HomeMy WebLinkAboutLegislation FR/SRCity of Miami
Legislation
Ordinance
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 15-00035 Final Action Date:
AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER
18/ARTICLE III OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED,
ENTITLED "FINANCE/ CITY OF MIAMI PROCUREMENT ORDINANCE",
REQUIRING RESPONSIBLE WAGE CONSTRUCTION CONTRACTS, UNDER NEW
SECTION 18-120 OF THE CITY CODE; 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 projects be held to certain minimum standards that promote efficiency, ethics,
transparency and accountability; and
WHEREAS, this ordinance will improve and enhance the standard of living and quality of life for
City of Miami ("City") residents and provide for a better quality work product for municipal projects; and
WHEREAS, it is intended that responsible wage construction contracts will promote measures
to foster and further good corporate citizenship by the City's contractors and will promote the City's
best interests by establishing requirements that will benefit the contractor and the contractors
employees, and serve the interests of the public health, safety and general welfare; and
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 Ili/ of the Code of the City of Miami, Florida, as amended, entitled
"Finance/City of Miami Procurement Ordinance", is further amended in the following particulars:{1}
"CHAPTER 18
FINANCE
ARTICLE III. CITY OF MIAMI PROCUREMENT ORDINANCE
Sec. 18-120. Responsible Wage Construction Contracts.
,(A), In addition to the other elements of the term "responsible bidder" in law or in the discretion of the
City Commission, as defined per Section 18-73 of the City Code and as applies to competitively
bid City contracts in excess of one hundred thousand dollars ($100,000.00) for the construction,
alteration, and/or repair, including painting or decorating, of public buildings or public works, shall
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mean a bidder who provides documented proof in its bid that the various classes of laborers
and mechanics will be paid no less than the specified overall hourly rates as set forth in
the contract specifications. All leases and contracts entered into after the effective date
of this ordinance which provide for privately funded construction, alteration or repair of
buildings or improvements located on City -owned land shall require laborers and
mechanics performing such work be paid no less than the overall hourly rates required on
competitively bid City construction contracts under this Section unless specifically
exempted below. Fees for monitoring compliance with this Section shall be charged as
provided in the most current City-wide Budget as follows: for City construction contracts,
the Department of Capital Improvements and Transportation Projects ("CITP") shall
charge the using department therefor; for leases and contracts which provide for privately
funded construction, alteration or repair of buildings or improvements on City -owned land,
the party contracting with the City shall be charged therefor.
The specifications for each competitively bid City contract in excess of one hundred
thousand dollars ($100,000.00) for the construction, alteration and/or repair, including
painting or decorating, of public buildings or public works shall specify an initial overall per
hour rate to be paid to each craft or type of employee necessary to perform the contract
work as listed in local area nondiscriminatory negotiated contracts (hereinafter referred to
for purposes of this subsection (b) as "negotiated contracts") between organizations
which represent employees and contractors. In ascertaining the initial overall per hour
rate to be paid, the minimum standard shall be the combined overall dollar value on an
hourly basis of the wages (paid as set forth below) and of the hospitalization, medical,
pension and life insurance benefits (paid as set forth below) for such craft or type of
employee under negotiated contracts in effect as of January 1st of the calendar year in
which said proposal bid is expected to be advertised, or, in the case of a lease or contract
providing for privately funded construction on City -owned land subject to this Section,
under the negotiated contracts in effect as of January lst of the calendar year in which
said proposed lease or contract is expected to be executed, Thereafter, the
specifications shall provide that the overall per hour rate to be paid for work performed
under the contract during each subsequent calendar year shall be the overall per hour
rate in effect 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 such negotiated contracts, 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) (paid as set forth below) and of the fringe benefits payments
(paid as set forth below) for hospitalization, medical pension 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 the City of Miami,
Florida, as of the end of the calendar year in which the proposed bid is expected to be
advertised. The foregoing and the provisions of Section 18-120(e) notwithstanding,
where not otherwise precluded by state or federal law, the overall per hour rate shall be
the higher rate under this Section 18-120 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
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specifications for such contracts shall:
(1) Include a sum certain in dollars and cents as an initial overall per hour rate for each
craft or type of employee to be paid for work performed during the period commencing
on the date of issuance of the notice to proceed and continuing through the calendar
year (or, in the case of a lease or contract providing for privately funded construction
on City -owned land subject to this Section, ending the last day of the calendar year in
which the lease or contract was executed). The specifications shall further provide
that the overall per hour rate to be paid for work performed during the year period
commencing the next January 1st after the date of issuance of the notice to proceed
(or, in the case of a lease or contract providing for privately funded construction on
City -owned land subject to this Section after the date of execution of such lease or
contract) shall be such rate (as determined in accordance with subsection (b) above)
for that calendar year and shall be updated thereafter on each subsequent January
1st to the rate (as determined in accordance with subsection (b) above) for the
ensuing calendar year until completion of the contract work; and
Lai Mandate the contractor to whom the contract is awarded, and any of its
subcontractors performing any of the contract work, pay not less than the specified
overall per hour rate adjusted over the term of the contract as provided in subsection
.(1) above; and
Provide that the contractor, and any of its subcontractors, may fulfill the obligation to
pay such specified overall per hour rate by payment to the employee of the hourly
wage rate listed in the negotiated contracts (or, if applicable, under subsection (1)
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: (a) payment on the employee's behalf of the cost (on an hourly basis) of the
hospitalization, medical, pension and life insurance benefits specified for such craft or
type of employee; or, (b) 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, pension and life insurance benefits (on an hourly basis)
contractors are required to provide under the negotiated contracts (or, if applicable,
under subsection (1) above, an amount equal to the fringe benefit payments on an
hourly basis for hospitalization, medical, pension 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
Provide that the contractor, and each subcontractor under the contractor, shall post
in a conspicuous place on the site where such contract work is performed: (a) the
schedule of the specified overall per hour rate for each applicable classification
specified by such negotiated contracts; (b) the amount of liquidated damages for any
failure to pay such rates; and (c) the name and address of the responsible official in
the City to whom complaints should be given; and
(5) Provide that there may be withheld from the contractor so much of accrued
payments as may be considered necessary by the contracting officer to pay to
employees employed by the contractor (or any subcontractor under 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
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by such employees and not refunded to the contractor, and any of its subcontractors
or their agents; and
(6) Require the contractor and each subcontractor under the contractor 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 benefitplans 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
(71 Provide that no contractor (or subcontractor under the contractor) may terminate an
employee performing work on the contract because of the employee's filing of a
complaint regarding payment of required overall per hour rates.
(c) City shall periodically examine the records required to be kept under subsection (6) of
subsection (b) of this section.
(d),The City Manager shall establish an administrative procedure for monitoring compliance
with and enforcement of the requirements of this Section. Such procedure shall provide
that:
(1) CITP may conduct investigations of compliance with the requirements of this
Section and issue written notices to a contractor (or subcontractor under the
contractor) when it determines based on such investigation that the contractor (or
subcontractor) has not complied herewith;
(2) The contractor or subcontractor shall respond in writing to the notice of
noncompliance;
(3) Based on the response, CITP 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.,
(4) CITP shall make a written compliance determination following any Compliance
Meeting. A determination that the contractor or subcontractor has not complied with
the requirements of this Section shall state the basis therefore and shall advise the
contractor or subcontractor of its right to file a written request with the City Manager
within thirty (30) calendar days to schedule an administrative hearing before a hearing
officer to appeal the determination as provided below; and
(5) A contractor or subcontractor who fails to respond to a notice of noncompliance,
fails to attend a Compliance Meeting, or who does not timely request an administrative
hearing from an adverse compliance determination made by CITP 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 or subcontractor shall be fined the applicable penalty for such
underpayment as provided in this subsection (d). A contractor or subcontractor who
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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 long
as the identified underpayment or any penalties imposed therefor remain outstanding,
not to exceed three (3) 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 CITP's determination of non-compliance) shall be served upon the contractor (or
subcontractor). 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 the requirements of this ordinance. If the Manager's
determination is that the contractor (or subcontractor) failed to comply, and that such failure
was pervasive, the Manager may order that the contract work be suspended or terminated,
and that the noncomplying contractor (or subcontractor) and the principal owners thereof be
prohibited from bidding on or otherwise participating in City contracts for the construction,
alteration and/or repair, including painting or decorating of public buildings or public works for
a period of up to three (3) years. In addition, 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 affected employees and the contractor or subcontractor
shall be fined the penalties provided below. If the Manager's determination is that the
contractor (or subcontractor) failed to comply and that such failure was limited to isolated
instances and was not pervasive, the City Manager may, in the case of underpayment of the
required overall per hour rate, order an amount equal to the amount of such underpayment be
withheld from the contractor and remitted to the employee, and may also fine the contractor or
subcontractor for such noncompliance as follows; for the first underpayment, a penalty in an
amount equal to ten percent (10%) of the amount thereof; for the second underpayment, a
penalty in an amount equal to twenty percent (20%) thereof; for the third and successive
underpayments, a penalty in an amount equal to thirty percent (30%) thereof. A fourth
violation shall constitute a default of the subject contract and may be cause for suspension or
termination in accordance with the contract's terms and debarment in accordance with the
debarment procedures of the City. Monies received from payment of penalties imposed
hereunder shall be deposited in a separate account and shall be utilized solely to defray
CITP's costs of administering this ordinance. If the required payment is not made within a
reasonable period of time, the noncomplying contractor (or subcontractor) and the principal
owners thereof shall be prohibited from bidding on or otherwise participating in City contracts
for the construction, alteration, and/or repair, including painting or decorating of public
buildings or public works for a period of three (3) years.
(e)This section shall not apply to City contracts for construction or alteration which are federally
funded or which are otherwise subject to the provisions of the Davis -Bacon Act (40 U.S.C.
276(a)).
f, This section shall not apply to any contract for which authority to advertise for bids has been
obtained prior to the effective date of this section.
.(g),This ordinance shall not apply to contracts designed to consolidate an indeterminate number of
individual smaller construction, repair/replacement or alteration activities which may be needed
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over a fixed period of time throughout the City's facilities and which are addressed by building
specialty/trades contractors pre -qualified to provide such services to the City.
(h)As used in the construction of this section, references to the masculine shall include the feminine
and references to the singular shall include the plural, and vice versa.
.l Exemption for certain privately funded construction. This Section shall not apply to leases and
contracts entered into after the effective date of this ordinance which provide for privately funded
construction, alteration or repair of buildings or improvements located on City -owned lands whose
estimated cost is equal to or less than five million dollars ($5,000,000,00) which are financed:
(1) Solely through private sources, without one dollar ($1.00) or more of financing provided
through any federal, state, county, city, local governmental entity or bond sources; or
(2) by entities which meet all three (3) of the following conditions: exemption from federal
income taxes pursuant to Section 501(c)(3) of the Internal Revenue Code, not -for -profit status
and community -based.
.(j). The foregoing notwithstanding, any lease or contract entered into after the effective date of this
ordinance which provides for privately funded construction, alteration or repair of buildings or
improvements located on County -owned land whose estimated cost is equal to or less than five
million dollars ($5,000,000.00), receives bond financing and also receives State and/or local
development incentives (including but not limited to: waiver of or reduced impact or permit fees
and reduced property or other taxes) based on job creation shall not require payment of the
overall hourly rates provided by this Section. Such lease or contract shall provide that in the event
the job creation requirements on which the foregoing development incentives were conditioned
are not fulfilled, the lessee shall be required to pay a penalty of up to twenty percent (20%) of the
cost of such construction, alteration or repair. Said penalty shall be in addition to any rental or
other payments required in each lease or contract to which this subsection applies. Said penalty
shall be paid to the City of Miami and shall be used to cover the costs of monitoring compliance
with this Section.
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}
APPRSVED AS TO FORM AND CORRECTNESS:
VIC '•RIA M° NDEZ
CITY ATTORNEY
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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 (10) 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.
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