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HomeMy WebLinkAboutLegislation 6-25-09City of Miami Legislation Ordinance City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 09-00560 Final Action Date: AN ORDINANCE OF THE MIAMI COMMISSION AMENDING CHAPTER 18/ ARTICLE III, OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY CODE"), ENTITLED "FINANCE/CITY OF MIAMI PROCUREMENT ORDINANCE," TO ESTABLISH A CITY OF MIAMI RESPONSIBLE CONTRACTOR PROGRAM, NEW SECTION 18-118 OF THE CITY CODE; INCLUDING ESTABLISHING AN OVERALL HOURLY RATE OF PAY, PLUS BENEFITS, PER SPECIFIED PROVISIONS OF THE MIAMI-DADE COUNTY CODE REFERENCED HEREIN; AUTHORIZING THE CITY MANAGER TO ESTABLISH AN ADMINISTRATIVE PROCEDURE FOR MONITORING COMPLIANCE WITH AND ENFORCEMENT OF THIS PROGRAM; CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the public interest requires that contractors receiving municipal and other public funds for municipal public works projects be held to certain minimum standards that promote efficiency, ethics, transparency and the accountability; and WHEREAS, it is intended that a City of Miami's ("City") Responsible Contractor Program will promote measures to foster and further good corporate citizenship by the City's contractors and promote the City's best interests by establishing a program that will benefit the contractor, the contractor's employees and serve the interests of the public health, safety and general welfare; NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Ordinance are adopted and incorporated as if fully set forth in this Section. Section 2. Chapter 18/Article III of the Code of the City of Miami, Florida, as amended, entitled "Finance/City of Miami Procurement Ordinance," is amended in the following particulars: {1} "CHAPTER 18 FINANCE ARTICLE III. CITY OF MIAMI PROCUREMENT ORDINANCE Section 18-118. City of Miami Responsible Contractor Program. City of Miami Page 1 of 6 Printed On: 6/17/2009 File Number- 09-00560 (1) All bidders or contractors (which term includes direct bidders or contractors, sub -contractors and tiered sub -contractors throughout this section, whether singular or plural ) shall, as a condition for bidding for an award of public work for the construction, alteration, or repair of any public building, structure, or other public construction work which is subject to the threshold construction project cost amounts set forth in §255.20, Florida Statutes, as amended, in the City of Miami, shall verify under oath and in writing at the time of bidding that they will comply with the following conditions for bidding, contracting or subcontracting for the duration of the project, including: The bidder shall comply with the City of Miami Residency Employment Plan as it currently exists and as it may, from time to time, be amended. A copy of the City of Miami Residency Employment Plan is available upon request as a public record from the City Department of Capital Improvements Projects ("CIP"). The bidder must pay the appropriate lawful prevailing rates to mechanics, laborers or workers employed on the awarded project as per §2-11.16, et seq., Code of Miami -Dade County, as amended, Responsible Wages on County Construction Contracts. The appropriate wage rates are set forth in §2 -11.16 Code of Miami -Dade County, Wages and Benefits Schedule, as amended, for each applicable year of labor performed on any contract or tiered subcontract and are governed by the provisions of this ordinance. 121 All contractors must comply with the requirements of this section and the specifications for each competitively bid contract shall provide: (a) That the contractor to whom the contract is awarded, pay not less than the specified overall per hour rate adjusted over the term of the contract as provided above and in subsubsection (b) and (c) below, and j That the overall per hour rate to be paid for work performed under the contract or subcontract during each subsequent calendar year shall be the overall per hour rate in effect as set forth in §2- 11.16 Code of Miami -Dade County ("County Code"), Wages and Benefits Schedule, as amended, as of January 1st, of the year in which the work is performed. If a particular craft or type of employee is not listed in the Wages and Benefits Schedule, in ascertaining the initial overall per hour rate to be paid those employees, the minimum standard shall be the combined overall dollar value on an hourly basis of the "basic hourly rate of pay" (as defined in 29 CFR 5.24 and paid as set forth below) and of the fringe benefits payments for hospitalization, medical, retirement and life insurance benefits for such craft or type of employee under the Secretary of Labor's wage determination, made pursuant to the provisions of the Davis -Bacon Act) in effect for Miami -Dade County, Florida, as of the end of the calendar year in which the proposed bid is expected to be advertised. The foregoing notwithstanding, where not otherwise precluded by state or federal law, the overall per hour rate shall be the higher rate under Section 2-11.16 of the County Code or the rate of wages to be paid under the requirements of the Davis -Bacon Act; provided, further, that the overall per hour rate shall not be the higher rate if the federal government requires the City as a condition of receiving federal funds for a project to pay no more than the wages as determined by the U.S. Department of Labor under the Davis -Bacon Act on project contracts. The contractor to whom the contract is awarded, shall pay not less than the specified overall per hour rate adjusted over the term of the contract as provided in this sub -subsection, and That the contractor, may fulfill the obligation to pay such specified overall per hour rate by payment to the employee of the hourly wage rate listed in §2-11.16 County Code, Wages and Benefits City of Miami Page 2 of 6 Printed On: 6/17/2009 File Number. 09-00560 Schedule, as amended, or, if applicable, under subsubsection (b) above, the "basic hourly rate of pay" as defined in 29 CFR 5.24 contained in the Secretary of Labor's wage determination, for such craft or type of employee plus either: (i) payment on the employee's behalf of the cost, on an hourly basis, of the hospitalization, medical, retirement and life insurance benefits specified for such craft or type of employee; or, (ii) payment to the employee, in addition to the listed hourly wage rate, or "basic hourly rate of pay, if applicable, of an amount equal to the hospitalization, medical, retirement and life insurance benefits (on an hourly basis) contractors are required to provide under 52-11.16 County Code, Wages and Benefits Schedule, as amended (or, if applicable, under sub -subsection (a) above, an amount equal to the fringe benefit payments on an hourly basis for hospitalization, medical, retirement and life insurance benefits contained in the Secretary of Labor's wage determination) for such craft or type of employee. Payments to employees shall be counted towards fulfillment of the above obligation only to the extent that such payments are made by check or money order; and Ica That the contractor, shall post in a conspicuous place on the site where such contract work is performed: (1) the schedule of the specified overall per hour rate for each applicable classification specified by the §2-11.16 County Code, Wages and Benefits Schedule, as amended; (2) the amount of liquidated damages for any failure to pay such rates; and (3) the name and address of the responsible official in the City of Miami to whom complaints should be given, and That the contractor be required to keep, or cause to be kept, accurate written records signed under oath as true and correct showing the names, Social Security numbers, and craft classifications of all employees performing work on said contract, the hours and fractions of hours for every type of work performed by each employee, the combined dollar value of all wages, any contributions to benefit plans and payments made to each employee of the overall per hour rate required by this Section and further require the contractor to submit to the City a list of all subcontractors and the names and Social Security numbers of all employees thereof who performed work each day on the contract and further require each subcontractor to also submit to the City a list of the names and Social Security numbers of its employees who performed work each day on the contract, and la That no contractor may terminate an employee performing work on the contract because of the employee's filing a complaint regarding payment of required overall per hour rates, and Lql That there may be withheld from the contractor so much of accrued payments as may be considered necessary to pay to employees employed by the contractor in the performance of the contract work, the difference between the overall per hour rate required by the contract to be paid employees on the work and the amounts received by such employees and not refunded to the contractor, and any of its subcontractors or their agents. LQ The City of Miami shall periodically examine the records required to be kept under this section to assure that: Lal The bidder must, at the time of bidding maintain or participate in a state certified apprentice training program, which is an apprenticeship program registered with and approved by the U.S. Department of Labor or with a state apprenticeship agency and has graduated apprentices to journeymen status for at least two of the past five years. The bidder must maintain a.021 ppropriate workers' compensation accident insurance coverage. (i)The bidder must properly classify employees as employees rather than independent contractors and City of Miami Page 3 of 6 Printed On: 6/17/2009 File Number- 09-00560 treat them accordingly for purposes of workers' compensation insurance coverage, unemployment taxes, social security taxes and income tax withholding. IL The bidder utilizing the services of independent contractors must establish proof of workers compensation insurance for any employees of the independent contractor(s) and provide a copy of the election of exemption certificate by any corporate officer, sole proprietor or partner exempt from workers compensation coverage as provided by §440.05, Florida Statutes, as amended. Proof of such election shall be promptly furnished to the City of Miami Risk Manager and CIP Department. The contractor agrees and warrants that in the performance of work under this contract not to discriminate or permit discrimination in employment against any person or group of persons because of race, color, religious creed, age, marital status, national origin, sex, sexual preference, or because of physical or mental disability, unless it is shown by such contractor that such disability prevents performance of the work under the contract. Nothing contained herein relieves any contractor from compliance with applicable federal or state law concerning equal employment opportunity, affirmative action or non-discrimination. lit The bidder shall incorporate the requirements of this ordinance into each subcontract and require that each subcontractor incorporate the requirements of this ordinance into all subsequent subcontracts such that all lower tiered subcontractors performing work under the contract shall be informed of the terms hereof. Lei. A notice in English, Creole, and Spanish shall be posted by contractors in conspicuous places on the project site containing the provisions of this ordinance. Such notice shall also contain the name and phone number of the City of Miami Department to call with questions or information on suspected violations. No contractor shall discriminate against, terminate or otherwise retaliate against any worker asking for or providing information to the Department. Lf All bidders must submit, with their bids, a statement disclosing whether the bidder on the bidder's previous projects have been cited or found by a court or law enforcement agency of violations of federal or state labor or employment tax laws, such as, safety, tax withholding, workers compensation, unemployment tax, Social Security and Medicare tax, wage and hour and prevailing rate laws. Such disclosure shall cover a period of five years up to the date the bid is due and shall indicate the name of the contractor, a brief description of the offence(s) the date of such findings and the fines, restitution or other penalties. A bid submitted by any contractor or the City of Miami that does not comply with any of the foregoing conditions shall be rejected, and no contract or subcontract shall be awarded to a subcontractor that does not agree to comply with the foregoing conditions. All bidders on projects shall comply with the obligations herein for the entire duration of their work on the project, and an officer of each bidder shall certify under oath and in writing on a monthly basis compliance exists for all such obligations. A bidder shall be equally, jointly and severally liable for the violations of its subcontractors. All bidding requests or contracts entered into by the City of Miami for the construction, alteration or repair of any public building or public work and employing or using mechanics, laborers and workers in the performance of work under the contract shall incorporate or expressly reference, with a citation, City of Miami Page 4 of 6 Printed On: 6/17/2009 File Number: 09-00560 the major provisions of this ordinance. Q The City of Miami shall use the disclosure statements described in subsection 1 of this section when awarding any contract or subcontract for the construction, alteration or repair of any public building or public work which is subject to the threshold construction project cost amounts set forth in §255.20, Florida Statutes, as amended. The information in the disclosures will be used to pre -qualify and determine whether the contractor or subcontractor is eligible to perform the work. (6) The City Manager shall establish an administrative procedure for monitoring compliance with and enforcement of the requirements of this program as set forth in this section. Such procedure shall provide that the City Manager or designee may conduct investigations of compliance with the requirements of this Section and issue written notices to a contractor when it determines based on such investigation that the contractor has not complied herewith. Lal The contractor shall respond in writing to the notice of noncompliance. Based on the response, the City Manager or designee may determine to rescind the notice of noncompliance or to conduct a Compliance Meeting with the affected contractor or subcontractor at which any additional evidence may be presented. The City Manager or designee shall make a written compliance determination following any meeting to determine compliance. A determination that the contractor has not complied with the requirements of this Section shall state the basis therefore and shall advise the contractor of its right to file a written request with the City Manager within 30 calendar days to schedule an administrative hearing before a hearing officer to appeal the determination as provided below. A contractor or subcontractor who fails to respond to a notice of noncompliance, fails to attend a meeting to determine compliance, or who does not timely request an administrative hearing from an adverse compliance determination made by the City Manager or designee after a Compliance Meeting shall be deemed not to have complied with the requirements of this ordinance as stated in the notice or determination of non-compliance and, in the case of underpayment of the required overall per hour rate, an amount sufficient to pay any underpayment shall be withheld from contract proceeds and remitted to the employee and the contractor shall be fined the applicable penalty for such underpayment as provided in this subsection (f). A contractor who does not make the required payment of the underpaid wages or who does not pay any fine imposed hereunder shall not be deemed responsible to perform subsequent City construction contracts and shall be ineligible to be awarded such contracts for so Ionq as the identified underpayment or any penalties imposed for non-compliance remain outstanding, not to exceed three years. Upon timely receipt of a request for an administrative hearing before a hearing officer to appeal a determination of non-compliance, the City Manager shall appoint a hearing officer and fix a time for an administrative hearing thereon. A notice of hearing, together with a copy of the determination of non-compliance shall be served upon the contractor. Upon completion of the hearing, the hearing officer shall submit proposed written findings and recommendations together with a transcript of the hearing to the City Manager within a reasonable time. The City Manager shall determine whether the contractor (or subcontractor) failed to comply with any requirements of this ordinance, including underpayments. If the Manager's determination is that the contractor or subcontractor or tiered sub -contractor failed to comply, the Manager may order the cessation of work on the project until compliance is obtained or termination of said contractor or sub -contractor or tiered sub -contractor. City of Miami Page 5 of 6 Printed On: 6/17/2009 File Number: 09-00560 In addition, the non -complying contractor may be subject to damages payable to the City of Miami in the amount of 5% of the dollar value the contract, and the non -complying contractor or sub -contractor or tiered sub -contractor and the principal owners thereof may be prohibited from bidding on or otherwise participating in City contracts for the construction, alteration or repair, and may be barred from bidding or performing any work on any future projects for six (6)months for a first violation, for three (3) years for a second violation, and permanently removed and debarred for a third violation. Section 3. If any section, part of a section, paragraph, clause, phrase or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected. Section 4. 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 indicate 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: 6/17/2009