§ 3-447. Liquidated damages.

(a)

All city and incentive agency contracts which contain goals shall contain a provision which provides for liquidated damages in the event the contractor or developer fails to achieve the MBE/WBE participation specified in the contractor utilization plan as finally approved by the director or the goals established pursuant to 3-431, whichever is lower, and fails to exert good faith efforts, as determined by the director or, in the case of incentive projects, the mutual determination of the director and the applicable incentive agency; except in the event the director and incentive agency fail to mutually agree, in which event, the determination of the applicable board determined by sections 3-449 and 3-451. The process for such determination shall be as described in sections 3-450 and 3-453.

(b)

The amount of liquidated damages for city contracts shall be in an amount as determined by the director. For incentive agency contracts, the director and incentive agency shall jointly agree on the amount of liquidated damages and may jointly agree to a remedy alternative to liquidated damages which promotes the goals of the city's MBE/WBE program. For incentive agency contracts, should the incentive agency and director fail to come to an agreement on the amount of the liquidated damages or a remedy alternative to liquidated damages, the applicable board's determination (pursuant to sections 3-449 and 3-451) of liquidated damages or other alternate remedy under the incentive agency contract shall be final. The process for such determination shall be as described in sections 3-450 and 3-453.

(c)

The liquidated damages may not exceed the difference between the monetary amount of the MBE/WBE participation finally approved, and as may be modified or waived, in accordance with this division, and the amount actually paid to certified MBEs and WBEs appearing on a CUP or modification approved by the director, unless waived pursuant to section 3-437. In determining the amount actually paid to qualified MBEs and WBEs, no credit shall be given for that portion of the MBE/WBE participation that was not approved in accordance with the provisions of section 3-435, provided however that the director, director and incentive agency, or board, as appropriate may allow credit if they determine, in their sole discretion, that the contractor or developer acted in good faith. Notwithstanding the foregoing, in the event the CUP anticipated that the contractor or developer would exceed the goals established prior to the submission of the CUP, the liquidated damages may not exceed the difference between the monetary amount of the MBE/WBE participation pursuant to such goals established prior to the submission of the CUP and the amount actually paid to MBEs and WBEs.

(Ord. No. 180535 , § 1, 10-25-18)