HomeMy WebLinkAboutLegislationCity of Miami
Legislation
Ordinance
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.cc rn
File Number: 08-00728
Final Action Date:
AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 18
OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, ENTITLED
"FINANCE," BY ADDING A NEW ARTICLE ENTITLED "COMMUNITY SMALL
BUSINESS ENTERPRISE ("CSBE"), COMMUNITY BUSINESS ENTERPRISE
("CBE"), AND/OR SMALL BUSINESS ENTERPRISE ("SBE") PROGRAM," TO SET
FORTH PURPOSE, DEFINITIONS, AND APPLICATION OF THE CSBE, CBE,
AND/OR SBE PROGRAM TO FORMAL COMPETITIVE SEALED BIDDING OR
COMPETITIVE NEGOTIATIONS/COMPETITIVE SEALED PROPOSALS
PROCESSES; CONTAINING A REPEALER CLAUSE, A SEVERABILITY CLAUSE
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, in March 30, 2005, the Office of the City Attorney issued a legal opinion citing, among
some of the court cases, City of Richmond v. J.A. Croson Company, 488 U.S. 46911989),
Engineering Contractors Association-v_ MetropofitairDadeCounty, 943 F. Supp 1546 (S.D. Fla. 1996),
Hershel! Gill Consulting Engineers, Inc. v. Miami -Dade County, 333 F. Supp. 2d 1305 (S.D. Fla., Aug.
24, 2004), as its basis prohibiting "race and gender based set -aside" programs and letting "goals" in
the City of Miami and the elimination of the Minority Women Business Enterprise ("MWBE") Program;
and
WHEREAS, the MWBE Program is being considered for abolishment, by repealing in its entirety
Chapter 18, Article IV, of the Code of the City of Miami, Florida, as amended ("City Code"), entitled
"Minority and Women Business Affairs and Procurement Program," Sections 18-136 through 18-146,
by repealing all related ordinances, resolutions, and administrative policies and procedures, such as,
but not limited to Administrative Policy Manual (APM) 4-86; and
WHEREAS, the City of Miami is desirous of promoting economic welfare for its businesses and
residents by creating a Community Small Business Enterprise ("CSBE"), Community Business
Enterprise ("CBE"), and/or Small Business Enterprise ("SBE") Program"; and
WHEREAS, the creation of a CSBE, CBE, and/or SBE Program is race and gender neutral; and
WHEREAS, the CSBE, CBE, and/or SBE Program serves the City of Miami best interest by
spurring economic development, diversity and inclusiveness by encouraging small businesses to
locate and remain in the City of Miami;
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Ordinance are adopted by
reference and incorporated as if fully set forth in this section.
Section 2. Chapter 18 of the City Code entitled "Finance," is amended to include a new article
City of Miami Page 1 of 6 Printed On: 6/25/2008
File Number. 08-00728
entitled "Community Small Business Enterprise (CSBE), Community Business Enterprise (CBE)
Program and/or Small Business Enterprise (SBE)," in the following particulars:{1}
"CHAPTER 18
FINANCE
ARTICLE IV. COMMUNITY SMALL BUSINESS ENTERPRISE (CSBE), COMMUNITY BUSINESS
ENTERPRISE (CBE) PROGRAM AND/OR SMALL BUSINESS ENTERPRISE (SBE)
SECTION X. PURPOSE.
The purpose of this Ordinance is to ensure that for all solicitations for goods and services including,
but not limited to, architecture, engineering, surveying and mapping professional services and all
solicitations for construction protects in the City of Miami,preference shall be granted to those entities
that have Miami -Dade County certifications for Small Business Enterprise ("SBE"), Community Small
Business Enterprise ("CSBE") and/or Community Business Enterprise ("CBE"), required licensure and
that the enter-prise-rr°raintai►is-aLocaloffice, as -defined in Section 18-73, within the limits of the City of
Miami.
SECTION XX. DEFINITIONS.
Terms not defined in this section shall have the meaninq customarily assigned to them. Otherwise,
the following words, terms and phrases, when used in this section, shall have the meaning ascribed to
them in this section, except where the context clearly indicates a different meaning:
a. Bid/Proposal as defined in Section 18-73, City of Miami Procurement Ordinance.
b. Bidder/Proposer means any person, partnership, corporation or other business
entity that submits a bid/proposal.
c. Bid Preference means the City reserves the right to adjusts evaluation points on
qualitative selection processes or call for best and final offers on bids within certain
pre -established ranges as provided for herein.
d. Community Small Business Enterprise LCSBE) as may be amended from time to
time by Miami -Dade County, means a construction related enterprise including a
design -build firm, which has an actual place of business in Miami -Dade County and
whose average annual gross revenues for the last three years do not exceed:
$5,000,000 for SIC 15/NAICS 233 Building Construction, General Contractors and
Operative Builders; $3,000,000 for SIC 16/NAICS 234-Heavy Construction, other
than Building Construction; or $2,500,000 for SIC 17/NAICS 235-Specialty Trade
Contractors. A CSBE shall be categorized in accordance with Miami -Dade County
city of Miami Page 2 of 6 Printed On: 6/25/2008
File Number; 08-00728
regulations. A CSBE will graduate out of the program once it has exceeded these
size limits based on its three-year average annual gross revenues. A CSBE must
be certified by Miami -Dade County and provide proof with submittal of any bid.
e. Community Business Enterprise (CBE) as may be amended from time to time by
Miami -Dade County, means a firm providing architectural, landscaping architectural,
engineering, or surveying and mapping professional services, including design -build
firms, which have an actual place of business in Miami -Dade County and whose
three-year average annual gross revenue do not exceed two million dollars for a first
tier CBE; four million for second tier CBE in the case of architectural, engineering or
surveying and mapping services; or six million dollars for second tier CBE in the
case of landscape architectural services. The CBE size limit is based on its
three -near average cumulative adjusted gross revenues of the applicant firm in
combination with that of all of the firm's affiliates as provided in Appendix A pursuant
to the Miami -Dade County Ordinance 01-103. Representations as to gross
revenues shall be subject to audit. A CBE must be certified by Miami -Dade County
and provide proof with submittal of any bid.
f. The City of Miami shall refer to the City.
g. Small Business Enterprise (SBE) as amended from time to time by Miami -Dade
County means a firm providing goods and or services other than those defined in
Section 3d and 3e which have an actual place of business in Miami -Dade County
and satisfy all eligibility criteria resulting in an active certification pursuant to Section
2-8 of the Code of Miami Dade County creating small business enterprise eligibility
designation and certification and whose average annual gross revenues are within
the limits prescribed therein. A SBE must be certified by Miami -Dade County and
provide proof with submittal of any bid.
SECTION XXX. COMPETITIVE BIDDING.
When a responsive and responsible non- SBE or non-CSBE Bidder
submits:
a) the lowest responsive bid: and
b) the bid submitted by a SBE Bidder or a Bidder with qualified CSBE subcontractors receiving
a guaranteed 15% or more of the total bid amount where such bid is within 5% of the low
bid submitted by the non-CSBE Bidder, then the SBE Bidder or Bidder with qualified CSBE
subcontractors receiving a guaranteed 15% or more of the total bid amount shall have the
opportunity to submit, within five (5) business days of the notification a best and final bid
equal to or lower than the amount of the low bid previously submitted by the lowest
responsive, responsible Bidder. The Contract Award shall be made to the responsive,
responsible Bidder submitting the lowest, best and final bid. In the case of a tie in the best
and final bid between the Bidder with SBE or qualified CSBE subcontractors and the
non-CSBE Bidder, the Contract Award shall be made to the SBE Bidder or the Bidder with
qualified CSBE subcontractors. The administration may establish open pools of eligible
and qualified SBE, CBE and CSBE firms and advertise, obtain formal competitive bids or
proposals and award contracts to the eligible and qualified SBE, CBE and CSBE firms not
to exceed $50,000 for professional studies or study activity for project design and
non -study associated professional services where the value of the associated construction
City of Miami Page 3 of 6 Printed On: 6/25/2008
File Number: 08-00728
project does not exceed $1,000,000 or for goods and/or services subject to ratification,
when deemed necessary, by the Commission. All such contracts shall include a
"Termination for Convenience" clause.
SECTION XXXX. INCENTIVE.
When an awarded Bidder is either a CSBE qualified bidder or is a responsive and responsible
non-CSBE qualified bidder that submits the lowest bid with CSBE subcontractors receiving a
guaranteed minimum of 25% or more of the total bid amount under an open competitive non -
pool process, such Bidder will be elLgible to receive a bonus equal to 1% of the total contract
award but not more than $100,000.00 upon a timely completion and final acceptance of the
project as an incentive for utilizing CSBE qualified firms. Any requests for a change order by
CSBE qualifiedbidderor non-CSBE qualified bidder with CSBE subcontractors will eliminate
the aforementioned incentive.
SECTION XXXXX. POINTS SYSTEM.
For Contract Awards based upon evaluation criteria pursuant to a point system there shall be a
participation criterion of 5% of the total points awarded. The points shall be awarded per
Selection Committee member as follows:
Participation Points
>50% 5
41% - 50% 4
3%= 4 3
21 % - 30% 2
11%-20% 1
<10% 0
a. Maximum points will be awarded to the proposer if 50% or more of the total project
work is performed by a CBE company. Percentages reflect the amount of total
contract value prgposed to be assigned to the CBE company. The percentage of
CBE company participation will be calculated by dividing the proposer's
expenditures to a CBE subcontractor for providing direct labor or a bona fide
services, by the total project dollars as identified in the proposal.
b. The City will not count toward a proposer CBE company's participation, any
portion or portions of the CBE company's subcontractor's work that is
subcontracted back to:
1. The proposer, either directly or through any other company or
company -owned or controlled by the proposer; and
2. Any non-CSBE/CBE company.
For Design Build contracts based on evaluation criteria, the utilization of CSBE
subcontractors may be included in the calculation for points granted in this process.
SECTION XXXXXX. SUBCONTRACTORS.
City of Miami Page 4 of 6 Printed On: 6/25/2008
File Number: 08-00728
A SBE/CSBE/CBE company shall not be permitted to subcontract all or a majority of the sub
contractual portion of the work to another non-SBE/CSBE/BCE company. A SBE/CSBE/CBE
company subcontractor shall be prohibited from engaging in a sub contractual agreement with the
intent of collecting or _paying a brokers fee or commission. A SBE/CSBE/CBE subcontractor shall
also be prohibited from entering into a sub contractual agreement with a company whose employees
perform none of the direct labor or service activities specified in the contract.
SECTION XXXXXXX. FAILURE TO ACHIEVE PROFFERED GOAL.
In addition to other appropriate penalties for lack of performance, a bidder that fails to meet or
exceed the stated enterprise goal, final payment(s) shall be reduced by 1 percent for each unmet
percentage. If upon notice of such penalties due the City, the proposer shall remit payment within
ten (10) calendar days. Failure to pay the penalty shall result in a suspension or debarment for the
company, principal or qualifier from submitting bids or proposals or being a member of a team
submitting a bid or proposal until the penalty amount is paid. After paying the penalty, the
bidder/proposer may appeal such penalties to the City Manager who may recommend an adjustment
for the consideration to the Commission for a first time violation only. Bidders may seek new work
while their paid penalty is under appeal.
SECTION XXXXXXXX. IDENTIFICATION OF CSBE-CBE SUBCONTRACTORS.
In order for a non-CSBE or non -CBE firm, that submits a bid or proposal that includes
subcontractors that qualify as CSBE/CBE contractors, to receive preference consideration, the
bid/proposal shall identify all CSBE/CBE companies that will be utilized as subcontractors, and
delineate for each the specific elements of work each CSBE/CBE company will be responsible for
performing and the dollar value of the work and the dollar value of the work as a percentage of the
total contract value. All bids or proposals with CSBE/CBE company participation shall contain the
agreement, signed by both the contractor and the CSBE/CBE subcontractors, that confirms their
intent to establish a business relationship, and that confirms the CSBE/CBE company's percentage
of the Contract.
SECTION XXXXXXXXX. THE CONSULTANT'S COMPETITIVE NEGOTIATION ACT.
All applicable professional services agreements awarded pursuant to this Ordinance shall be
processed in accordance with Florida Statute 287.055, the "Consultant's Competitive Negotiation
Act", as amended.
SECTION XXXXXXXXXX. SUBSTITUTION OF CSBE-CBE SUBCONTRACTORS.
In the event, during the performance of a contract, a contractor that submitted a guarantee that
CSBE/CBE subcontractors would receive a minimum specified percentage of the total award
amount, falls below the minimum specified percentage, the contractor must notify the City and seek
to locate a CSBE/CBE subcontractor to substitute to maintain the specified percentage minimum of
total award. All substitute CSBE/CBE subcontractors must be pre -approved by the City. If, at the
end of the project, the specified percentage participation is not met, the prime firm, prime consultant
or prime contractor will be assessed a penalty of 1 % of the total contract amount for each percent of
the specified percentage unachieved. This penalt will be deducted from the a• •ro•riate •a ment or
contract retainage prior to final payout or as specified in Section XXXXX, Failure to Achieve
Cite of Miami
Page 5 of 6 Printed On: 6/25/2008
File Number: 08-00728
Proffered Goal
*
Section 3. All ordinances or parts of ordinances that are inconsistent or in conflict with the
provisions of this Ordinance are repealed.
Section 4. If any section, part of section, paragraph, clause, phrase, or word of this Ordinance is
declared invalid, the remaining provisions of this Ordinance shall not be affected.
Section 5. This Ordinance shall become effective thirty (30) days after final reading and adoption
thereof. {2}
APPROVED AS TO FORM AND CORRECTNESS:
JULIE O. BRU
CITY ATTORNEY
Footnotes:
{1} Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall
be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicated
omitted and unchanged material.
{2} This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten
days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become
effective immediately upon override of the veto by the City Commission or upon the effective date
stated herein, whichever is later.
City of Miami Page 6 of 6 Printed On: 6/25/2008