicabilitv. This chapter apulies to all persons who have partici�ated are currently articipatin o�r may reasonably be e�ected to narticinate in "covered transactions " Sec.185.b3. Effect of action. (a) Excerot to the exten�rohibited bv law �ersons who are debarred or suspended shall be excluded from covered transactions as either particinants or urincivals throughout the onerations of the city for the period of their debarment or susuension Accordinelv no employee or agent of the city shall enter into covered transacrions with such debarred or suspended person durine such period except as permitted nursuant to Section 185.03(b). �► ' 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 ll9 120 121 122 123 124 125 126 127 128 129 130 131 132 133 �b) Notwithstandin� the debannent or suspension of anv nerson, city and participants may continue covered transactions in existence at the time the �erson was debarred or susnended. A decision as to the type of termination action, if anv, to be taken should be made onlv after thoroueh review to ensure the proprietv of the pronosed action. �) The citv shall not enter into, renew or extend covered transactions with any person ar affiliate who is debarred or susnended Extensions shall include chan¢e orders to contracts alreadv in effect unless specific written authorization for the chanQe order has been azanted by the council. (� No affiliate particlpant erson princinal ar respondent who has been debarred or suspended in accordance with this chauter mav receive the benefits ffom anv contract where the citv is a fundin source for the contract throush an intermediarv so lone as the period of debannent or sustiension is in effect The Department shall cause laneuage to be inserted in the bids or contract forms to reflect this nrovision �) No affiliate, participant, person, principal or respondent shall be awarded anv contract if after being debarred or susuended and with six (61 months thereafter it reconstitutes or reforms itself in such a wav as to avoid the effect of debarment or susnension. Such a detertnination will be made bv the Deparhnent applvine the standards set forth concerning evidence of control as set forth in the definition of affiliate Sec.185.04. Causes for debarment. (a) Debarment or sus�ension mav be im�osed u op n any person or nartici�ant in accardance with the provisions of this chanter for the actions or inaction of the oerson or oarticinant or for the actions or inaction of a subcontractor in connection with a covered transaction Debarment or suspension mav also be imuosed upon a subcontractor reQardless of whether thev are in a direct contractual relationship with the cit Debarment or susoension ma be imroosed for• (11 Conviction of or civil }ud�nent for: the commission of fraud or a criminal offense in connection with obtaini� attemptinQ to obtain or performing a public or nrivate aereement or transaction• federal or state antitrust statutes includinQ those nroscribine price fixin� between comuetitors allocation of customers between competitors, and bid ri�ein�• embezzlement theft forgery bribery falsification or destruction of records, makine false statements receivine stolen_propertv makin¢ false claims or obstruction of justice• a violation of Minnesota consumer protection statutes or any other offense indicatinQ a lack of business inteeritv or business honestv that seriously and directiv affects the uresent responsibility of a person L) Material violation of the terms of a covered transaction public a¢reement or other transaction such as a willful failure to perform in accordance with the terms of one or mare nublic aPreements ar transactions a historv of failure to nerform or of unsatisfactory uerformance of one ar more public asreements or transactions• or a willful violation of a statutory or reQUlatorv nrovision or requirement applicable to a public agreement or transaction (3) A urocurement or nonnrocurement debarment by any federal state or local a�encX (4) Knowinel�g business with a debarred or susnended person in connecfion with a covered transaction, except as permitted in Section 185.03(b). i Jt �♦ I 134 (5) Violation of a material nrovision of a voluntarv exclusion a�reement entered into or of anv settlement 135 of a debarment or suspension action. 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 (6) Violation of any federal or state law or citv ordinance re¢ulating hours of labor and waaes includina but not limited to: minimum wa¢e standards, Chapter 82 of the Saint Paul Administrative Code and anv other prevailinQ wa�e standards, Chapter 98 of the Saint Paul Administtative Code and anv other living wa�e standards, the Federal Davis Bacon Act Minnesota Statute � 116J (relatine to business subsidiesl disciiinination in waees standards, or child labor standards. L) Violation of: a. Cha�ter 183 of the Saint Paul Le�islative Code; b. Charoter 84 of the Saint Paul Administrative Code; c. Anv Federal, State or local rules regulations laws or a�reements r�ardine discrimination in em l�oyment vendor outreach goals civil riehts affirmative action equal emnlo ent opnortunitv conflict of interest or nondiscrimination. (8) Violation of a labor ueace aQreement or �roject labor agreement. {� Any serious or co �elline causes that are related to a person or articinants fitness to enter into or successfully perform a covered transaction with the c�. �b) Suspension may be applied for anv of the causes identified in this section when immediate action is necessarv to protect the roublic interest. Sec. 185.05. Review Required. The Department shall monitor all contracts for compliance with all applicable terms If an invesri ag tion reveals that a oerson or participant has violated a relevant federal state or local law or failed to meet a term of the contract the Department shall notify that_ person or varticipant in writing of the noncomnliance and provide a reasonable amount of time to gain compliance Failure to comnlv within the eiven time shali result in a debarment �roceeding Sec. 185.06. Debarment proceedina process. �) Notice and hearina requirements. In anv case where the council may or intends to consider a debarment, the nerson or participant having a covered transaction with the citv shall be �iven notice and an opnortunitv to be heard as provided herein. The council mav consider such debarment when recommended bv the DepartmenC. �bl Notice: If the Department determines that just cause exists to commence a debannent the Denartment or the Citv Attornev's Office on behalf of the deparhnent shall issue a notice of the nronosed nroceedinQs to the nerson or articipant having a covered transaction with the city The notice shall advise the person or particinant of the following; (1) That a debarment is bein� considered• Vg� V� 4 180 (21 The reasons or causes for�roposed action in terms sufficient to put tYie person or participant on notice 181 of the conduct or transacrion(s) upon which it is based; 182 183 (3) The_pronosed sanction; 184 185 (4) That the person or participant is entitled to a hearing before action is taken bv the council• 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 (5) That the person or particinant can choose to admit or denv the allegations giving rise to the debarment proceedin�. (al If the nerson or narticipant wishes to admit the allegations. then the person may rec�uest a public hearing before the council to address the approuriate penalty. In that case the council is not bound b�the DeuartmenYs recommended sanction and mav deviate upward or downward from the recommended sanction consistentl�with the resum�tive penalties. _ (bl If the person or particinant wishes to denv the allegations givine rise to the debannent proceedine, then the person must request a hearingbefore a hearine examiner. (cl Failure to request a hearing in writing within fifteen (15) working days of the notice of proposed debarment proceeding, shall be deemed an admission of the alleeations and accentance of the proposed nenaltv In that event the matter shall be placed on the consent aeenda for council apuroval of the nroroosed penalty.. � U�on receint of a written request from a nerson or narticipant (resvondentl the Denartment shall arran¢e a hearin¢ before a hearine examiner arovointed bv the council or retained by contract with the city for that nurpose The uerson or particinant shall be provided an opportunitv to nresent evidence and arQument as well as meet adverse testimonv or evidence bv reasonable cross-examinafion and rebuttal evidence. The hearine examiner mav in its discretion roermit other interested nersons the o� ok rtunity to present testimonv or evidence or otherwise particinate in such hearin�. Sec. 185.07. Hearin¢ before hearinE examiner. (a) The hearine examiner shall hear all evidence as mav be presented on behalf of the ci� and the resnondent, and shail nresent to the council written findines of fact and conclusions of law toeether with a recommendation regazdine the appronriate sanction. Lb) The resnondent mav reoresent himself or choose to be re oresented bv another �c) Record; evidence. The hearing examiner shall receive and keep record of such �roceedines including testimonv and exhibits, and shall receive and give weight to evidence includin� hearsav evidence which possesses nrobative value commonlv accepted by reasonable and run dent persons in the conduct of their affairs. �) The citv must prove the cause for a debarment bv a ureoonderance of the evidence If the action is based uroon a criminal conviction a civil judgtnent arisina out of it normal business affairs or debarment b_y a federal or state aeency or another municipality the standard shall be deemed to have been made The respondent has the burden of proof for establishine mitiQatinQ circumstances � I �� �� • 226 227 Sec. 185.08. Hearin¢ before council. 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 � The council shall consider the evidence contained in the record, the hearine examiner's recommended findines of fact and conclusions and shall not consider any factual testimonv not »reviously submitted to and considered by the hearin� examiner. After receipt of the hearin2 examiner's findings conclusions and recommendations, the council shall nrovide the respondent an op�ortunitv to present oral or written �uments alle�n¢ error on the part of the examiner in the apnlication of the law or inter�retation of the facts and to present areument related to the recommended sancrion U�on conclusion of that hearine and after considerin� the record, the examiner's findines and recommendations together with such additional �nents presented at the hearin¢ the council shail determine what if any sanction shall be taken which action shall be by resolution. The council ma�accept reject or modifv the findines conclusions and recommendations of the hearina examiner. (b) Council action, resolution to contain findings. Where the council orders debannent or other sanction with resDect to a person or participant, the resolution bv which such action is taken shall contain its findines and determination. The council mav adont all or part of the findines conclusions and recommendations of the hearing examiner and incornorate the same it its resolution imnosin� the debarment or other sanction. �) Imposition of costs The council mav impose upon anv resnondent some or all of the costs of a contested hearin� before an independent hearine examiner. The costs of a contested heari � include but are not limited to, the costs of the administrative law judge or independent hearine examiner stenogranhic and recordine costs, copvine costs citv staff and attorney time for which adequate records have been ke�t rental of rooms and eauiLment necessarv for the hearing and the cost of exnert witnesses The council may imuose all or nart of such costs in any eiven case if the position claim or defense of the resnondent was frivolous arbitrary or ca�ricious made in bad faith or made for the purpose of delav or harassment Sec. 185.09. Debarment neriod; other sanction. La) Debarment shall be for a Deriod commensurate with the seriousness of the cause(s) A debannent shall not exceed three f3) years. If a sus enp sion precedes a debarment the suspension period shall be considered in determinine the debarment neriod The Department shall recommend a sanction based upon ap�ropriate aggravatingand mitigarin� circumstances such as: �). The potential for harm ar imminent threat topublic health• (21. The extent of deviation from contractual or regulatorv requirements• (3 . The depree of willfulness or neeli ence• (4). The historv of noncompliance or com�liance• (5). The demonstration of ¢ood faith efforts to correct a violation� a: •� 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 �b All susnensions shali be for a temporary period oendin¢ the complerion of an investi¢ation and such legal or debarment vroceedings as mav ensue. A suspension shall become effective immediately unon issuance of the notice specified in section 185.Q6(cl includin� notice that a suspension is rec�uired to protect the public interest. �) The council mav renew an existine debarment for an additional neriod if the council determines, upon recommendation of the Denartment, that an extension is necessarv to �rotect the public interest. However a debarment may not be extended solely on the basis of the facts and circumstances upon which the initial debarment action was based. If debarment for an addirional period is determined to be necessarv the pro cedures of section 185.06 shall be followed to extend the debannent. Ld) A nerson or participant may request the council to reverse the debarment decision or to reduce the period or scone of debarment. Such a request shall be made to the Department in writing and supported by documentation and shall not be submitted earlier than six (6) months after the final decision to debar In no event may more than one (11 such rec�uest be submitted within anv twelve-month �eriod The D�e artment shall make a report and recommendation to the council at a Uublic hearing re�ardin� request for reversal or reduction The burden shall be on the nerson or participant to nrove the facts that substantiate the basis far reversal of the debarment, and that reversal of the debarment is necess�rv to prevent an unreasonable exclusion. The Council shall issue its decision bv resolution ex laining the basis for the grant or denial of a reversal or reduction The council mav grant such a request for reasons inchidine, but not limited to: (1) Reversal of the conviction or civil iud ent unon which the debarment was based• (2) Bona fide change in ownership or mana�ement (3) Elimination of other causes for which the debarment was imroosed• or (41 Other reasons the council deems a pro riate. Sec. 185.10. Debarment records. All documents and other data assembled nursuant to this chanter shall be handled and retained bv the Department or City Clerk in accordance with ap�licable local and state data retention �olicies Sec. 185.11. Business licensing. (a) Whenever a debarment action is com lep ted against apartici�ant who is also a holder of a business license from the city the Deparhnent shall transmit a copv of the written debarment decision alonp with copies of the materials assembled during the debarment process to the citv license insnector Within ten �10 workin�vs of receipt of the decision and the materials the license insnectar shall determine whether to commence an adverse license hearine Anv such adverse hearin� initiated sha11 be handled in accordance with section 310.05 of the I,eaislative Code �� I � 315 �b__LAny adverse action taken bv the citv concerning the license of anv oerson based on the breach of 316 contractual re�onsibilities shail be referred to the Department for a determination as to whether debarment 317 proceedines hereunder should be commenced. 318 319 Section 18512 Presumnfive penalties for certain violafions. 320 321 322 323 324 325 [a) PresumDtive penalties for certain violations. The purpose of this section is to establish a standazd bv which the citv council determines the leneth of debannent These penalties aze oresumed to be anpropriate for every case: however the council mav deviate therefrom in an individual case where the council finds and determines that there exist substantial and compellin¢ reasons makin¢ it more a nropriate to do so When deviating from these standards the council shall provide written reasons that specifv why the penaltv selected was more appronriate• T�e of Violation 2nd 3rd 4th (1) Criminal conviction or civil iudement Anuearance 1 st 6 month Debarment L2) Material or reoeat violation of asreement 6 month Debarment (3) Debarment bv another iurisdiction (4� DoinQ business with debared_person (5) Violation of voluntarv exclusion a�reement or debannent settlement a�reement Len h of debarment im osed 6 month debannent One vear debarment (61 Violation of hours of waQe or other labor 6 month standards debarment (7) Violation of re�ulations or contractual 6 month terxns reQardine discrimination, vendor debarment outreach, civil rights, affirmative action (8) Violation of labor peace or proiect labor 6 month a�reement debannent (9� Other serious or compelline causes 6 month debarment 326 327 328 329 330 331 332 One vear Two vear Three vear debannent debarment debarxnent One year Two vear Three vear debannent debarment debarment One vear Two vear Three year debarment debarment debarment Three vear debannent One year debarment Oneyear debannent One vear debarment On�ear debarment Two vear Three vear debarment debarment Three vear Three vear debannent debarment Two vear Three vear debannent debarment Two veaz Three vear debarment debarment (bl Violations occurrin� after the date o�the notice o,�hearing Violations occutriug after the date of the notice of hearing that are brou¢ht to the attention of the Denartmen�rior to the hearine date before an administrative law iudee (or before the council in an uncontested facts heazin�Lay be added to the notice(sl bv stiuulation if the person or particinant admits to the facts and shall in that case be treated as thouuh nart of the "1 st Appearance." In all other cases violations occurrinQ after the date of the formal notice of hearin¢ shall be dealt with as a"2nd Apnearance" before the council The same procedures shall aUplv to a second third or fourth appearance before the council � �' i 333 (c Subsequent appearances. Upon a second, third or fourth appearance before the council bv a varticulaz 334 person or varticioant, the council shall unpose the presumptive nenalty for the violation or violations 335 givin¢ rise to the subsequent avoearance without re¢azd to the narticulaz violation or violations that were 336 the subject of the first or prior appearance. 337 (d) Computation oftime. 338 jl�a�erson, participant or affiliate appears before the council for anv violation where that violation has 339 occurred within two (2) vears after the first appearance of the same person, particinant or affiliate for a 340 violation listed in paza�'aph (al above, the current anpearance shall be treated as a second appearance for 341 the pu�ose of determinine the presumntivepenalty. 342 j2 If a person, particinant or affiliate has appeazed befare the council on two (� previous occasions for 343 violations and if said �erson, partici�ant or affiliate a ag in appeazs before the council for a violation and if 344 the current violation occurs within five (5lvears of the violation that ¢ave rise to the first appearance 345 before the council, then the current apnearance shall be treated as a third apuearance for the �urpose of 346 determinine rep sumptive roenaltv. 347 (3�a�erson participant or affiliate has appeared befare the council on three (3) nrevious occasions each 348 for violations listed and if said person, narticivant or affiliate a ag in apvears before the council for a 349 violarion, and if the current violation occurred within seven (71 vears of the violation that Qave rise to the 350 first apkearance then the current apnearance shall be treated as a fourth appearance for the nurpose of 351 determinine the Uresumntive nenalty. 352 �4 Any apnearance not covered bv subsections (11 (2) or (31 above shall be treated as a first appearance 353 In case of multiple violations in any appearance, the date to be used to measure whether two (2) five15� 354 seven (71 years have elapsed shall be the date of the violation last in time at the first appeazance and the 355 date of the violation first in time at an subsequent apnearance 356 Sec, 185.13 List of records of debarred contractors. 357 (1) List: The Department shall comnile, maintain and publish a current consolidated list of all debarred 358 contractors ensure that the citv does not solicit or accept bids from ne¢otiate with award contracts 359 to and approve or allow subcontracts with listed contractors Persons or participants with contracts 36Q awazded bv the city shall ensure that no subcontracts are issued to debarred contractors 361 (2) Records: The Department shall maintain records relatin� to each debarred contractor. These 362 records shall contain the name and address, cause for debarment and the date each cause occurred 363 anv limitations or deviations from the normal effect of the debannent and the effective and 364 termination dates of the debarment. 365 Sec.185.14 Additional Penalties. 366 Nothine in this section shall preclude the enforcement of �rovisions of this chanter in anv court of 367 com�etent iurisdiction b�anv aporopriate form of civil action includin� seekine to enjoin any continued 368 violation and seekine to comuel obedience bv issuing an order to correct violations �il : : 369 Sec. 185.15 Severabilitv. 370 If anv section or anXportion of a section of this ordinance shall be declared unconstitutional, invalid ar 371 inoperative, in whole or in uart, bv anv court of comnetent iurisdiction, the remainine sections and all 372 �ortions thereof not declared unconsritutional, invalid or inoperative shall remain in full force and 373 effect, and no such determination shall invalidate the remaining sections or nortions of sections of this 374 ordinance. 375 Section 2 376 This Ordinance shall take effect and be in force thirty (30) days following its passage, approval and 377 publication. Yeas Nays Absent Bosfrom Carter Harris Helgen Lantry Stark Thune Adopted by Council: Date Adoption Certified by Council Secretary By: Approved by Mayor: Date By: Requeste ep nt of: � N" � � By: Approve by the Office of Financial Services BY� b� Appr y City Attomey By: Approve by M or Su s' ouncil By: