[HISTORY: Adopted by the City Council of the City of Harrisburg 12-23-2003 by Ord. No.
36-2003. Amendments noted where applicable.]
A.
This plan was established to require and to assist developers who
will perform under its terms to act affirmatively to provide opportunities
for participation in development projects to members of certain racial
and ethnic minority groups, disadvantaged individuals and to women.
B.
This plan is meant to bring consistency and continuity to affirmative
action goals so that the development community will not be faced with
unpredictable or capricious requirements when contemplating projects
in the City.
C.
This plan is based on recognition that members of certain minority
groups, disadvantaged individuals and women long have been denied
equal opportunity. Even though such denial is now prohibited by law,
its legacy lives on. Minorities, disadvantaged individuals and women
attempting to compete for business opportunities and in the work force
face easily recognized de facto disadvantages planted deep in generations
of systematic exclusion. This is inherently unfair, and this plan
is intended to ameliorate such institutionalized inequality; it is
not intended to provide minorities, disadvantaged individuals and
women with advantages not already available under the system to other
classes of persons. This plan is intended to be narrowly tailored
to meet the particular requirements of this community.
A.
Adherence to this plan shall be a condition of any development project
in the City which involves any of the following:
(2)
Financial participation or assistance in an amount equal to
or in excess of $10,000 by the City, Harrisburg Redevelopment Authority
(hereinafter "HRA"), Harristown Development Corporation (hereinafter
"HDC"), The Harrisburg Authority (hereinafter "THA"), Harrisburg Downtown
Improvement District Authority (hereinafter "DID"), Harrisburg Housing
Authority (hereinafter "HHA"), Harrisburg Leasing Authority ("hereinafter
HLA"), or Harrisburg Parking Authority (hereinafter "HPA") using its
own funds or real property, or using funds obtained by or through
any of them from the United States government or the Commonwealth
of Pennsylvania or any agency or authority of either; or
(3)
Proceeds of bonds or loans for an amount equal to or in excess
of $10,000 for which the City, HRA, HDC, THA, DID, HHA, HLA or HPA
is issuer, borrower, or guarantor.
B.
A contract or agreement providing for any of the above transactions,
and to which any of the above-listed entities is a party, is referred
to in this plan as a "development agreement."
A.
The City, HRA, THA, HPA, DID, HHA, HLA, and HDC are referred to in
this plan as the " cooperating parties."
B.
While not yet a signatory to this plan, it is the hope of the City
Council of the City of Harrisburg that the Harrisburg City School
District will choose to become a signatory in the near future, in
which event it will become a cooperating party.
C.
A cooperating party that enters into a development agreement with
a developer is referred to for purposes of administering this plan
as the "managing cooperating party."
D.
When more than one cooperating party enters into a single development
agreement, or when a project involves two or more development agreements
entered into by more than one cooperating party, the development agreement
or agreements shall be written so that contractual responsibility
for the provisions of this plan lies with a single managing cooperating
party.
E.
The managing cooperating party shall be determined as follows:
(1)
If the development agreement is a redevelopment contract and
the project does not also involve a development agreement with the
City, HRA shall be the managing cooperating party.
(2)
If a project involves a development agreement with the City,
irrespective of whether it also involves a development agreement with
any other cooperating party, the City shall be the managing cooperating
party.
(3)
If a project involves a development agreement with HDC but with
no other cooperating party, HDC shall be the managing cooperating
party.
(4)
If a project involves a development agreement with THA but with
no other cooperating party, THA shall be the managing cooperating
party.
(5)
If a project involves a development agreement with HPA but with
no other cooperating party, HPA shall be the managing cooperating
party.
As used in this chapter, unless otherwise expressly stated or
clearly indicated by the context, the following terms shall have the
meanings indicated:
Any type of written agreement, regardless of what it may
be called, for the procurement of supplies, services or construction.
Any written alteration of specifications, delivery point,
rate of delivery, period of performance, price, quantity or other
provisions of any contract accomplished by mutual action of the parties
to the contract.
Any person or entity that has furnished or seeks to furnish
supplies, services or construction under contract with an agency or
with an individual or entity under contract with an agency.
As used in the definitions of "disadvantaged business enterprise,"
"minority business enterprise" and "woman business enterprise," means
having and exercising on a regular basis the power to make policy
decisions for the entity.
Any redevelopment contract or any agreement involving financial participation or assistance as set forth in § 2-903.3 to which any of the cooperating parties is a party with a developer with respect to a project subject to this plan.
A physical improvement project, sponsored by one of the cooperating parties, which involves assistance specified in § 2-903.3 above. Examples include but are not limited to office buildings, residential townhouses, storage facilities, and retailing centers. "Development project" does not include normal usual procurement activities conducted by one of the cooperating parties in the normal course of its operations. Examples of procurement not covered by this plan include but are not limited to the purchase of computer equipment for use solely by one of the cooperating parties, purchase of supplies, maintenance contracts, purchase of vehicles, street repaving and other conventional public works projects.
A person who:
A for-profit entity, at least 51% of which is owned, controlled,
and operated by one or more persons whose economic growth and development
have been restricted based on social and economic bias or is at least
51% owned, controlled and operated by one or more disabled individuals.
Any person who is disabled as defined in "disabled individual"
herein or whose economic growth and development have been restricted
based upon social and economic bias.
A for-profit entity, at least 51% of which is owned, controlled,
and operated by one or more minorities.
A member or members, of either sex, of the racial or ethnic
groups commonly recognized as African Americans, Hispanic Americans,
Native Americans, Puerto Ricans, Asian-Pacific Americans, or Asian-Indian
Americans, who are regarded as such by the community of which they
claim to be a part, and any other groups or persons required to be
included by a federal law or regulation applicable to a particular
project.
As used in the definitions of "disadvantaged business enterprise,"
"minority business enterprise" and "woman business enterprise," means
being actively involved in the day-to-day management of the entity.
As used in the definitions of "disadvantaged business enterprise,"
"minority business enterprise" and "woman business enterprise," means
being entitled to profits and losses equal to the percentage of such
ownership interest.
Any agreement between two or more competent persons to place
their money, effects, labor and/or skill in lawful commerce or business,
with the understanding that there shall be a proportional sharing
of the profits and losses between them. For the purposes of this plan,
"partnership agreement" shall include syndicates, pools, groups, joint
ventures, limited partnerships, tiered partnerships, and all forms
of corporations.
A for-profit entity at least 51% of which is owned, controlled,
and operated by one or more women of any racial or ethnic background.
A.
The Council of the City of Harrisburg shall establish and maintain
an Advisory Committee which shall have the responsibilities set forth
in this plan. No cooperating party shall enter into any development
agreement without prior approval by majority vote of the Advisory
Committee of all of the affirmative action and minority, disadvantaged
individuals and women participation provisions of such agreement,
such provisions to be submitted in writing to the members of the Advisory
Committee at least five business days before any meeting at which
such approval is sought. Wherever in this plan there is provision
for recommendation, comment or approval by the Advisory Committee,
such recommendation, comment or approval shall be by majority vote
of the Advisory Committee, and such recommendation, comment or approval
shall be binding upon the developer, as hereinafter defined, and upon
all of the cooperating parties.
B.
The Advisory Committee shall have at least seven, but no more than
nine, members chosen from a pool of businesspeople who will provide
a representative cross section of the City's businesses.
C.
The Advisory Committee by majority vote may invite a representative
of any bona fide organization with an interest in a particular development
project under consideration to serve on the Advisory Committee with
respect to that particular project. The representative may not be
from any developer who competed for designation on the project in
question nor may the representative be a contractor or professional
who has competed for business on the project in question.
D.
The Director of the Mayor's Office of Equal Economic Opportunity
(MOEEO) (or any successor City department) or his or her designee
shall be the Coordinator of the Advisory Committee and in this capacity
will carry out the duties provided for in this plan. Staff required
to assist in carrying out such duties shall be provided by MOEEO.
[Amended 6-8-2010 by Ord.
No. 5-2010]
E.
The Advisory Committee shall establish a schedule of regular meetings
which shall be at least quarterly. Special meetings shall be held
as required elsewhere in this plan and at the request of the Coordinator
or of any member. When possible, no meeting of the Advisory Committee
shall be held without at least five days' written notice to each member
and interested parties.
F.
The Coordinator shall maintain through MOEEO a register of qualified
MBEs, DBEs and WBEs interested in and able to do business in the City.
Any developer acting pursuant to this plan shall be entitled to the
use of the register which shall be maintained in a professional manner
so that it is current and reliable at all times. The cooperating parties
shall encourage all MBEs, WBEs, and DBEs to be certified by the City.
[Amended 6-8-2010 by Ord.
No. 5-2010]
G.
The Coordinator shall maintain a registry of all additional parties
interested in affirmative action issues related to the agreement.
The Coordinator shall distribute notices of Advisory Committee meetings
to all additional parties so registered with the Coordinator.
H.
The Coordinator shall prepare an annual report on this agreement.
Said report shall describe the affirmative action results of projects
covered by this agreement. The annual reports shall be approved by
the Advisory Committee prior to distribution. The annual report shall
be due by January 31 of each year for the previous calendar year,
with the first annual report due by January 31, 2004. The report shall
then be distributed to the Mayor of the City of Harrisburg, Harrisburg
City Council and all signatories.
Pursuant to the purposes of this plan, the consensus of the
community resulted in agreement on the establishment of the following
goals for participation by minorities, disadvantaged individuals and
women in projects subject to this plan:
A.
The developer entity. At least 25% (of which up to 5% may be a nonminority
woman or women or disadvantaged individuals) of the interest in the
developer entity, whether a corporation or the general partners in
a joint venture, but not including the limited partners in a limited
partnership (hereinafter the "developer"), shall be owned by a minority
or minorities or a MBE or MBEs or DBE or DBEs or WBE or WBEs. The
Advisory Committee may recommend exceptions to the twenty-five-percent
minimum goal of this provision when it believes such exception is
in the best interests of the City and its residents or when the developer
has been unable to secure participation of minorities, disadvantaged
individuals or women, or in the instance of an exclusively family-held
developer entity whose principals are solely persons related by blood
or marriage. No exception shall be granted unless first requested
by the developer entity.
B.
Equity participation. If the financing of a project includes investment
by limited partners or other investor equity, the developer or its
syndicator shall act as provided hereunder to offer opportunities
to minorities, women or individuals with a disability or disadvantaged
individuals for participation in at least 25% of such equity formation.
The Advisory Committee may recommend exceptions to the twenty-five-percent
minimum goal of this provision when it believes such exception is
in the best interests of the City and its residents or when the developer
entity has been unable to secure such equity participation of minority
investors.
C.
Professional services. The developer shall, as provided hereunder,
contract with minorities or a MBE or MBEs for at least 15%, and with
disadvantaged individuals or a DBE or DBEs or women or a WBE or WBEs
for at least 5%, of the total dollar value of professional services
associated with the project. "Professional services" shall include
but not be limited to design, engineering, legal, accounting, consulting,
and insurance brokering services. The Advisory Committee may recommend
exceptions to the fifteen-percent and five-percent minimum goals of
this provision if it believes such exceptions are in the best interests
of the City and its residents.
D.
Construction work force. The developer shall act with its general contractor or construction manager, as provided hereunder, so that, of the total construction jobs for the project, at least 25% will be filled by minorities and at least 5% by women or disadvantaged individuals. Notwithstanding the above, the twenty-five-percent goal may be reduced to 15% if the entire 15% consists of residents of the City of Harrisburg. The Advisory Committee may recommend exceptions to this Subsection D based on opportunities being created for minorities, disadvantaged individuals or women in any apprenticeship program registered with the Pennsylvania Department of Labor and Industry.
E.
Permanent jobs. The developer shall act as provided hereunder so
that of the permanent (i.e., nonconstruction) new jobs resulting from
the project and under the control of a project operator or manager
performing under a contract with the developer, initially and for
at least the first five years of the project's operation, at
least 50% of such new jobs will be filled by residents of the City,
1/2 of said 50% to be minorities.
F.
Construction contracts. The developer shall act as provided for hereunder
so that, of the total applicable dollar value of construction contracts
for the projects, as defined hereunder, at least 25% will be awarded
to MBEs and at least 5% to WBEs or DBEs. Notwithstanding the above,
the twenty-five-percent goal may be reduced to 15% if the entire 15%
is comprised of businesses located within the corporate boundaries
of the City of Harrisburg.
A.
This plan shall be made a part of any development agreement and attached
thereto as an exhibit.
B.
Any development agreement shall include provisions that performance
by the developer under this plan is of the essence of such development
agreement.
C.
Any development agreement shall require the developer to include
this plan within the terms and conditions of the developer's
contract with any general contractor (or with each trade contractor
if there is no general contractor) and with any construction manager.
Such contracts entered into by a developer shall require the contractor
or construction manager to carry out the provisions of this plan with
respect to construction contracts and the construction work force,
and such contractors shall give the developer the right, upon five
days' notice, to stop the work of any contractor, subcontractor, or
construction manager who is in violation of the provisions of this
plan. With respect to the construction work force provisions herein,
each contractor of the developer shall be required to legally bind
each subcontractor to perform hereunder.
D.
Any development agreement shall include a provision under which the
developer and the cooperating party agree that, in the event of a
default by the developer or a default by its contractor, subcontractor
or construction manager with respect to the construction work force
provisions of this plan, the cooperating party will not have an adequate
remedy at law, and the cooperating party specifically shall have the
right to seek injunctive relief in the event of such default. Notwithstanding
the above, if the cooperating party believes the developer to be in
violation of any of the provisions herein, a penalty of up to $600,
plus all costs, shall be assessed against the developer for each violation.
Each day that a violation continues shall be deemed a separate violation.
E.
Within two business days of receipt of the development agreement,
the Coordinator will provide copies thereof to the members of the
Advisory Committee, together with written notice of a meeting of the
Committee for the purpose of reviewing the development agreement.
Notice of said meeting shall be given also to the developer and its
contractor or construction manager. The meeting shall be no earlier
than five business days and no later than 10 business days from the
time of the notice.[1]
F.
Following the meeting provided for in the above Subsection E and any subsequent meetings the Advisory Committee believes advisable, but in any event no later than 20 days before the date the developer has set in its notice for the commencement of development, the Coordinator will provide the developer and its contractor or construction manager with written comments of the Advisory Committee with respect to the adequacy and feasibility of the agreement. A copy of said written comments shall be sent by the Coordinator to the managing cooperating party. The developer shall provide to the Coordinator a written response to such comments within five business days of receipt of such comments, and the Coordinator shall promptly deliver copies of such response to the members of the Advisory Committee and to the managing cooperating party.
G.
If at any time after the meeting provided for in the above Subsection E and prior to the substantial completion of development the Advisory Committee believes that the agreement is infeasible or that it is not likely to result in the developer successfully meeting the goals set forth herein or that implementation of the agreement is inadequate, the Committee may direct the Coordinator to arrange for a public hearing with respect thereto. Such public hearing is to be held in the Rev. Dr. Martin L. King, Jr., City Government Center after at least five days' notice concurrent with five days' written notice to the developer, whose representative along with that of the contractor or construction manager shall be provided an opportunity at such public hearing to explain the developer's position, including any changes which the developer may be prepared to make as a result of such public hearing.
A.
No cooperating party shall enter into any development agreement with
a developer, or into any agreement requiring that it enter into a
development agreement with a developer, until such developer provides
a copy of an executed and legally binding partnership agreement (or
other appropriate written evidence if the developer is other than
a partnership) demonstrating that an interest of at least 25% (of
which up to 5% may be a nonminority woman or women or a disadvantaged
person) of the developer is owned by a minority or minorities or MBE
or MBEs or disadvantaged person or disadvantaged persons or DBE or
DBEs or woman or women or WBE or WBEs. Such partnership agreement
or other written evidence shall contain a provision that no prior
or subsequent agreement which required the minority to sell, transfer,
or otherwise relinquish its interest shall be enforceable to the extent
such would diminish the minority's percentage interest in the
developer. Notwithstanding the above, any cooperating party which
either utilizes a business located within the corporate limits of
the City of Harrisburg or obtains its financing through individuals
located within the corporate limits of the City of Harrisburg may
apply to the Advisory Committee for an exemption from these requirements.
Such exemption shall be granted unless the Advisory Committee believes
such exemption is not in the best interests of the City and its residents.[1]
B.
In calculating the percentage of ownership interest owned by MBEs,
DBEs and WBEs, the dollar volume of such interest of MBEs, DBEs and
WBEs with permanent places of business within the corporate boundaries
of the City of Harrisburg shall be counted at 125% of the actual value
of such interest.
C.
Within two business days of receipt of the partnership agreement,
if any, the Coordinator will provide copies thereof to the members
of the Advisory Committee, together with written notice of a meeting
of the Committee for the purpose of reviewing the partnership agreement.
Notice of said meeting shall be given also to the developer and its
contractor or construction manager. The meeting shall be no earlier
than five business days and no later then 10 business days from the
time of the notice.
D.
Following the meeting provided for in the above Subsection C and any subsequent meetings the Advisory Committee believes advisable, but in any event no later than 20 days before the date the developer has provided in its notice for the commencement of development, the Coordinator will provide the developer and its contractor or construction manager with written comments of the Advisory Committee with respect to the adequacy and feasibility of the partnership agreement. A copy of said written comments shall be sent by the Coordinator to the managing cooperating party. The developer shall provide to the Coordinator a written response to such comments within five business days of receipt of such comments, and the Coordinator shall promptly deliver copies of such response to the members of the Advisory Committee and to the managing cooperating party.
E.
If at any time after the meeting provided for in the above Subsection C and prior to the substantial completion of development the Advisory Committee believes that the partnership agreement is infeasible or that it is not likely to result in the developer successfully meeting the goals set forth herein or that implementation of the partnership agreement is inadequate, the Committee may direct the Coordinator to arrange for a public hearing with respect thereto. Such public hearing is to be held in the Rev. Dr. Martin L. King, Jr., City Government Center after at least five days' notice concurrent with five days' written notice to the developer, whose representative along with that of the contractor or construction manager shall be provided an opportunity at such public hearing to explain the developer's position, including any changes which the developer may be prepared to make as a result of such public hearing.[2]
A.
If a developer has arranged for equity capital formation for a project
prior to entering into a development agreement with any cooperating
party, said cooperating party shall not execute the development agreement
before reviewing written evidence that the developer or its syndicator
reasonably has complied, to the satisfaction of said cooperating party,
with the obligation under this plan to act affirmatively to offer
at least 25% of such equity capital participation to minorities or
a MBE or MBEs or disadvantaged person or disadvantaged persons or
a DBE or DBEs or woman or women or a WBE or WBEs.
B.
If a developer proposes to arrange for equity capital formation for
a project after entering into a development agreement with any cooperating
party, no cooperating party shall approve such development agreement
before reviewing a written program of the developer or its syndicator,
which program, to the satisfaction of said cooperating party, reasonably
shall comply with the obligation under this plan to act affirmatively
to offer at least 25% of such equity capital participation to minorities.
C.
In the event equity capital formation is to occur following the execution
of a development agreement, such agreement shall require that the
developer submit a written report to the cooperating party of the
results of the developer's equity participation affirmative action
program.
D.
In calculating the amount of equity capital participation of MBEs,
WBEs and DBEs, the dollar volume of such actual participation of MBEs,
WBEs and DBEs with permanent places of business in the City of Harrisburg
shall be counted at 125% of the actual value of such participation.
E.
Within two business days of receipt of the equity capital participation
plan, the Coordinator will provide copies thereof to the members of
the Advisory Committee, together with written notice of a meeting
of the Committee for the purpose of reviewing the equity capital participation
plan. Notice of said meeting shall be given also to the developer
and its contractor or construction manager. The meeting shall be no
earlier than five business days and no later then 10 business days
from the time of the notice.
F.
Following the meeting provided for in the above Subsection E and any subsequent meetings the Advisory Committee believes advisable, but in any event no later than 20 days before the date the developer has provided in its notice for the commencement of development, the Coordinator will provide the developer and its contractor or construction manager with written comments of the Advisory Committee with respect to the adequacy and feasibility of the equity capital participation plan. A copy of said written comments shall be sent by the Coordinator to the managing cooperating party. The developer shall provide to the Coordinator a written response to such comments within five business days of receipt of such comments, and the Coordinator shall promptly deliver copies of such response to the members of the Advisory Committee and to the managing cooperating party.
G.
If at any time after the meeting provided in the above Subsection E and prior to the substantial completion of development the Advisory Committee believes that the equity capital participation plan is infeasible or that it is not likely to result in the developer successfully meeting the goals set forth herein or that implementation of the equity capital participation plan is inadequate, the Committee may direct the Coordinator to arrange for a public hearing with respect thereto. Such public hearing is to be held in the Rev. Dr. Martin L. King, Jr., City Government Center after at least five days' notice concurrent with five days' written notice to the developer, whose representative along with that of the contractor or construction manager shall be provided an opportunity at such public hearing to explain the developer's position, including any changes which the developer may be prepared to make as a result of such public hearing.
A.
Prior to entering into a development agreement, any cooperating party
shall require the developer to submit a written schedule with respect
to professional services associated with the project.
B.
Such schedule of professional services shall include:
(1)
A list of professional services expected to be used for the
project, with the estimated dollar value of each such service.
(2)
Disclosure of professionals who already have performed services
for the project or who have been engaged to do so.
(3)
The developer's program, shown by type and dollar value,
to meet the affirmative action goals for professional services established
in this plan.
C.
The development agreement shall include a requirement that the developer
submit to the cooperating party a written report of the results of
the developer's affirmative action program with respect to professional
services.
D.
In calculating the percentage of contract value awarded to MBEs,
WBEs and DBEs, the dollar volume of such contracts awarded to MBEs,
DBEs and WBEs with permanent places of business in the City of Harrisburg
shall be counted as 125% of the actual value of such contracts.
E.
Within two business days of receipt of the schedule of professional
services, the Coordinator will provide copies thereof to the members
of the Advisory Committee, together with written notice of a meeting
of the Committee for the purpose of reviewing the schedule of professional
services. Notice of said meeting shall be given also to the developer
and its contractor or construction manager. The meeting shall be no
earlier than five business days and no later then 10 business days
from the time of the notice.
F.
Following the meeting provided in the above Subsection E and any subsequent meetings the Advisory Committee believes advisable, but in any event no later than 20 days before the date the developer has provided in its notice for the commencement of the professional services, the Coordinator will provide the developer and its contractor or construction manager with written comments of the Advisory Committee with respect to the adequacy and feasibility of the schedule of professional services. A copy of said written comments shall be sent by the Coordinator to the managing cooperating party. The developer shall provide to the Coordinator a written response to such comments within five business days of receipt of such comments, and the Coordinator shall promptly deliver copies of such response to the members of the Advisory Committee and to the managing cooperating party.
G.
If at any time after the meeting provided in the above Subsection E and prior to the substantial completion of the professional services the Advisory Committee believes that the schedule of professional services is infeasible or that it is not likely to result in the developer successfully meeting the goals set forth herein or that implementation of the schedule of professional services is inadequate, the Committee may direct the Coordinator to arrange for a public hearing with respect thereto. Such public hearing is to be held in the Rev. Dr. Martin L. King, Jr., City Government Center after at least five days' notice concurrent with five days' written notice to the developer, whose representative along with that of the contractor or construction manager shall be provided an opportunity at such public hearing to explain the developer's position, including any changes which the developer may be prepared to make as a result of such public hearing.
A.
At least 30 days prior to the commencement of construction, the developer
will submit in writing to the Coordinator the developer's affirmative
action program with respect to the construction work force (the "work
force program").
B.
The work force program shall set forth in detail estimated construction
work force requirements for the project and shall include the following:
(1)
The date on which the developer intends to commence construction.
(2)
A schedule of phases from the commencement date of construction
to the issuance by the architect of a certificate of substantial completion
(the "construction period") in which is estimated the number of journeymen
and apprentice jobs to be required in each trade for such phases.
(3)
An estimate of the number of minorities, disadvantaged individuals
and women to be employed as journeymen and apprentices in each trade
for such phases.
(4)
Calculations demonstrating that the proposed jobs for minorities,
disadvantaged individuals and women can reasonably be expected to
amount to 25% of the project's total person weeks of work during
the construction period.
(5)
An explanation of the efforts and arrangements which have been
and will be made by the developer's contractor or construction
manager to assure the availability of minorities, disadvantaged individuals
and women to meet the job estimates for each trade.
(6)
The form of the weekly or biweekly work force report which the
developer will submit during the construction period as provided for
below.
C.
In calculating the percentage of jobs to be filled by minorities,
disadvantaged individuals and women, the twenty-five-percent requirement
may be reduced to 15% if the entire 15% consists of residents of the
City of Harrisburg.
D.
Within two business days of receipt of the developer's work
force program, the Coordinator will provide copies thereof to the
members of the Advisory Committee, together with written notice of
a meeting of the Committee for the purpose of reviewing the work force
program. Notice of said meeting shall be given also to the developer
and its contractor or construction manager. The meeting shall be no
earlier than five business days and no later then 10 business days
from the time of the notice.
E.
Following the meeting provided for in the above Subsection D and any subsequent meetings the Advisory Committee believes advisable, but in any event no later than 20 days before the date the developer has set in its notice for the commencement of construction, the Coordinator will provide the developer and its contractor or construction manager with written comments of the Advisory Committee with respect to the adequacy and feasibility of the work force program. A copy of said written comments shall be sent by the Coordinator to the managing cooperating party. The developer shall provide to the Coordinator a written response to such comments within five business days of receipt of such comments, and the Coordinator shall promptly deliver copies of such response to the members of the Advisory Committee and to the managing cooperating party.
F.
If at any time after the meeting provided in the above Subsection D and prior to the substantial completion of construction the Advisory Committee believes that the work force program is infeasible or that it is not likely to result in the developer successfully meeting the goals set forth herein or that implementation of the work force program is inadequate, the Committee may direct the Coordinator to arrange for a public hearing with respect thereto. Such public hearing is to be held in the Rev. Dr. Martin L. King, Jr., City Government Center after at least five days' notice concurrent with five days' written notice to the developer, whose representative along with that of the contractor or construction manager shall be provided an opportunity at such public hearing to explain the developer's position, including any changes which the developer may be prepared to make as a result of such public hearing.
G.
Each Tuesday or every alternating Tuesday (or a Wednesday following
a Tuesday if such Tuesday is a legal holiday) during the construction
period, the developer's contractor or construction manager shall
submit to the Coordinator a written report concerning the work force
for the previous calendar week or weeks (the "weekly or biweekly work
force report") which shall clearly set forth:
(1)
The name of each contractor and subcontractor working at the
project site during the week or weeks;
(2)
The number of journeymen by trade and the number of apprentices
by trade employed at the project by each contractor and subcontractor;
(3)
The number of those enumerated in the above Subsection G(2) who are minorities, the number who are disadvantaged and the number who are women;
(5)
Cumulative totals for the construction period to date of the
number of journeymen and apprentice person weeks by trade and the
number and percentage thereof which have been filled by minorities,
disabled disadvantaged individuals and women, respectively; and
(6)
If appropriate, an explanation of how the work force program
is being amended so it reasonably can be expected that minorities,
disadvantaged individuals and women by the end of the construction
period will have been utilized for 25% and 5%, respectively, of the
total person weeks of work.
H.
The Coordinator or representative(s) of the Coordinator shall have
the right throughout the construction period to inspect the project
during working hours for the purpose of monitoring the work force
program.
I.
During the construction period the Coordinator shall keep the members
of the Advisory Committee and the cooperating party informed with
respect to compliance with the work force program.
J.
During the construction period and for a period of one year thereafter,
the Advisory Committee and the cooperating party each shall have the
right upon reasonable notice to audit the payroll records of any contractor,
subcontractor, or construction manager for the purpose of determining
compliance with the work force program, and such contractor, subcontractor,
or construction manager shall cooperate with such audit.
K.
If a response to a developer or its contractor is required hereunder
from the Coordinator, the Advisory Committee, or a managing cooperating
party and such response is not made by an established deadline, such
failure to respond will be deemed approval.
A.
At least 30 days before the developer or a project operator or manager
performing under an agreement with the developer begins to accept
applications for employment or employs any person for the permanent
(i.e., nonconstruction) work force for the project, the developer
shall submit in writing to the managing cooperating party the developer's
affirmative action program with respect to permanent jobs (the "permanent
jobs program").
B.
The permanent jobs program shall set forth in detail the following:
(1)
The estimated number, type, and pay scale of the permanent jobs
to be filled during the first five years of the project's operation
(the operating period); and
(2)
The affirmative action procedures and timetable which will be
utilized with respect to advertising, recruitment, interviewing, and
training so that it can reasonably be expected that a minimum of 50%
of the new permanent jobs at all levels of the operation will be filled
by residents of the City of Harrisburg and that a minimum of 1/2 thereof
will be minorities, disadvantaged individuals and/or women.
C.
Within 12 days of receipt of the permanent jobs program, the managing
cooperating party shall provide the developer with written comments
with respect to the adequacy and feasibility thereof. The developer
shall respond in writing to the cooperating party within five business
days after receipt of such comments.
D.
If at any time after that provided in Subsection C for the developer's response and prior to the expiration of the operating period the managing cooperating party believes that the permanent jobs program is infeasible or it is not likely to result in the developer successfully meeting the goals set forth herein or that the implementation of the permanent jobs program is inadequate, the managing cooperating party may submit a report to the Coordinator stating such and the reasons the managing cooperating party believes warrant such a finding. Within two business days of receipt of the report, the Coordinator will provide copies thereof to the members of the Advisory Committee. The Advisory Committee, after with written notice to the managing cooperating party and the developer and its contractor, shall conduct a meeting of the Committee for the purpose of reviewing the permanent jobs program. The meeting shall be no earlier than five business days and no later then 10 business days from the time of the notice.
E.
Following the meeting provided in the above Subsection D and any subsequent meetings the Advisory Committee believes advisable , but in any event no later than 20 days after the final meeting, the Coordinator will provide the developer and its contractor with written comments of the Advisory Committee with respect to the adequacy and feasibility of the permanent jobs program. A copy of said written comments shall be sent by the Coordinator to the managing cooperating party. The developer shall provide to the Coordinator a written response to such comments within five business days of receipt of such comments, and the Coordinator shall promptly deliver copies of such response to the members of the Advisory Committee and to the managing cooperating party.[1]
F.
If at any time after the meeting provided for in the above Subsection D the Advisory Committee believes that the permanent jobs program is infeasible or that it is not likely to result in the developer successfully meeting the goals set forth herein or that implementation of the permanent jobs program is inadequate, the Committee may direct the Coordinator to arrange for a public hearing with respect thereto. Such public hearing is to be held in the Rev. Dr. Martin L. King, Jr., City Government Center after at least five days' public notice concurrent with five days' written notice to the developer, whose representatives along with those of the developer's project operator or manager shall be provided an opportunity at such public hearing to explain their position.
G.
Within 10 days of the occupancy of the project and semiannually by
January 30 and July 30 during the operating period, the developer
or the project operator or manager on behalf of the developer shall
submit to the managing cooperating party a written report of the following:
(1)
The number of employees by job type and pay scale utilized at
the project by the developer and by any project operator or manager
performing under a contract with the developer.
(2)
The number of those enumerated in Subsection G(1) above who are residents of the City and the number who are minorities, disadvantaged individuals and/or women.
(3)
To the extent that at least 50% of the members of the work force
are not residents of the City, or 1/2 of such are not minorities,
disadvantaged individuals and/or women, a detailed explanation of
the actions which will be taken to bring the work force into compliance
with said goals.
H.
During the operating period and for a period of one year thereafter
the cooperating party shall have the right upon reasonable notice
to audit the payroll records of the developer or of any project operator
or manager performing under contract with the developer for the purpose
of determining compliance with the City resident and minority, disadvantaged
individuals and/or women employment goals hereunder, and the developer
and any such operator or manager shall cooperate with such audit.
A.
At least 30 days prior to the issuance of any bidding documents (or,
as applicable, 30 days prior to issuance of letters of intent or commitment
to any contractor or subcontractor), the developer shall submit in
writing to the Coordinator the developer's affirmative action
program with respect to construction contracts (the "construction
contract program").
B.
The construction contract program shall set forth the following in
detail:
(1)
The estimated dates on which the developer expects each package
of bidding documents to be issued and the estimated dates on which
it expects contracts for each trade package to be awarded.
(2)
The estimated dollar value of each trade package and the resulting
estimated total construction cost of the project.
(3)
A detailed calculation of the estimated total applicable dollar
value of construction contracts, which shall be the estimated total
construction cost of the project less the estimated value of any contracts
with respect to elevators and escalators.
(4)
The estimated dollar value of any portion of any trade packages,
whether contracts or subcontracts or parts thereof, expected to be
awarded to MBEs, DBEs and WBEs, respectively, so that the estimated
total value of what is expected to be awarded to MBEs, DBEs and WBEs
equals no less than 25% and no less than 5%, respectively, of the
estimated total applicable value of construction contracts.
(5)
A detailed plan, including but not necessarily limited to methods
of advertising, bidder identification and pre-qualification assistance,
and proposed use of set asides, partial set asides and sub-subcontracts,
under which the developer and its contractor or construction manager
intends to act affirmatively to meet the goals established herein
for MBE, DBE and WBE construction contract participation. The detailed
plan is to be such that it reasonably can be expected to result in
at least the minimum goals being met.
C.
Within two business days of receipt of the developer's construction
contract program, the Coordinator will provide copies thereof to the
members of the Advisory Committee, together with written notice of
a meeting of the Committee for the purpose of reviewing the construction
contract program and the work force program. Notice of said meeting
shall be given also to the developer and its contractor or construction
manager. The meeting shall be no earlier than five business days and
not later than 10 business days from the time of the notice.
D.
Following the meeting provided for in Subsection C and any subsequent meetings the Advisory Committee believes advisable, but in any event no later than 20 days before the date the developer has set in its notice for the issuance of the first bidding documents, the Coordinator shall provide the developer and its contractor or construction manager with the written comments of the Advisory Committee regarding the adequacy and feasibility of the construction contract program. A copy of said written comments will be sent by the Coordinator to the managing cooperating party. The developer shall provide to the Coordinator a written response to such comments within five business days of receipt of such comments, and the Coordinator shall promptly deliver copies of such response to the members of the Advisory Committee and to the managing cooperating party.
E.
If at any time after the meeting provided for in Subsection C and prior to the end of the bidding and contract award period the Advisory Committee believes that the construction contract program is infeasible or is not likely to result in successfully meeting the goals set forth herein or that implementation of the construction contract program is inadequate, the Committee may direct the Coordinator to arrange for a public hearing with respect thereto, such public hearing to be held in the Rev. Dr. Martin L. King, Jr., City Government Center after at least five days' public notice concurrent with five days' written notice to the developer, whose representatives along with those of the contractor or construction manager shall be provided an opportunity to explain at such public hearing their position, including any changes which they may be prepared to make.
F.
Each Tuesday (or a Wednesday following a Tuesday if such Tuesday
is a legal holiday) during the contract award period the developer's
contractor or construction manager on behalf of the developer shall
submit to the Coordinator a written report of contracts awarded (and
bidding documents issued, if any) during the previous week. Included
in each such report shall be:
(1)
The names of all contractors and subcontractors who were awarded
contracts during the week and the value of each contract awarded.
(2)
Identification of those enumerated in the above Subsection F(1) who are MBEs, those who are DBEs and those who are WBEs.
(3)
A comparison of the value of contracts awarded to minority,
disadvantaged and women business enterprises during the week with
what had been anticipated in the contract award program for those
trade packages.
(4)
Cumulative totals by dollar volume and percentage for the project
to date of the total applicable value of construction contracts and
of the total value of contracts awarded to MBEs and WBEs, respectively.
(5)
To the extent that the value of contracts awarded to date to
MBEs, DBEs and WBEs, respectively, is inconsistent with what had been
anticipated in the construction contract program, an explanation of
how the construction award program is being amended so it reasonably
can be expected that by the end of the bidding and construction period
the total value of contracts awarded to MBEs, DBEs and WBEs, respectively,
will be in compliance with the minimum goals hereunder.
(6)
Listing of all bidding document packages released during the
previous week and a list of all contractors and subcontractors to
whom they were released, including identification of all MBEs, DBEs
and WBEs included therein.
G.
During the contract award period the Coordinator shall keep the Advisory
Committee and the managing cooperating party informed of the monitoring
of the bidding and contract award activity.
H.
During the contract award period and for a period of one year after
completion of construction of the project the Advisory Committee and
the managing cooperating party each shall have the right upon reasonable
notice to audit the records of the developer and of any contractor,
subcontractor, or construction manager for the purpose of determining
compliance with the construction contract program, and the developer
and any such contractor, subcontractor, or construction manager shall
cooperate with such audit.
I.
In calculating the percentage of contract value for construction
awarded to MBEs, DBEs and WBEs, the dollar volume of such contracts
awarded to MBEs, DBEs and WBEs with permanent places of business in
the City of Harrisburg shall be counted at 125% of the actual value
of such contracts.
J.
In calculating the percentage of contract value for materials awarded
to MBEs, DBEs and WBEs, the dollar volume of contracts awarded to
MBEs, DBEs and WBEs suppliers shall be equal to a minimum of 5% of
the amount of the contract. A supplier is defined as a business which
delivers materials to the work site but does not supervise or employ
its own on-site labor to install the supplies delivered.
K.
If a response to a developer or its contractor is required hereunder
from the Coordinator, the Advisory Committee, or managing cooperating
party and such response is not made by an established deadline, such
failure to respond will be deemed approval.
This agreement may be amended or modified from time to time
upon agreement of all parties hereto; provided first, however, that
a public hearing is held and public notice is distributed to all interested
parties and the public hearing is advertised 30 days prior to any
effective date of such amendment or modification.
The intent of this agreement is to affirmatively address economic
opportunities for minorities, disadvantaged individuals and women.
Further, a specific goal of this agreement is to stimulate the startup
and expansion of minority, disadvantaged individuals and women-owned
business enterprises, particularly within the City. Nothing in this
agreement or its intent or goals shall grant to any person, business,
organization or entity the right or advantage to gain a monopoly over
minority or disadvantaged individuals or women-owned business activities
encouraged by this agreement. Further, nothing in this agreement should
be construed as encouraging or providing for any contracting or other
business activity involving minority or disadvantaged individuals
or women-owned businesses which would be anything less than cost and
quality competitive. Conversely, inherent in this agreement is the
expectation that developers and others whose projects are covered
by the provisions of this agreement shall meet both the letter and
the spirit of such affirmative action. In addition to the penalties
set forth in this agreement for intentional failure to comply, the
parties reserve the right to initiate appropriate investigation and
other actions, as provided under federal or other laws, when and if
it is determined that deliberate actions or omissions have occurred,
either related to a specific project covered by this agreement or
to identifiable general business practices, which have the intent
or effect of denying legitimate and equal opportunity for minority,
disadvantaged individuals and women-owned businesses to exist and
compete in the open business market.
