§ 2.12.010. Definitions.

The following terms, whenever used in this chapter, shall be construed as defined in this section:

"Affiliate" means entities and/or persons are affiliates of each other:

1.

Who is an assignee, successor, subsidiary of, or parent company of another person or contractor;

2.

Who has the same or similar management of the debarred corporate or other legal entity; or

3.

If, directly or indirectly, either one controls or has the power to control the other, or, a third person or entity controls or has the power to control both. Indicia of control include, but are not limited to:

a.

Interlocking management or ownership;

b.

Identity of interests among family members or relatives;

c.

Shared facilities and equipment, common use of employees or a business entity organized following the debarment or suspension pending debarment, or proposed debarment of a person which has the same or similar management, ownership or principal employees as the contactor that was debarred or suspended pending debarment;

d.

The debarred person or entity created after debarment or suspension pending debarment which operates in a manner designed to evade the application or defeat the purpose of this chapter;

e.

Bankruptcy, dissolution, or reorganization of a contractor or entity which has the same or similar management, ownership, or principal employees as the, debarred; or

f.

Ineligible, or voluntarily excluded entity or person.

"Bid" means any response to a notice inviting firm, fixed and/or sealed bids or quotes, solicitation for or invitation to submit firm, fixed and/or sealed bids or similar communication by or on behalf of a contractor seeking to participate or receive a benefit, directly or indirectly, in or under a covered or related transaction.

"City Administrator" means the City Administrator of the City of Oakland, or an officer specifically designated by the City Administrator or by another City official in accord with the City Charter, to act for and carry out the City Administrator's duties.

"City" means the City of Oakland acting through its City Council, City Administrator or through any officer with powers delegated by the City Charter, City Council, City Administrator or as authorized by law.

"Benefits" means money or any other thing of value provided by or realized because of a contract with the City. A thing of value includes insurance or guarantees of any kind and designation as a City "local business enterprise" or "small local business enterprise."

"City contracting policies" means any policies of the City Council applicable to City contracts for goods and services, or to such contracts considered or awarded in connection with a covered or related transactions, including, but not limited to, City's prevailing wages, living wage, equal benefits, local and small local business enterprise, apprentice and local hire, nuclear free and nondiscrimination policies.

"Civil judgment" means a decision in a civil action at the trial or appellate level by any court of competent jurisdiction, whether entered by verdict, settlement, stipulation or otherwise creating a civil liability for the wrongful acts complained of.

"Consent decree" means a settlement between the City and a contractor whereby the contractor promises to refrain from certain acts or omissions.

"Contract" means any agreement to provide goods to, or perform services for or on behalf of, the City, or such contracts considered or awarded in connection with a covered or related transaction.

"Contractor" means any person, partnership, corporation, joint venture, company, vendor or other business entity who seeks to contract, submits a qualification statement, proposal, bid or quote or contracts directly or indirectly with the City for the purpose of providing goods or services to or for the City, or who seeks to or contracts to provide goods or services in connection with a covered or related transaction, including, without limitation, any contractor, subcontractor, consultant, sub-consultant or supplier at any tier. The term "contractor" shall include any responsible managing corporate officer who has personal involvement and/or responsibility in obtaining a contract with the City or in supervising and/or performing the work prescribed by the contract.

"Contracting officer" means the City employee responsible for administering the contract.

"Covered transaction" means application for or participation in a City contracting policy program, activity, contract or related transaction, regardless of type, amount or source of funding.

"Conviction" means a judgment or conviction of a criminal offense of a type which would give rise to debarment of the convicted party under the terms of this chapter by any court of competent jurisdiction at the trial or appellate level whether entered upon a verdict or a plea, and includes a conviction upon a plea of nolo contendere.

"Debarment" means an administrative action taken by the City that results in a contractor, and any affiliate of the contractor, being prohibited from bidding upon or being awarded a contract with the City and/or performing a contract in connection with covered or related transactions for a period of up to five years. A contractor and affiliate who has been determined by the City to be subject to such a prohibition is "debarred."

"Debarment Hearing Board" means the three-member board appointed by the City Administrator to hold hearings, take evidence and make determinations about debarment for the City. Members of the Board shall be unbiased, executive level persons and may be City or other public sector employees with subject matter expertise, but shall not be employees that participated in the complaint, investigation or decision to recommend debarment, or employees subject to the authority, direction or discretion of employees who participated in the decision to recommend debarment.

"Ex parte communication" means any communication with a member of the Debarment Hearing Board, other than by Board member's staff, which is direct, or indirect, oral or written, concerning the merits or procedures of any pending proceeding which is made by a party in the absence of any other party.

"Final notice of debarment" means a written notice under signature of the City Administrator to the affected person(s), contractor or affiliates of the debarment decision of the Debarment Hearing Board.

"Indictment" means indictment for a criminal offense. An information or other filing by the City charging a criminal offense shall be given the same effect as an indictment.

"Ineligible" means excluded from City contracting (and subcontracting, if appropriate) pursuant to statutory, or regulatory authority of the City.

"Notice of proposed debarment" means the written communication issued by the City Administrator and served on a contractor in accordance with Section 2.12.060, to notify a contractor of proposed debarment and initiate a debarment action. The City Administrator may issue a notice of proposed debarment against any contractor relative to any matter consistent with the grounds for debarment. Notice shall be considered to have been received by the contractor and any other related-party so served five days after being deposited in the US Mail, postage pre-paid, and addressed by the City to the contractor's or affiliates' last known address based on information provided by the contractor or affiliates.

"Participant" means any person who submits a bid or proposal for, enters into, or reasonably may be expected to enter into a contract or covered or related transaction. This term also includes any person who is legally authorized to act on behalf of or to commit a participant to a contract or in a covered or related transaction.

"Person" means any individual, corporation, partnership, association, member of a joint venture, unit of government or legal entity, for-profit or non-profit, however organized.

"Preponderance of the evidence" means proof by information that, compared with that opposing it, tends to the conclusion that the fact at issue is more probably true than not.

"Principal" means officer, director, owner, partner, key employee or other person with significant management or supervisory responsibilities for a contractor; a person who has a critical influence on or substantive control over a contractor's participation in a covered or related transaction, whether or not employed by the participant, contractor or any affiliate of a participant or contractor, the operations of which are so intertwined with the participant that the separate corporate identities may be disregarded.

"Proposal" means any response to a solicitation, application, request for proposal, invitation to submit a proposal or similar communication by or on behalf of a contractor seeking to participate or receive a benefit, directly or indirectly, in or under a covered or related transaction.

"Related transaction" means a transaction directly related to a covered transaction, which assists the participant in executing a covered transaction, regardless of the extent of the influence on or substantive control over the covered transaction by the person performing the related transaction. Related transactions include, but are not limited to, transactions of the participant with any of the following persons:

1.

Contractors (including direct subcontractors);

2.

Principal investigators;

3.

Loan officers;

4.

Staff appraisers and inspectors;

5.

Underwriters;

6.

Bonding companies;

7.

Appraisers and inspectors;

8.

Real estate agents and brokers;

9.

Management and marketing agents;

10.

Accountants, consultants, investment bankers, architects, engineers, attorneys and others in a business relationship with participants in connection with a covered transaction under an City contracting or agreement or activity;

11.

Vendors of materials and equipment in connection with an City contracting, agreement or activity;

12.

Closing agents;

13.

Turnkey developers of projects;

14.

Title companies;

15.

Escrow agents;

16.

Project owners;

17.

Employees or agents of any of the above.

"Respondent" means a person against whom a debarment action has been initiated.

"Suspend" or "suspension" means the temporary disqualification of a contractor from participating in covered or related transactions pending the completion of an investigation and any proceedings before a Debarment Hearing Board. A contractor so disqualified is "suspended."

"Voluntary exclusion" or "voluntarily excluded" means a status, assumed by a person, who is excluded from participating in covered and related transactions in accordance with the terms of a written settlement agreement with the City.

"Warning letter" means a written communication from the City to one or more persons concerning acts and omissions prohibited by this chapter.

(Ord. No. 12926, § 1, 5-5-2009)