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AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA
AND
SP PLUS MUNICIPAL SERVICES,
A DIVISION OF STANDARD PARKING CORPORATION,
TO PROVIDE PARKING METER COLLECTION SERVICES
FOR - THE CITY OF MIAMI BEACH PARKING SYSTEM
PURSUANT TO REQUEST FOR-PROPOSALS NO. 43 -10111
of A y
THIS AGREEMENT made on this day 7. , 2012, by and between the
CITY OF MIAMI BEACH, a Florida municipal corporation located at 1700 Convention Center Drive,
Miami Beach, Florida, which term shall include its officials, successors, legal representatives, and
assigns (City), and SP PLUS MUNICIPAL. SERVICES, a division of STANDARD PARKING
CORPORATION, a Delaware corporation with local offices'at 901 South Miami Avenue, Suite 303,,
Miami, Florida, which term shall include its officials, successors, legal representatives, and assigns
(Contractor).
SECTION 1
DEFINITIONS
Agreement: This written Agreement between the City and the Contractor:
City Manager: "City Manager" means the Chief Administrative Officer of the City or
his /her authorized designee.
Contractor: For the purposes of this Agreement, Contractor shall be deemed to be an
independent contractor, and not an agent or employee of the City.
Contract Manager: An individual designated and fully funded by Contractor vested with the
authority to represent, correspond, and act on behalf of the Contractor
with regard to the performance of the Services and this Agreement.
Policies and
Procedures: The City of Miami Beach Parking Departrnert'Policies and Procedures
for Meter Collection Services, as same may be amended from time to
time. The most current copy of the Policies and Procedures, as of the
Commencement Date of this Agreement, is attached and incorpor=ated as
Exhibit <<E„ hereto.
Project
Coordinator:" An individual - designated by the City Manager with the authority to
represent,' correspond, and act on behalf of the City with regard to the
day to day performance of the Services.
Proposal
Documents:. Proposal Documents shall mean Request for Proposals No. 14 -10/11 to
Solicit Proposals for Parking Meter Collections Services for the City's
Parking System (the RFP); and b) the Contractor's response thereto
(Proposal), both of which are attached and incorporated as Exhibit "A"
hereto; provided, however, that. in the event of an express conflict
between the Proposal Documents and the Agreement, the precedence
Will be given to that term /provision which allows the City to enforce the
Agreement in the strictest possible terms, and /or in accordance . with the
term(s) most favorable to the City.
Risk Manager: The Risk Manager of the-City, with offices at 1700 Convention Center Drive,
Third Floor, Miami.Beach, Florida 33139.
Services:,.. All services, work and actions by the Contractor performed pursuant to or
undertaken under this Agreement, and including, without limitation, those set
forth in the Scope of Services of the RFP; Contractor's Proposal; and any
exhibits and /or amendments hereto. In the evert of an express conflict
among the RFP, Contractor's Proposal, and this Agreement, the precedence
Will be given to that term /provision which allows the City to enforce the
Agreement in the strictest. possible terms, and /or in accordance with the
term(s) most favorable for the City.
Termination: Termination of Contrac'tor's Services, as provided in Section 4.7 of this
Agreement.
SECTION 2
SCOPE OF WORK AND SERVICES REQUIRED (SERVICES)
Contractor shall provide the City of Miami Beach Parking System with trained, qualified
employees, positioned as parking meter collectors and supervisors, to provide the Services
contemplated in this Agreement, as deemed necessary by the City, through its City Manager, or
Project Coordinator, at their'respective sole and reasonable discretion. These individuals will be
employees of the Contractor and shall at no time be considered City employees. Contractor shall
select,. train, and employ such number of employees as is necessary or appropriate for Contractor to
provide the Services and to satisfy its responsibilities hereunder.
Contractor will utilize other Contractor employees to filkin for vacation days and sick days for
all personnel required by the City under this Agreement. Selection, hiring, and staffing of the
required parking meter collectors and supervisors;-as required to ensure the provisions of the
Services in -a first - class manner, will be the sole responsibility of the Contractor. Notwithstanding the
preceding, however, the City Manager or Project Coordinator shall have the authority, at any time
during the Term, to review Contractor's staffing levels to determine, in their respective reasonable
discretion, that Contractor is providing the Services in accordance with the highest levels of service
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and professionalism, and in a manner comparabie to the provision of similar work and /or services in
comparable municipalities or government. agencies.
It is the sole responsibility of the Contractor to ensure that all personnel are trained in the use
of the equipment required to open, collect, and audit the single space and multi -space parking
meters, and that such ;personnel have received training `in,,.and are fully knowledgeable with, the
Policies and Procedures. Contractor and its employees shall at all times during the Term, adhere to
the Policies and Procedures. Notwithstanding the preceding, the City reserves the right, in.its sole
and reasonable discretion, to amend the Policies and Procedures at any time during the Term,.and
Contractor hereby agrees and acknowledges to be governed by any and all such amendments. The
City shall provide Contractor with written notice of all such amendments.
Contractor shall issue its employees uniforms, which shall be approved by the Project
Coordinator and worn per City- issued standards. Contractor and its employees shall keep uniforms
in dike -new condition. Contractor will provide and directly pay for the costs of all uniforms.
Contractor will provide for individual honesty tests for its employees during its hiring process,
and as.may otherwise be required by the Project Coordinator from time to time throughout the Term.
Contractor shall provide collection service for single space parking meters and multi -space
pay stations owned by the City, located at.sites (designated herein) within the City of Miami Beach.
Collection service shall transport all coins, bills, and /or data collected from single space parking
meters and multi- space pay stations to any place within the City of Miami Beach deemed acceptable
to the Project Coordinator, for the purpose of counting, storing, depositing, or any combination
thereof.
Contractor shall be responsible for the coded collection keys, electronic locking system
access cards, sealed coin collection buckets, bill hoppers, data retrieval hand held devices, hand
held computers, data retrieval cards, and any other equipment issued by the City (collectively, for
purposes of this Agreement, the "Equipment'). Contractor shall be solely responsible for repair or
replacement, including parts and labor, of any equipment due to same being damaged, lost, or
stolen- while in Contractor's care, custody, and /or control.. This includes, without limitation; the
aforestated Equipment, and.-any other equipment associated with Contractor's provision of the
Services hereunder. Any of the aforementioned Equipment must be replaced within seven .(7)
calendar days of damage or loss. Failure to comply with the aforestated timeline shall result in a
penalty of (i) $250.00 day, or (ii) ten percent (10 %) per day, of the total value due to the City from
the Contractor due to the loss of Equipment; whichever is greater. The greater of these two
penalties will be assessed against the Contractor for every calendar day past the seventh (7th) day;
such penalty shall be deducted from any future or current remittances due to the Contractor.
Any and.all equipment supplied by the City to the Contractor (including without limitation, the
Equipment, as defined in the preceding paragraph) for the purpose of performing Contractor's
Services under this Agreement will be replaced at the Contractor's sole cost and expense in the
event of loss or damage while in the Contractor's care, custody and /or control.
Contractor's personnel shall be unarmed at all times while engaged in the, collection of and
transportation of parking meter revenues.
Contractor shall provide secure and safeguarded collection service vehicles. Contractor
. shall supply a minimum of three (3) collection vehicles (2011 or newer), equipped in accordance
with the specifications outlined in the RFP. Contractor shall provide a fourth (4') collection vehicle
(2009 model or newer) by October 1, 2012 (also equipped in accordance with the specifications
outlined in the RFP).
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Additional vehicles may be required by the City, as needed to perform collection and collection
supervision services.
Each collection service vehicle shall have a minimum of two (2) collection service personnel,
in uniform, with photograph identification. The collection service personnel will wear identification
tags, provided by the City, at all times while collecting coins and delivering the collected or counted
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coins. One (1) supervisor must remain in radio contact with the Project Coordinator or his /her
` authorized designee within the City's Parking Department.
During the Term, the Contractor agrees not to hire any City employee; either as a part -time
or full -time employee or as an independent contractor, that would par #icipate,and /or be associated
with the Services outlined herein including, without limitation, in providing parking meter collection
services to the City of Miami' Beach.
The City's Parking Department shall have -the right, as deemed appropriate, and in the sole
discretion of the City Manager or the Project Coordinator,'to have City personnel closely monitor the
collection services for any and all security reasons.
The Contractor shall be responsible for returning any loaned equipment to the City
(including, without limitation, the Equipment as defined in this Section 2). Any equipment damaged,
lost, or stolen while in the custody, care, or control of the Contractor will be repaired or replaced at
the Contractor's sole and expense.
Contractor shall reimburse City, in full, for any discrepancies, within seventy -two (72) hours
of notice, whether written or verbal, from City to Contractor of said discrepancy. Reimbursement
shall be made to:
City_ of Miami Beach Parking Department
1755 Meridian Avenue, Suite 200
Miami Beach, Florida 33.139 -
Attention: Parking Director
2.1 Proposal Documents Incorporated:
Notwithstanding the description of the Services in this Section 2, Contractor shall, without.
limitation,_ provide any and all services and /or other work as set forth in the Proposal Documents. In
the event that the Project Coordinator determines, in his /her sole and reasonable discretion, that
Contractor is not providing a particular service and /or other -work which was specified in the
Proposal Documents, the Project Coordinator may elect, in his /her sole and reasonable discretion,
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to identify the deficiency by written notice to Contractor. Contractor shall be required to provide said
service and /or work (as set forth in Project Coordinator's notice) within ten (10) business days of
such written notification. Notwithstanding the preceding, the aforestated notice shall in no way" limit
any of the City's rights and remedies under this Agreement in the event of a default by Contractor
pursuant to the terms of the Agreement.
2.4 Frequency of Collection:
At the CifiI Manager or Project Coordinator's sole option and discretion, Contractor may be
required to increase or decrease the frequency of collection.
2.5 Additional Public Benefit:
During the Term, and subject to mutual agreement by the parties (which mutual agreement -
shall be memorialized, in writing, and executed by the City Manager, on behalf ,of the City, and
Contract Manager, on behalf of Contractor), the Contractor shall implement one or more joint
"public-'private" not - for - profit collaborations for the benefit of the City of Miami Beach community,
including, without limitation, a Children's Toy Drive; Thanksgiving Food Drive; and similar everts.
SECTION 3
COMPENSATION
3.1 FIXED FEE ,.
Commencing on January 13, 2012, through and including September 30, 2012, Contractor's
billing rate will be, $0.87. per single space meter collected, and $8.70 per multi -space meter
collected. Commencing on October 1, 2012, through and including January 12, 2015 (expiration of
the initial three (3) year term), Contractor's billing rate will be adjusted, to $0.92 per single space
meter collected, and $9.18 per multi -space meter collected. This increase includes the cost of the
fourth (4 collection vehicle, (2009 model or newer) which Contractor shall provide - by October 1,
2012 (equipped in accordance with the specifications outlined in the kFP).
Contractor's employees will be paid by the Contractor on an hourly' basis.
Contractor will be solely responsible for payment of payroll taxes, worker's compensation,
retirement benefits, and group insurance for each of its employees, and the City shall have no
liability whatsoever, whether to Contractor or its individual employees, for same.
The parties acknowledge that if, during the Term, (i) the Federal Minimum Wage (covering
the classification of Services provided under this Agreement) may be increased through enactment
of Federal Legislation or if, during the Term (ii) Contractor may want to increase the gross hourly
rate and corresponding benefits to its employees then Contractor shall promptly notify the City .
Manager, in writing, of such increase in subsection (i)*or, as the case may be, of Contractor's
request to provide its. employees with an increase pursuant to subsection (ii). Following
presentation of documentation (satisfactory to the City Manager) confirming such increase request,
and subject further to'the prior approval of the City Commission, which approval, if given at all, shall
be at the sole option and reasonable, discretion of the Commission, Contractor may be entitled to
receive additional compensation equal to the actual increase in (as the case may be) either the
Federal Minimum Wage or the increase request in subsection (ii) hereof. This - increase, if approved,
may also result in a corresponding proportionate increase to the billing rate charged to the City.
.3.1.1 Living Wage Ordinance Requirement:
THE FOLLOWING REQUIREMENTS SHALL APPLY TO THIS CONTRACT: Pursuant to City of
Miami Beach Living Wage Ordinance No. 2010 -3682, as codified in Chapter 2, Division 6, Sections
2 -407 through 2 -410, of the Miami Beach Code, and as attached and incorporated as Exhibit "C"
hereto, -all service groups or individuals, entering into a contract with the City, shall be required to
pay all employees, who provide services pursuant to this Agreement, the hourly living wage rates,
based on the following three (3) year phase -in approach:
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• Commencing with City Fiscal Year 2010 -11 (October 1, 2010), the hourly living wage rate will
be $10.16 /hr with health benefits, and $11.41 /hr without benefits;
• Commencing with City Fiscal Year 2011 -12 (October 1, 2011), the hourly living wage rate will
be $10.72 /hr with health benefits, and $12.17/hr without benefits; and'
• Commencing with City Fiscal Year 2012 -13 (October 1, 2012), the hourly living rate will be
$11.28/hr with health benefits, and $12.92/hr without benefits.
For purposes of complying with the new Living Wage requirements by choosing to pay the lower
hourly rate, when a covered employer also provides health benefits, such health benefits shall '
consist of payment -of at least $1.64 per hour toward the provision of a health benefits plan for
covered employees and their dependents. Contractor's failure to comply with this provision shall be
deemed a material breach under this Agreement.
Equal Benefits Requirements:
THE FOLLOWING REQUIREMENTS SHALL APPLY TO THIS CONTRACT: Contractor by its
execution of "this Agreement, further acknowledges that it is required to comply with all applicable
.provisions of City Ordinance No. 2005 -3494, attached and incorporated as Exhibit "D" hereto and
as same may be amended from time to time, which requires certain Contractor to provide equal
benefits for domestic partners (the Ordinance). This Ordinance applies to all employees of
Contractor who work within the City limits of the City of Miami Beach, Florida', and the Contractor's
employees located in the United States, but outside of the City of Miami Beach limits, which are
directly performing work on a contract within the City of Miami Beach.
3.2 METHOD OF PAYMENT
Payment shall be made monthly to Contractor pursuant to daily,reports submitted by the City
for all meters collected. The City shall verify all records and any discrepancies shall be duly noted
and deducted from Contractor's invoice. City will process all approved invoices in a timely manner.
Contractor's and all required back -up documentation shalt be submitted to:
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City of Miami Beach Parking Department
1.756 Meridian Avenue, Suite 200
Miami Beach, Florida 33139
Attention: Saul Frances, Parking Director.
SECTION 4
GENERAL PROVISIONS
4.1 CONTRACTOR'S EMPLOYEES
Contractor will make ever, effort to obtain and hire personnel of the highest quality, caliber,
and integrity relative to each position required to perform the Services hereunder. All personnel
shall' have, at a . minimum, good command of the English language, and shall be qualified to
complete all daily assigned tasks and related duties. All personnel must be bonded and insured,
with.proof of same to be made available to the Project Coordinator upon request. Notwithstanding
the preceding, the City agrees that Contractor's bonding requirement may be satisfied as provided in
subsection 4.6.2 hereof.
Contractor's employees shall be employees of Contractor and shall not be considered
agents or employees of the City. Subject to the provisions of this Agreement, Contractor shall select
the number, function, qualifications, and compensation (including benefits as applicable) of each
and every one of its employees.
In its performance of the Services, the Contractor shall comply, and shall be solely
responsible for ensuring that its employees comply, with all applicable City, State, County, and
Federal laws and ordinances including, without limitation, applicable ordinances, codes, and rules
- and regulations of the City (including, without limitation, the Policies and Procedures); ADA; and
EEO Regulations and Guidelines.
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.4.1.1 Immediate Removal of Parking Meter Collectors:
The City reserves the right, to be exercised by the Project Coordinator in his /her sole and
reasonable discretion, to immediately require that the Contractor remove any meter collector(s),
and /or supervisor(s) within one (1) hour of notification thereof, whether written or verbal, by the
Project Coordinator to the Contract Manager, where the Project Coordinator has determined that
said employee(s) is unfit for the duties he /she is assigned, or is otherwise deemed unacceptable by
the Project Coordinator. Without limiting the foregoing, the Project Coordinator may deem an
employee unacceptable where, in his /her sole and reasonable judgment, he /she determines that an
employee is not providing the Services and /or performing in accordance with the standard of quality
and level of professionalism as would be commensurate with parking meter collectors /supervisors in
similar municipalities or government agencies. The Project Coordinator may, without limitation,
consider such factors as job knowledge; courtesy to the public; attendance; communication skills;
honesty and integrity; and /or capability as a meter collector, and /or supervisor (as the case may be).
4:2 PUBIC ENTITY CRIMES
Prior to commencement of the Services, Contractor shall file with the Office of the City Clerk
a State of Florida Form PUR 7068, Sworn Statement, under Section 287.133(3)(1), Florida Statutes,
(Public Entity Crimes).
4.3' CONTRACT MANAGER
Prior to commencement of the Services, Contractor shall appoint a trained and qualified
individual, acceptable to the City Manager, to serve as Contract Manager for the Services. The
Contractor Manager shall be fully responsible for the day -to -day activities under this Agreement, and
shall serve as the primary contact for the Project Coordinator. The City Manager, in his /her sole and
reasonable discretion, shall determine the Contract Manager's schedule. The Contract Manager
shall be fully funded and paid by the Contractor. Contractor further agrees that, within fourteen (14)
days written notice from the City Manager, Contractor shall promptly review and replace the Contract
Manager assigned to this Agreement, which request maybe made by the City .Manager with or
.without stating cause for same.
4.4 DURATION AND EXTENT OF AGREEMENT (TERM)
The initial term of this Agreement shall be for a period of three (3) .years, and shall be
deemed to have commenced retroactively on January 13, 2012 (Commencement Date), and shall
terminate on January 12, 2015.
At the City's sole option and discretion, and provided Contractor is in good standing pursuant
to the terms of the'Agreement, the City may renew the Agreement for one (1) additional two (2) -year
term, upon the same terms and conditions set forth herein, by providing written notice.to Contractor
no later than thirty (30) days before the expiration of the initial term.
4.5 INDEMNIFICATION
Contractor agrees to defend, indemnify and hold harmless, the City of Miami Beach and its
officials, officers, employees, contractors, and agents, from and against any and all actions, claims,
liabilities, losses, and expenses, including, without limitation, reasonable attorneys' fees, . for
personal, economic or bodily _injury, wrongful death, loss of or damage to property, in law or in
equity, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or
other wrongful conduct of the Contractor, and /or its 'officials, officers, employees, agents,
contractors, and /or any other person or entity acting under Contractor's supervision and /or control, in
connection with the Contractor's performance of the Services pursuant to this Agreement. To that
extent, Contractor shall pay any and all such claims and losses, and shall pay any and all such costs
and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay
all costs and attorneys' fees expended by the City in the defense of such claims and losses,
including appeals. The City make reasonable effort to provide Contractor with prompt written
notice of any claim that the City is itself put on notice of, and for which it seeks indemnity under this
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Agreement, so that Contractor may timely defend any such claim.
The parties agree that one percent (1 %) of the total compensation for the Services under this
Agreement is the specific consideration from the City to the Contractor for the Contractor's Indemnity
Agreement.
The parties acknowledge and agree that this indemnity Agreement is intended to and shall
survive termination and /or expiration of this Agreement.
4.6 INSURANCE ! BONDING REQUIREMENTS
4.6.1 Insurance Requirements:
4.6.1.1
The Contractor shall not commence the Services until all insurance required under this
Section has been obtained and such insurance has been approved by the City's Fisk Manager. The
Contractor shall maintain and carry in full force during the Term, or throughout the duration of the
Services, whichever period is longer, the following required insurance coverage:
1) Contractor General Liability, in the minimum amount of $1,000,000.00, subject to adjustment
.for inflation. An - original certificate of insurance evidencing the Contractor's (and any
sub- contrac'tor's) Insurance Policy must be filed and approved by the Risk Manager prior to
commencement of the Services. The City of Miami Beach, Florida, must be named as an
additional insured.
2) Workers Compensation & Employers Liability, as required pursuant to Florida Statutes.
3)'.. Automobile' Liability - $1,000,000 each occurrence - owned /non - owned /hired automobiles
included.
All of the limits of insurance required pursuant to this subsection 4.6 shall be subject to review by the
City Manager and, in connection therewith, Contractor shall carry,' or cause to be carried, such
additional amounts as he /she may reasonably require from time to time, but the City Manager may
not impose such new limits any more frequently than once in every two (2), year period from the
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Commencement Date. Any requests by the City Manager that Contractorr carry or, cause to be
carried additional amounts of insurance shall not be deemed reasonable uniess such additional
amounts are commonly carried in the case of similar services in South Florida of a size, nature and
character similar to the size, nature and character of the Seriices.
4.6.1.2
All of Contractor's certificates for any coverage required under this Agreement shall contain
endorsements providing that written notice shall be given to the City, through the Contract
Administrator, at least thirty (30) days prior to termination, cancellation or reduction in coverage in
the policy. The insurance must be furnished by insurance companies authorized to do business in
the State of Florida and approved by the City's Risk Manager. Original certificates of insurance for
the above coverage must be submitted to the City's Risk Manager. These certificates will be kept
on file in the office of the Risk Manager, City Hall, 1700 Convention Center Drive, 3rd Floor, Miami
Beach, Florida, 33139.
The Contractor shall also be solely responsible for obtaining, submitting, and maintaining
current and in full force, all - insurance for its subcontractors. This coverage shall be subject to
verification and other requirements for insurance, as required of Contractor's own required coverage
under this subsection 4.61.
4.6.1.3
All insurance ,policies must be issued by companies authorized to do business under the
laws of the State of Florida. The companies must be rated no less than "B +" as to management and
not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent (subject to the approval of the City's
Risk Manager).
4.6.1.4
Compliance with the insurance requirements in this Section, shall not relieve the Contractor
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of the liabilities and obligations under this Section or under any other portion of this Agreement
including, without limitation, Contractor's obligation to indemnify and hold the City harmless pursuant
to subsection 4.5 hereof". The City's Risk Manager shall have the right to obtain from Contractor
specimen copies of any required insurance policies in the event that submitted certificates of
insurance are inadequate to ascertain compliance with required coverage.
4.6.2 Bonding Requirements:
A Performance Bond, in the amount of $500,000.00, will be required of the Contractor to give the
City.surety of the Contractor's financial stability. The Performance Bond must be in full force and
effect throughout the Term. The form of the bond shall be approved by the City's Chief Financial
Officer, and shall be issued by a corporate surety bond company licensed to do business in the
State of Florida.
4.7 TERMINATION. SUSPENSION AND SANCTIONS
4.7.1 Termination for Cause:
If the Contractor shall fail to fulfill in a timely manner, or otherwise violates any of the terms,
conditions,, covenants, agreements, or stipulations in this Agreement; the City, through its City
Manager, shall have the right to terminate the Agreement and the Serjices then remaining to be
performed. Prior to exercising the option to terminate for cause the City Manager shall notify the
Contractor in writing of its violation of the particular term(s) of this Agreement, and shall grant
Contractor seven (7) days to cure such default. If such default remains uncured after seven (7)
days, the City Manager, may terminate this Agreement without further notice to Contractor.
Notwithstanding the above, the Contractor shall not be relieved of liability to the City for
damages sustained by the City by virtue of any Agreement breach, error, or omission by Contractor.
Additionally, the City may reasonably withhold payments to the Contractor for the purposes of set-
off until such time as the exact amount of damages due the City from the Contractor is determined.
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4.7.2 Termination for Convenience of the City
NOTWITHSTANDING THE LANGUAGE IN SUBSECTION 4.7.1, THE CITY (THROUGH
ITS CITY MANAGER) MAY, FOR ITS CONVENIENCE AND WITHOUT CAUSE, TERMINATE THIS
AGREEMENT AND THE SERVICES THEN REMAINING TO BE PERFORMED AT ANY TIME BY
GIVING THIRTY (30) DAYS WRITTEN NOTICE TO CONTRACTOR OF SUCH TERMINATION,
WHICH SHALL BECOME EFFECTIVE AS OF THE DATE SPECIFIED IN THE NOTICE TO
.CONTRACTOR.
4.7.3 Termination for Insolvency:
The City. also reserves the right to terminate the Agreement and the remaining Services to be
performed in the event the Contractor is placed either in voluntary or involuntary bankruptcy or
makes an 'assignment for the benefit of creditors. In such event, the right and obligations for the
parties shall be'the same as provided for in Section 4.7.2.
•4.8 ASSIGNMENT. TRANSFER OR SUBCONTRACTING
The Contractor shall not subcontract, assign, or transfer any work under this Agreement
without the prior written consent of the City Commission which consent, if.given at all, shall be at the
Commission's sole and reasonable discretion.
4.9 AUDIT AND INSPECTIONS
At any time during normal business hours, and as often as the City Manager may deem
necessary during the Term hereof, Contractor shall make available to the City Manager and/or such
representatives as he /she may deem to act on his /her behalf, to audit, examine, inspect, and /or
copy, any and all records and documents of Contractor's related to the Services and any other
matters covered by this Agreement including, without limitation, all contracts, invoices, payrolls,
records of personnel, conditions of employment, and such other data, records, documents, and /or
materials as may relate to the Services and any other matters covered by this Agreement
(collectively, the Records). 'Contractor shall maintain any and all such Records throughout the Term,
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and for a period of three (3) years after expiration of the Agreement and /or the conclusion of the
Services (whichever is later),
4.9.j Access to Records:
Contractor agrees to allow the City Manager, and /or such authorized representatives as
he /she may deem to act on behalf of the City, access during normal business hours to all Records
pertaining to. this Agreement and the performance of the Services, and agrees to provide such
assistance as may be necessary to facilitate audit (whether financial or otherwise) and /or inspection
by the City Manager, or his /her representatives.
4.9.2 Contractor shall bind any of its sub- contractors performing any portion of work and /or
services under this Agreement to the provisions of Sections 4.9 and subsection 4.9.1 hereto.
,4.9.3 Annual Performance Evaluation and Audit:
It is the parties' intent to stay informed of comments and suggestions by the City regarding
Contractor's performance under this Agreement. Accordingly, within thirty (30) days after the end of
each contract year during the Term, the City Manager and Contractor shall meet to review and
evaluate Contractor's performance under the Agreement for the previous contract year, following
which a detailed written report/performance evaluation shall be prepared and presented by the City
Manager to the City Commission either (at the Manager's election) as a report submitted to the City
Commission pursuant to a regular Commission agenda, or via Letter to Commission format.
4.10 EQUAL EMPLOYMENT OPPORTUNITY
In connection with the performance of the Services, the Contractor shall not discriminate
against any employee or applicant for employment because of race, color, religion, ancestry, sex,
age, national origin, place of birth, marital status, sexual orientation, gender identity or disability.
The Contractor shall take such action as may necessary to ensure that applicants are employed
and that employees are treated during their employment without regard.to their race, color, religion,
ancestry, sex, age, national origin, place of birth, marital status, sexual orientation, gender identity,
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or- disability. '
4.10.1 Sanctions for Noncompliance with Nondiscrimination Provisions
In the event of Contractor's noncompliance with the nondiscrimination provisions of.this
Agreement, the City shall impose such sanctions as the City, or the State of Florida, may determine
to be appropriate - including, without limitation, withholding of payments to the Contractor under the
Agreement until the Contractor complies, and/or cancellation or termination of the Agreement (and
of the Services). In the event the City cancels or terminates the Agreement, pursuant to this
subsection, the right } d- abligations of the parties shall be the same as provided in Section 4.7. 1.
4.11 CONFLICT OF INTEREST
The Contractor agrees to adhere to and be governed by the Miami -Dade County Ethics and
Conflict of Interest laws, as same may be amended from time to time, and by the City of Miami
Beach Charter and Code, as same may be amended from time to time, in connection with the
performance of the Services.
The Contractor covenants that it presently has no interest and shall not acquire any interest,
direct or indirectly, which would conflict in any manner or degree with the performance of the
Services. The Contractor further covenants that in the performance of this Agreement, no person
having any such interest shall knowingly be employed by the Contractor.
4.12 NOTICES
All communications relating to the day -to -day activities .under the Agreement shall be
exchanged between the Contract Manager appointed by Contractor and the City's Project
- Coordinator. The Contract Manager and Project Coordinator shall be designated by the parties, in
writing, no later than the Commencement Date. Any subsequent replacements shall also be
designated in writing_
All other notices and communications in writing required or permitted hereunder may be
delivered personally to the representatives of the Contractor and the City listed below or may be
18
mailed by registered mail, prepaid (or air - mailed if addressed to an address outside of the
city of dispatch).
Until changed by notice in writing, all such notices and communications shall be addressed
as follows:
TO CONTRACTOR: SP Plus Municipal Services, 'a division of
Standard Parking Corporation
901 South Miami Avenue, Suite 303
Miami, .FL 33130
Attention: Chester Escobar-, Regional Manager
WITH COPIES TO: SP Plus Municipal Services, a division of
Standard' Parking Corporation
1301 East 9th Street, Suite 1050
Cleveland, OH 44114
Attention: James Stevenson, Senior Vice President
and*
SP Plus Municipal Services, a division of
Standard Parking Corporation
900 North Michigan. Avenue, Suite 1600
Chicago, IL 60611
Attention: Legal Department
TO CITY: City of Miami Beach
Office of the City Manager
1700 Convention Center Drive, 4th Floor
Miami Beach, FL 33139
(305), 673 -7010
Attn: Jorge M. Gonzalez, City Manager
and
City of Miami Beach Parking Department
1755 Meridian Avenue, Suite 200
Miami Beach, FL 33139
(305) 673 -7000, extension 6483
Attn: Saul Frances, Parking Director
WITH COPIES TO: City of Miami Beach
Office of the City Manager
1700 Convention Center Drive, 4 th Floor
Miami Beach, FL 33139
Attn: Jorge G. Gomez, Assistant City Manager
19
Notices hereunder shall be effective:
If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day
following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day
following the date mailed. _
4.13 GOVERNING LAW AND EXCLUSIVE VENUE
This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Florida, both substantive and remedial, without regard to principles'of" conflict of laws. The
exclusive venue for any litigation arising out of this Agreement shall be Miami -Dade County, Florida,
if in State court,. and the U.S. District Court, Southern District of Florida, if in federal court. BY
ENTERING INTO THIS AGREEMENT, CONTRACTOR AND CITY EXPRESSLY WAIVE ANY
RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
4.13:1 If a dispute arises out of, or related to, this Agreement, or the breachL thereof, and if, the
dispute cannot be settled through negotiations, the parties agree first to try in good faith to settle the
dispute by mediation administered by the American Arbitration Association, or other similar
alternative dispute resolution organization, person or source agreeable to the parties, before
resorting to litigation or other dispute resolution procedure.
4.14 COMPLIANCE WITH ALL APPLICABLE LAWS
The Contractor, its officials, officers, employees, contractors, and agents shall comply with all
applicable Federal, State and County laws; the Charter, related laws, Code, and ordinances of the
City of Miami Beach; the Policies and Procedures; and any and all applicable rules and regulations
promulgated by local, State and national boards, bureaus and agencies as they relate to this
Agreement.
20
4.15 EMPLOYEE /SUB- CONTRACTOR SKILL. KNOWLEDGE AND EXPERIENCE
The Contractor represents that it has made, and will continue to make, reasonable
investigation of all employees to be utilized in the performance of the Services, to determine that all
possess the requisite skill, knowledge, and experience necessary to enable them"to perform their
respective work and /or portion of the Services, in accordance with the level of service and quality
associated with the operation of similar municipalities or government agencies. Notwithstanding the
preceding, or any other term or condition of this Agreement, Contractor shall be primarily and solely
responsible to the City for the performance of the'Services under this Agreement.
4.16 LIMITATION OF CITY'S LIABILITY
The City desires to enter into this Agreement only if in so doing the City can place a limit on
its liability for any cause of action for money damages due to an alleged breach by the City of this
Agreement, so that its liability for any such breach never exceeds the total amount of $50,000, less
any sums actually paid thereon by the City to Contractor (in consideration of any Services
satisfactorily rendered). Contractor hereby expresses its willingness to enter into this Agreement
with Contractor's recovery from the Cityfor any damage action for breach of contract to be limited to
a maximum amount equal to $50,000, less the amount of all funds actually paid by the City to
Contractor pursuant to this Agreement.
Accordingly, and notwithstanding any other term or condition of this Agreement, Contractor
hereby agrees that the City shall not be.liable to the Contractor for damages in an amount in excess
$50,000, which amount shall be reduced by such amounts actually paid by the City to Contractor
pursuant to this Agreement, for any action,or claim for breach of obligations imposed upon the City
by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any
way intended to be a waiver of the limitation placed.
21
4.17 NO PARTNERSHIP
Nothing in this Agreement shall constitute or be construed to be or create a partnership or
joint venture between City and Contractor.
4.19 MOST FAVORED CUSTOMER
The Contractor warrants and represents to the City that the prices, warranties, benefits and
terms set forth in this Agreement shall be at least equal to (or more favorable to the City than) the
prices, warranties, benefits and terms now charged or offered or offered by Contractor in the State
of Florida, or that may, be charged or offered during the Term of this Agreement by Contractor in
Florida, for the same or substantially similar services as provided in this Agreement.
If at any time during the Term, Contractor enters into another agreement in Florida, for the
same or substantially similar services as provided in this Agreement, on a basis that provides prices,
warranties, benefits and term more favorable than those provided to the City hereunder, then
Contactor shall, within thirty (30) calendar days thereafter, notify the City of such fact, and
(regardless of whether such notice is sent or received by Contractor or received by the City) this
Agreement shall be deemed to be automatically amended, effective retroactively to the effective
date of the more favorable agreement, to provide the same prices, warranties, benefits and terms to
the City; provided that the City shall have -the right and option to decline to accept any such change,
in which event such amendment shall be deemed null and void.
4.19 ENTIRETY OF AGREEMENT
This writing, the Services, the Proposal Documents, and any exhibits and attachments
hereto, are intended to embody the entire Agreement and understanding between the parties „
hereto, and there are no other agreements and understandings, oral or written with reference to the
subject matter hereof that are not merged herein and superseded hereby.
No alteration, change, or modification of the of this Agreement shall be valid unless
amended in writing, signed by both parties hereto, and approved by the City.
22
IN WITNESS WHEREOF, the parties hereto have caused this ngreernent to be executed by
their appropriate officials, as of the date first entered above.
CA
FOR CITY: ' �Q�.. "' Y OF MIAMI BEACH, FLORIDA
ATTEST: * INCORP oRATED'
. CH 26
By: By:
Rafael E. Granado tti errera ow
City Clerk j Mayor
FOR CONTRACTOR: SP PLUS MUNICIPAL SERVICES, a division of
STANDARD PARKING - CORPORATION
ATTEST:
By: i By: wiett'—
Warshauer
� - Executive Vice- President
Print Name/Title
f. pingl$ man lr arlagreemenflmetercollection- standardagreement- 2011 - final. doc
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
23 City Alt " (r Data
�' J
Exhibit «A»
Request for Proposals No. 43 -10/11
and
SP Plus Municipal Services. Proposal
(See attached)
24
Exhibit "B"
City of Miami Beach Parking Department
Policies and Procedures for Meter Collection services
(See attached)
25
"C"
Exhibit
-
City of Miami Beach Living Wage Ordinance
(See attached)
26
ORDINANCE NO. 2010 -3662
AN ORDINANCE OF THE MAYOR AND .CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 2 OF THE CITY CODE,
ENTITLED, "ADMINISTRATION;" BY AMENDING ARTICLE VI THEREOF
ENTITLED, "PROCUREMENT ", BY AMENDING DIVISION 6 ENTITLED
"LIVING WAGE REQUIREMENTS FOR SERVICE CONTRACTS AND CITY
EMPLOYEES ", SECTIONS 2 =407 THROUGH 2-410 THEREIN;
AND PROVIDING FURTHER FOR CODIFICATION, SEVERABILITY, AND AN
EFFECTIVE DATE.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI, BEACH, FLORIDA:
SECTION 1.
That Chapter 2, Article VI, Division 6, Sections 2 -4 07 through 2-410, of the Code of the City of
Miami Beach, Florida, is hereby amended as follows:
DIVISION 6. LIVING WAGE REQUIREMENTS FOR SERVICE CONTRACTS AND CITY
EMPLOYEES
Sec. 2-407. Definitions.
City means the ' government of Miami Beach or any authorized agents, any board,
agency, commission, department, or other entity thereof, or'any successor thereto.
Covered employee means anyone employed by the city or any service contractor, as
further defined in this division, either full or part time, as an employee, with or without benefits er
Covered employer means the city and any and all service contractors, whether
contracting directly or indirectly with the city, and subcontractors of a service contractor.
Health benefits shall, at a minimum mean health insurance coverage which consists of
wellness and preventive care. including maternity, and that meets the' "requirements of a
"standard health benefit plan" as defined in Subsection 627 6699(12)(b)(4) Florida Statutes as
may be amended from time to time_
Service contractor is any individual, b6s;-ess- - t+ty; corporation (whether for profit or
not for profit), partnership, limited liability company, joint venture, or s4n4ar business enti
who is conducting business in Miami Beach, , and who is either meets
a- P -paid in whole or part from one or more of the city's general fund,
capital project finds, special revenue funds, or any other funds eithe
d , whether by competitive bid process, informal bids,
requests for proposals, some form of solicitation, negotiation, or
agreement, or any other decision to enter into a contract; or
l}2. €- engaged. in the business of, or part of a contract to provide, or a
subcontract to provide, services, ai>l
di64 -OF -i; d ir Y for the benefit of the city. However, this does not
apply to contracts related primarily to the sale of products or goods.
Covered services are the type of services purchased by the city that are. subject to the
requirements of this division which include the following:
(1) City service contracts. Contracts involving the city's expenditure of over
$100,000.00 per year and which include the following types of services:
a. Food preparation andlor distribution;
b. Security services;
c. Routine maintenance services such as custodial, cleaning,
sGITIpwte%, refuse removal, repair, refinishing, and recycling;
d. Clerical or other non- supervisory office work, whether temporary or
permanent;
e. Transportation and parking services;
f. Printing and reproduction services;
g. Landscaping, lawn, and or agricultural services; and
h. Park and public p+ase rp opert✓ maintenance.
(2) Should any services included in subsection 1(a) - (h) that are being
performed by city employees at the time this division is enacted be solicited in
the future by the city to be performed by a service contractor, such services shall
be covered services subject to this division.
Sec. 2 -408. Living wage.
(a) Living wage paid.
(1) Service contractors. A4Any service contractor S, ,
I` entering into a covered services contract with the city shall pay to all its
employees who provide services covered by this division, a living wage of no less
than $4- 49 11.28 an hour with health benefits, or a living wage of not less than
$8- 84 12.92 an hour without health benefits,
(2) Phas Effective October 1. 2010, the living wage in
subsection (a) will be implemented on a
'
phase -in basis beginning in the 2994 '2 city
2
i
budget year, increasing on an annual basis incrementally so that the living wage
is fully implemented for Gity covered employees in the 2003 -- X884 -2013
cite budget year'
TheFeafte;, the living wage to be paid by the Gity tG' 46 eMplayees 6hall riot 1;9
(b) Health benefits; eligibility period. Fora covered employer or the city to comply with
the living wage prsieA reguirements of this division by choosing to pay the lower wage scale
available when a covered employer also provides health benefits, such health benefits shall
consist of payment of at least $4- 24 1.54 2 per hour toward the provision of a health benefits plan
.for covered employees and their dependents,
If the health benefits plan of t4ea covered employer ef-the -city requires an initial period
of employment for a new employee to be eligible for health benefits (eligibility period) the living
wage praVisiGA rgguirements of this division shall be deemed to .be been complied with
during the eligibility period, provided the covered employer aF the Gity commences to pay a the
applicable living wage rate without health benefits , effective as of
-the date of hire of-the covered employee.
Upon completion of the eligibility period, and provided the new employee will be
provided health benefits, a covered employer may commence to pay the .
sdale applicable living wage rate with health benefits
Proof of the provision of health benefits must be submitted to the i' 's
procurement director to qualify for the wage rate for employees with health benefits.
(c) Annual Open EnrollmentlElection of Benefits. If a covered employee is
being paid the hourly living wage rate with health benefits and elects• during such period of time
(but no less than once during the covered employer's fiscal year) on which the covered
employer permits its 'employees an opportunity to change their health benefits plan coverage
(hereinafter such election .period shall be referred to as the "annual open enrollment period ") to
no longer continue receiving coverage under the employer's health benefits plan then --
notwithstanding the covered employer's continuing to offer a health benefits plan' to employees
—.the covered employee (electing out of coverage during the annual enrollment period) shall by
the next pay Reriod: be paid the applicable hourly living wage rate without health benefits. The
covered employer may. in its reasonable judgment and discretion. determine the length of time
Using the iproposed three (3) year phase -in, commencing with city fiscal year 2010 -11 (October 1
2010), the living wage rate will be $10.16/hr. with health benefits, and S11 41 /hr without benefits .
commencing with city fiscal year 2011 -12 (October 1, 2011), the living wage rate will be $10 72 /hr with
health benefits. and $12.17 without benefits; and commencing with city fiscal year 2012 -13 (October 1
2012) the living wage rate will be $11.28 /hr with health benefits, and $12.92/hr without benefits.
2 Using the proposed three (3) year phase -in pursuant to Section 2- 408(2), commencing with city fiscal
year 2010 -11 (October 1 2010) the health benefits rate will be at least $1 25 /hr commencing with city
fiscal year 2011 -12 (October 1, 2011), the health benefits rate will be at least S1.45/hr, and commencing
with city iscai year 2012 -13 (October 1. 2014, the health benefits rate will'at least $1.641hr.
3
for the annual open enrollment period; may require employees to complete and return a benefits
election form; and, in the event that a covered employee does not complete and return such
election form. to the covered emplovee during the prescribed time of the annual open enrollment
Period, then the covered employer may treat the covered employee as having elected to
continue with the health plan benefits coverage (then in effect) and,- accordingly, may continue
to oav the covered employee the applicable hourly living wage rate with health benefiits
(pis) Indexing: The living wage rate and health care benefits rate will mav, by resolution
of the cit ",/ commission be autamatiea4y indexed l� annually for inflation using the Miami
PMSA Consumer Price Index for all Urban Consumers'(CPI -U) Miami /Ft. Lauderdale issued by
the U.S. Department of Labor's Bureau of Labor Statistics.
Notwithstanding the preceding, no annual index shall exceed three percent (3 %); nor shall an
annual increase exceed the corresponding annual compensation increase (if any) provided` to
unrepresented (i.e. unclassified) city employees. The dity commission may also by resolution
elect not to index the living wage rate in anv particular year, if it determines it would not be'
fiscally sound to implement same the - GPI -W jin a particular yearl. The determination to index (or
not index) the living wage rate shall be considered annually during the city commission's review
and approval of the cit`r's annual operating budget.
In the event that the city commission has determined" in anv particular fiscal year (or
years), to not index the living wage rate, and thereafter determines that making up all or anv
part of the prior year's (or years') unihdexed percentage would. not have an adverse fiscal
impact upon the City. then the city commission shall also have the right but not the obligation
to cumulatively index the living wage rate to "make -up" for any-deficiencies-in the-prior-year-(-o
. years) where there was (were) no increase(s) (the "catch up" election). The "catch -up" election
must be approved by resolution and may only be considered during the city commission's
review and approval of the city's annual operating budget.
Led) Certification required before payment. Any and all contracts for covered services
shailmay be void and no funds may be released, unless prior to entering any agreement
with the city for a covered services contract, the empleyef contractor certifies to the city
that it will pay each of its covered employees no less than the living wage described in section
2- 406(a). A copy of this certificate must be made available to the public upon request. The
certificate, at a minimum, must include the following:
(1) The name, address, and phone number of the covered employer, a.local
contact person, and the specific project for which the covered services contract is
sought;
(2) The. amount of the covered services contract a brief description of the
proiect or service provided, and the city department the contract will serve;
(43) A. statement of the wage levels for all employees; and
(541) A commitment to pay all covered employees athe living wage, as defined .
by section 2- 408(a) and including. without limitation any annual indexes thereto
(as provided in section 2- 408(d)
(fe) Observation of other laws. Every covered employee shall be paid not Less than
biweekly, and, without subsequent deduction or rebate on any account (except as such payroll
deductions as are directed or permitted by law or by a collective'�bargaining agreement). The
covered employer shall pay covered. employees wage rates in acccrdance with federal and all
other applicable laws such as overtime and similar wage laws.
(g� - Posting. A copy of the most current living wage rate shall be kept posted by the covered -
employer at the site of the work in a prominent place where it can easily be seen and read by
the covered employees, and shall also be supplied to thean amployba within a reasonable time
after a request to do so. Posting requirements will not be required where the covered employer
prints the following statements on the front .of the covered employee's first paycheck and every
six (6) months thereafter: "You are required by City of Miami Beach law to be paid at least $&454
dollars NOTE: Covered emplover to insert applicable living wade ratel hour. If you are
not paid this hourly rate, contact your employer,. an attorney, or she City of Miami Beach." All
notices will be printed in English, Spanish, and Creole.
(hg) Collective bargaining. Nothing.in this division shall be read to require or authorize
any covered employer to reduce wages set by a collective bargaining agreement or areas
required under any prevailing wage law.
(i) Tip credit exemption. For a covered employee who regularly receives tips or
gratuities (hereinafter "tips ") as part of his/her pay, a covered employer will be exempt from
payment of the applicable hourly living wage rate for such employee provided that the following
requirements are met:
1. In order to qualify for the exception, the covered employer must claim a "tip
credit" under the federal Fair Labor Standards Act (FLSA)•
2. The exception shall only apply to covered employees who receive tips as
part of their compensation (i.e. waiters, bartenders, hostesses busboys etc.):
3. The covered employer shall be solely responsible for assuring that all tipped
covered employees meet the eligibility requirements for the tip credit under the
FLSA: ,
4. The covered employer may only credit toward satisfaction of the applicable
hourly living wage requirement, "tips up to the maximum amount of the allowable
tip credit: and
5. The covered employee's tips plus direct hourly wage combined must add up
to at least the applicable hourly living wage rate. .
Notwithstanding anything in this subsection, tipped covered employees must receive at
least the applicable hourly living wage rate when their direct wages and tips are combined
5
Sec. 2 -409. Implementation.
(a) Procurement specifications. The living wage shall be required in the procurement
specifications for all covered services contracts on which bids or
proposals shall -beare solicited on or after the effective date of this division. The procurement
specifications shall include a requirement that service
contractors and their subcontractors agree to produce all documents and records relating to
pay_rolt and compliance with this division upon request from the city /. All covered service,
contracts awarded subsequent to the date when this division becomes effective, shall be subject
to the requirements of this division.
All procurement
specifications for citv covered services contracts shall include
appropriate information about the requirements of this division.
(a�) Maintenance of payroll records. Each covered employer shall maintain payrolls for
all covered employees and basic records relating thereto, and shall preserve them for a period
of three (Lyears or the term of the covered services contract, whichever is greater. The records
shall contain:
(1) The name and address of each covered employee;
(2) The job title and classification;
(3) The number of hours worked each day;
(4) The gross wages earned and deductions made;
(5) Annual wages paid;
(6) A copy of the social security returns and evidence of payment thereof;
(7) A record of fringe' benefit payments including contributions ' to approved
plans; and
(8) Any other data or information this division should require from time to time.
(4c Reporting payroll. Every six LqLmonths, the covered employer shall file with the.
2L 'a procurement director a complete payroll showing the covered employer's payroll records
for each covered employee working on the covered services contract for
one payroll period. Upon request, from the city, the covered employer shall produce fef
its payroll records for any or all of its covered employees for any period
covered by the covered services contract. The city may examine inspect, andlor copy such
payroll records as needed to ensure compliance with the requirement of this division
Sec. 2-410. Compliance and enforcement.
(a) Service contractor to cooperate. The service contractor shall permit the city
eFnp!Gyeee ageRtS 91 , enrec —tatiye to observe work being performed at, in,._or on the project ep.
or matter for which the avered services contract was issued The city
f2 itatives may examine the books and records of the service contractor relating to the
6 .
employment and payroll to determine if the service contractor is in compliance with the
provisions of this division.
(b) Complaint procedures and sanctions.
(1) AP covered employee or former covered employee, who believes that this
division applies &� to him or her and that a the sePAGe GaRtFaGtGFcovered
employer eF- the -Gib is GF was not complying with the requirements of this
division_ has a right to file' a- administrative compiaint wit" the pFaG+
iFeat- F- aft?e city procurement director Any individual or entity may also file a
complaint - with the procurement director of the city on behalf of covered
employee for investigation by the city.
2) - Complaints by employees of alleged violations shall be made in writing
within one O Y year after the alleged violation occurred. No complaint shall be
within the iurisdiction of the city under the administrative complaint procedures in
this division if the complaint is filed more than one (1) year after the alleged
violation practice occurred.
(3) The complaint shall be signed by the person making the complaint
(hereinafter, the "complainant") and, if the complainant is not the covered
employee; by the covered employee as well, shall be sworn to or affirmed: and
shall, at a minimum, state the full name and address of the complainant the full
name and address of the covered employer against whom the complaint is being
made (hereinafter, the "respondent "); the facts upon which the complaint is
based: and such other information as may be required by the city. The complaint
may be filed by personal delivery, ordinary mail, or certified mail, addressed to
the city's procurement director may be rude at hall be
inverAgated within 20 days by the Gity. - WFe#eR and GFal statements by an
' the
I
(_43) It shall he the The city procurement director shall notify
the covered employer named in the complaint (the "respondent ") by providing
the employer with a copy of the complaint by certified mail or personal delivery.
Within thirty (30) working. days after a copy of the complaint has been served
upon_ the respondent by the procurement director, the respondent may file an
answer thereto. If an answer is filed, the answer shall be in writing and contain,
at a minimum, a separate and specific response to each and every particular of
the complaint, or a denial of any knowledge or information thereof, sufficient to
form a belief. Any allegation of the complaint which is not denied shall be
deemed admitted.
(5) If an answer is filed, the procurement director shall cause a copy of the
answer to be served on the complainant. If the respondent elects not to answer
the complaint, then the matter shall proceed on the evidence in support of the
complaint.
( Whenever a verified written complaint is filed pursuant to this division the
procurement director shall make a 'prompt investigation of to investigate all
allegations of violations in connection therewith and forward to the city manager
a written summary of the investigation 4 this- divisiep within 3G60 days after he
complaint is filed If, at any time, the Gity, upon his /her review of the complaint,
answer (if fled), and investigation_ the city manager determines that a violation of
this division has occurred, it cit`J shall, within te-A 30 working days of a
finding of noncompliance, issue a notice of corrective action in writing, of the
respondent, empleyef specifying all areas of noncompliance and deadlines for
resolutions of the identified violations. A copy of the city manager's notice of
corrective action shall be sent to the complainant and the respondent by certified
mail, return receipt requested, or by hand delivery.
(7) If a esoon,dent fails to comply with any or all of the
resolutions for the identified violations, within the deadlines provided in the
notice, -issa, the city manager OF th9 Gity Fnapageos designee may issue an
orders in writing to the espondent by certified mail or hand
delivery, notifying the espondent to appear at an
administrative hearing before esigRee
one of the city's sitting special masters, to be held at a time to be fixed in such
order, A copy of
the order shall also be sent to the complainant by certified mail or hand delivery.
(8) The city manager shall also provide a written report to the city
commission, informing them of the complaint, which report shall include a brief
summary of the facts at issue, the results of the city's investigation, and - the
recommended administrative disposition of the complaint (including any finding of
non- compliance and subsequent recommendation for corrective action).
(4T The hearing p roceedings shall be informal, la-utand shall afford the safvisra
sea respondent the right to testify in his /her the--S-3FViG__- GG1#FaGtGF'G own
defense, present witnesses, be represented by counsel, submit relevant
evidence, cross examine witnesses and object to evidence.
{51) The proceedings shall be recorded and minutes kept by the city. Any
espondent requiring verbatim minutes for judicial review may
arrange for the services of a court, reporter at the expense of the seFuise
GGA#aGtGrF
(6,11 ) Withill teR days-GfUpon the close of the hearing, the
special master ' , shall render 'a decision in writing
determining whether or not the seFviGe GonUaGtafLtespondent is in compliance or
whether other action should be taken,. or whether the matter should be
continued, as the case may be,. and stating the reasons and findings of fact.
(7 The city
the Gity- clerk, and shall send a true and correct copy of #isthe order by certified
mail, return receipt requested, or by hand delivery, to the
respondent and complainant
8
(413) The -ity mapage special masters sae findings shall constitute
the final administrative action of the city for purposes of judicial review under
state law. An aggrieved party, including the city administration, may appeal a
final administrative order of a special master to the circuit court, in accordance
with Section 30 -77 hereof.
(€3L4� If a resoondent fails to seek timely appellate review of
an order of the special master , or to
comply timely with such order, the city may pursue the enforcement of sanctions
set forth in section 2- 410(c).
(c) Private right of action against covered emplover Any covered
employee Gf or former covered employee of a service contractor may, instead of but not in
addition to, utilizing the scity administrative complaint procedures set fai;## in section 2- 410(bA
, bring an action to enforce the provisions of this
division by filing suit against the covered employer in any court of competent jurisdiction-4G
fees,
and casts. Upon a finding by a court of competent iurisdiction that a covered employer
unlawfully withheld wages under this division, such covered employee shall be entitled to an
award of unpaid or underpaid wages_, to reasonable costs and attorneys fees and in addition to
liquidated damages in a sum equal to twice the amount of wages the covered emolover'is found
to have unlawfully withheld in order to compensate the covered employee for the economic
dosses they suffered by reason of not receiving their wage at the time it was due and in order to
deter future noncompliance by the covered employer. The applicable statute of for
such a claim will be two Lahyears as provided in er ection 95:11(4)(c) Florida Statutes, as
same may be amended from time to time, for an action for payment of wages. T-1016 GaW May
{2}(d) Sanctions against service contractors. For violations of this division, the city shall
sanction a service contractor by requiring the service contractor to pay wage restitution at the
emp!Gyefs contractor's expense for each the affected covered employee and may also aseess
the - felte>g the following actions
(1) The city may impose damages for
each week that the covered employee was found to have not been paid in
accordance with this division; and /or
(2) The city may suspend ar- t&minate payment under the covered services
(, contract and / or terminate the contract with the service contractor; and /or
(3) The city may declare the eef service contractor ineligible for future
service contracts for u to three Lyears or until all penalties -and restitution
hawehas been paid in, full to the covered employee and all penalties (if anvil paid
to the city whichever is longer - 'and/or !R addit all eFRp!GyeF:; shall he
9
In order to. compensate the city for the costs of investigating and
remedvir_g the violation, the city may also order the violating covered employer to
pay the city's reasonable costs (for investigating and defending the complaint
and remedying the violation). Such funds shall be allocated and used to offset
the -costs of implementing and enforcing this division.
(e) Public record of sanctions. All such sanctions recommended or imposed shall be a
matter of public record.
(f) Sanctions for aiding and abetting. 'The sanctions in section 2- 41 0(e�) shall also
apply to any party or parties aiding and abetting in any violation of this division.
(g) Retaliation. and discrimination barred. A* covered employer shall not discharge,
reduce the compensation of , or otherwise discriminate or take adverse action against any :
covered employee in retaliation for exercising the rights protected under this division including
without limitation, making a complaint to the city, s under
this division or informing any person about any party's alleged non - compliance with this
division; or informing any person of his or her potential rights under this division and to assist
him /her in asserting such rights. Protections under this subsection (g) shall apply to any person
who mistakenii but in good faith, alleges non - compliance with this division Taking adverse -
action against a person within ninety (90) days of the person's exercise of rights protected under
this division shall raise a rebuttable presumption of having done so in retaliation for the exercise
of such right
division. Allegations of retaliation or discrimination, if found true. 1 R a
shall result in an order of restitution and reinstatement of a discharged covered employee with
back pay to the date of the filing of the complaint with the city
deemed appr-ep�ate.
(h) Enforcement powers. If necessary for the enforcement of this division, the city
commission may issue subpoenas, compel.the attendance and testimony of witnesses and -
production of books, papers, records, and documents relating to payroll records necessary for
hearing, investigations, and proceedings. In case of disobedience of the subpoena, the city
attorney may apply to a court of competent jurisdiction for an order requiring the attendance and
testimony of witnesses and production of books, papers, records, and documents. Said court, in
the case of the refusal to obey such subpoena, after notice to the person subpoenaed, and
upon finding that the attendance or testimony of such witnesses of the production of such
books, papers, records, and documents, kas the case may bed is relevant or necessary for such
hearings, investigations, or proceedings, may issue an order requiring the attendance or
testimony of such witnesses or the production of such documents, and any violation of the
court's order may be punishable by the court as contempt thereof.
(i) Remedies herein nonexclusive. No remedy set forth in this division is intended to be
exclusive or a prerequisite for asserting a claim for relief to enforce theAghts under this division
in a court of law. This division shall not be construed to limit an employee's right to bring a
common law cause of action for wrongful termination provided, however, that if a complainant
has previously initiated, or initiates, a civil action in a court of competent jurisdiction alleging a
violation of this division; or other matter, with respect to the same - grievance which is the subiect
of an administrative complaint pursuant to this division, then the administrative complaint shall
not be (or shall no longer be as the case may be) within the jurisdiction of the city under the
administrative complaint procedures established herein.
10
SECTION 2. SEVERABILITY,
If any section, sentence, clause or phrase of this ordinance is held to be invalid or
unconstitutional, by any court of competent jurisdiction, then said holding shall in no way affect
the validity of the remaining portions of this ordinance.
SECTION 3. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and. be made a part of the
Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or
relettered to accomplish such intention, and the word "ordinance" may be changed to "section ",
"article," or other appropriate word.
F
SECTION 4. EFFECTIVE DATE.
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this fl* day of , 2010.
ATTEST:
MAYOR "
CITY CLERK
F:\atto\AGUR\RESOS -0RD \Living Wage ordinance - Amendment (Second Reading 6- 9- 10).docx
APPROVED AS TO
F6RM & LANGUAGE
& *00A EXECUTION
e ate
COMMISSION ITEM SUMMARY
Condensed Title:
An Ordinance Of The Mayor And City Commission Of The City Of Miami Beach; Florida, Amending
Living Wage Requirements For Service Contracts" And City Employees. SECOND AND FINAL
READING.
Key Intended Outcome Supported:
International Center for Innovation in Culture, Recreation and Business
Supporting Data (Surveys, Environmental Scan, etc.: 17% of business respondents felt that Miami
Beach was the best place to run a business, 25% felt that it was an above average place to run a
business and 41% felt that it was an average place to run a business. Also, 62% of business
respondents would recommend Miami Beach to others as a place to run a business
Issuer
Shall the City Commission adopt the amendment to the Living Wage Ordinance?
Item Summa /Recommendation:
The Mayor and City Commission, at its May 12, 2010 meeting, approved on first reading, an Ordinance
amending the City's Living Wage requirements for certain service contracts ( "covered. contracts ")..
The only revisions to the Ordinance - between First and Second Reading are as follows:
1. Section 2- 408(c): The phrase "as soon as reasonably practicable" was deleted, and
replaced with "by the next pay period."
2. Section 2- 408(i): An "exemption was added for a covered employee who regularly receives
tip or gratuities as part of his/her pay provided that the service contractor complies with the
requirements set forth in Section 2- 408(i).
In addition to the review of the Finance and Citywide Projects Committee, the attached' Ordinance was
also reviewed.by` representatives of the SEIU Labor Union and their Counsel, and their comments have
been incorporated.
It is important to note that the Fiscal Impact Analysis does not consider any ripple effect as a result of
payroll. compression (i.e. a similar percentage or dollar per hour increase for employees who currently
earn in excess of the proposed living wage rates) but did include FICA at 6.20% and MICA 1.45 %.
ADOPT ORDINANCE ON SECOND AND FINAL READING. ;
Advisofy Board Recommendation:
On February 18, 2010, the Finance and Citywide Projects Committee (the "Committee ") unanimously
agreed to implement new living wage rates and a phased -in approach, which are summarized herein.
Also,'on March 25,2010, the Committee unanimously agreed to other amendments to the City's Living
Wage Ordinance, which have been incorporated in the attached Ordinance.
Financial Information:
Source of Amount Account Approved
Funds: 1 $668,232 FY 2010/2011-
. .
2 $334,116 FY 2011/20/2
3 $334,116 FY 2012/2013
OBPI Total $1,336,464
[:LinEan Impact Summary: The estimated impact does not consider any ripple effect as a result of
compression and all costs include FICA at 6.20% and MICA at 1.45 %.
City Cleric's Office Legislative Trackin
Gus Lopez, ext. 6641
Sign-Offs: 17
De artm Director Assistant City Mina er - Ci er
GL rly PD.W JMG
T:IAGENDA �Nune 9tReguiarlLivingWageSummary.doc
MIAMBEACH DATE
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and. Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: June 9, 2010 ECOND READING
SUBJECT: AN ORDINANCE OF THE MA OR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 2 OF THE
CITY CODE, ENTITLED, "ADMINISTRATION;" BY AMENDING
ARTICLE VI THEREOF' ENTITLED, "PROCUREMENT", BY
.AMENDING DIVISION 6 ENTITLED "LIVING WAGE REQUIREMENTS
FOR SERVICE CONTRACTS AND CITY EMPLOYEES ", SECTIONS 2-
407 THROUGH 2410 THEREIN; AND PROVIDING FURTHER FOR ;
CODIFICATION, SEVERABILITY, AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
Adopt the Ordinance on Second Reading.
CHANGES FROM FIRST TO SECOND READING
The Mayor and City Commission, at its May 12, 2010 meeting, approved on first reading,
an Ordinance amending the City's Living Wage . requirements for certain service
contracts ( "covered contracts").
The only revisions to the Ordinance between First and Second Reading are as follows:
1. ; Section 2- 408(c): The phrase "as soon as reasonably practicable" was
deleted, and replaced with "by the next pay period."
2.. Section 2- 408(i). An exemption was added for a covered employee' who
regularly receives tip or gratuities as part of his /her pay provided that the
service contractor complies with the requirements set forth in Section" 27
408(1).
FISCAL IMPACT
The City's the living wage rates, have not been indexed since the adoption of the City's
Living Wage Ordinance on April 18, 2001. Asa result, the Mayor and City Commission
referred the issue to"the Finance and Citywide Projects Committee (the "Committee ") for
review and discussion.
The Committee discussed amendments to. the Living Wage Ordinance at three (3)
meetings:
Commission Memo Re Living Wage Amendments
June 9, 2010
Page 2 of 4
1 - On January 26, 2010, the Committee requested an analysis be'done to calculate
the fiscal impact to the General Fund as well as the 'Enterprise Fund, and a
timeline for phasing -in the wage increases.
2- On February 18, 20.10, the Committee was provided with various options as part .
of the living wage analysis that reflected the fiscal impact, to' the General Fund
and the Enterprise Funds, and a timeline for phasing-in the living wage increase.
Specifically, eight (8) alternatives were provided to the Committee with different
methodologies for possible adjustments to the' living wage and the' resulting
incremental costs to the City. Each alternative was calculated by applying the
indexed rate with or without health benefits, as applicable, to the hours worked
by any covered employee currently earning less than the indexed rate.
Information on whether or not health benefits, were provided was obtained from
each service contractor. The hours used for each calculation depended upon the
rate being indexed in the alternative and the number of hours worked by the
covered employees that fell below the indexed rate.
It is important to'note that the alternatives slid not consider any ripple effect
as a. result of payroll compression (.e. a similar percentage or dollar per
hour increase for employees who currently earn in excess of the proposed .
living wage rates) but did.include'FICA at 6.20% and (FICA 1'.45 %.
The Committee unanimously agreed to implement Alternative 4a, Consumer
"�- " "Pelee "Index fiir` Al1 ^Cor�surimers (CPI =U) fof MiamilFort �aude� dale; and` "_.__. _____.
requested that the new living wage rates, of $11.28 with benefits, and $12.92
without benefits be phased -in as follows: 50% in FY 2010/2011; 25% in FY
2011/2012; and 25% in FY 201212013.
Using the proposed three -(3) year phase -in, the rates will be implemented as
follows:
commencing with city fiscal year 2010 -11 (October 1,, 2010), the living
wage rate will be $10.16 1hr. with health benefits, and $11.41/hr without
benefits;
• commencing with city fiscal year 2011 -12 (October 1, 2011), the living
wage rate will be $10.72/hr with health benefits, and $12.17/hr without
benefits; and
• commencing with city fiscal -year 2012 -13 (October 1, 2012), the living
wage. rate will be $11:28 /hr with health benefits,` and $12.92/hr without
benefits.
The health benefits shall consist of payment of at least $1 64 per hour toward the
provision of a health benefits plan for covered employees'and their dependents,
- and will be phased -in as follows:
• $1.25 /hour in FY 2010/2041;
• $1.45 1hour in FY 2011/2012; and
• $1.64 /hour in FY 2012/2013.
The FY 2010/2011 impact_ 'on the Genera! Fund . is estimated to approximate
$273,975; and Enterprise Fund is estimated to approximate $394,257_ The total
three (3) year incremental cost is summarized below.
2.
Commission Memo Re Living Wage Amendments
June 9, 2010
Page 3 of 4
Again, the estimated impact does not consider any ripple effect as a .result of
payroll compression and all costs include FICA at 6.20% and MICA at .1.45 %.
Total Three Year Incremental Cost
Alternative 4A 2010/2011 2011/2012 201212013 Total
Uses CPI -U Mia /FII $10.16/$11.41 $10.72/$12.17 $11.28/$12.92 Cost
Takes FY 10/11 rate and splits increase from
current rate to 2013 by increasing $1.60 in $ 668,232
year 1 and the balance over 2 years $ 334,116
$ 334,116
$ 668,232 $ 334,116. $ 334,116 $ 1,336,464
Total
General Fund $ 273,975 $ 136,988 $ 136,987 $ 547,950
Enterprise Fund $ 394,257 $ 197,128 $ 197,128 $ 788,514
Increase 50% 25.00% 25.00% 100.00%
$1.60/$1.60 $0.56/$0.76 $0.56/$0.75
3- On March 25, 2010, the City Attorney's Office presented the Committee with
proposed amendments to the City's Living Wage Ordinance. Deputy City
Attorney Raul Aguila informed the Committee of the proposed amendments,
which are summarized below and are incorporated in the attached Ordinance.
a. A new definition for Health Benefits, which consists of wellness and
preventive care, including maternity, which 'meets the requirements of
Florida Statues.
b. The new living wage rates and the phase -in approach over the next three
fiscal years.
C. The new health benefits contribution rates and the ,phase -in approach
over the next three fiscal years.
d. A new election of health benefits process during an annual open
enrollment period for employees.
e. A new indexing process that includes the determination to index or not
index for inflation to be considered annually during the City Commission's
review and approval of the City's annual operating budget.
f. A cap on the annual indexing of three percent (3 %), arid, that no annual
increase shall exceed the annual increase (if any) provided
to unclassified City employees.
g. A new "catch -up" election. In `the event that the City Commission
determines, in any particular fiscal year, to not index the living wage rate,
then the City Commission shall have the right to cumulatively index the
living wage rates to "make -up" for any deficiencies in. the prior year (or
years).
h. Revised complaint procedures that include the City Manager providing a
written report to the City Commission, and an administrative hearing
before the City's special masters.
3
Commission Memo Re Living Wage Amendments
June 9, 2010
-Page 4 of 4
CONCLUSION
In addition to the review of the Finance and Citywide Projects Committee, the attached
Ordinance was also reviewed by representatives of the SEIU Labor Union and their
Counsel, and -their comments have been incorporated -'
The City Attorney's Office and the Administration recommend that the Mayor and City
Commission adopt the attached Ordinance on Second and Final Reading.
JM.G /PDW /GL
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Exhibit "D"
City of Miami Beach Equal Benefits Ordinance
-(See attached)
ORDINANCE NO. 2005 -3494
-AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING MIAMI BEACH CITY CODE
CHAPTER 2, ARTICLE VI, DIVISION 3, BY CREATING SECTION 2 -373
THEREOF, ENTITLED "REQUIREMENT FOR CITY CONTRACTORS TO
PROVIDE EQUAL BENEFITS , FOR DOMESTIC PARTNERS," � BY
MANDATING.THAT CITY CONTRACTORS PROVIDE EQUAL BENEFITS FOR
DOMESTIC PARTNERS; PROVIDING FOR REPEALER, SEVERABILITY,
CODIFICATION AND AN EFFECTIVE DATE.
WHEREAS, it is' in the best interest of the City to be responsible to the changing
needs-of society and to treat all persons fairly and equitably; and .
WHEREAS the City recognizes "that .long -term committed relationships foster
economic stability and emotional and physiological bonds; and
WHEREAS, the City has adopted a human rights ordinance and seeks to comply
with the full spirit of it.
NOW, THEREFORE,; BE IT ORDAINED BY THE. MAYOR AND .CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION '1. That Miami Beach City Code Chapter 2 Article Vl; Division 3, is hereby
amended to create a new Section 2 - 373 thereof, entitled "Requirement for City
Contractors to Provide Equal Benefits for Domestic Partners ", to read as follows:
ARTICLE VI. PROCUREMENT
DIVISION 3. CONTRACT PROCEDURES
SECTION 2 -373. REQUIREMENT FOR CITY CONTRACTORS TO PROVIDE
EQUAL BENEFITS FOR DOMESTIC PARTNERS
IN ' Definitions.
For purposes of this section only, the following definitions shall apply'
M. Benefits mean the following plan program or policy provided or offered by a
Contractor to its employees as part of the employer's total compensation package:
sick leave, bereavement leave family medical leave and health benefits
Bid shall mean a competitive bid procedure established by the City through the
Issuance of an invitation to bid. request for proposals, request for qualifications or
request for letters of interest.
j3) Cash. Equivalent means the amount. of money paid to an employee with a
Domestic Partner (or spouse if applicable) in lieu of providing Benefits to the
employee's Domestic Partner (or spouse, if applicable). The Cash Equivalent is z
. equal to the employer's direct expense of providing Benefits to an employee for his
or her spouse.
Cash Equivalent. The cash equivalent of the followinci benefits apply:
a. For bereavement leave, cash payment for the number of days that
would be allowed as paid time off for the death of a spouse. Cash
payment would- be in the form of the wages of the domestic partner
employee for the number of days allowed.
b. For health benefits, the cost to the Contractor of the Contractor's
share of the single monthly premiums that are being paid for the
domestic .partner employee, to be paid on a regular basis while the
domestic partner employee maintains such insurance in force for
himself or herself.
c. For family medical leave, cash payment for the number of days that
would be allowed as time off, for an employee to care for a spouse
Who hasT a serious health condition. Cash payment would be in the
form of the wages of the domestic partner employee for the number
of days allowed.
Contract means any written - agreement purchase order standing order or
instrument entered into pursuant to the award of a Bid whereby the City is committed
to expend or does expend funds in return for work labor, professional services
consulting services supplies equipment materials construction construction
related services or any combination of the foregoing
- (5) Contractor means any person or persons sole proprietorship partnership ioint
venture, corporation or other form of doing business that is awarded -a Bid and
enters into a Covered Contract with the City, and which maintains 51 or more full -
time employees on the pavroll during twenty (20) or more calendar work weeks in
either the current or the preceding calendar year. Work weeks include consecutive
and non - consecutive work weeks.
Covered Contract means a Contract between the City and a Contractor awarded
subsequent to the date when thin section becomes effective Valued at over
$ 100,000 ' M
Domestic Partner shall mean any two (2) adults of the same or different sex
who have registered as domestic partners with a governmental body pursuant to
state or local law authorizing such registration, or with an internal registry maintained
` by the employer of at least one'of the domestic partners. A Contractor may institute
an internal registry to allow for the provision of eguai benefits to employees with
domestic partner who do not register their partnerships pursuant to a governmental
body authorizing such registration, or who are located in a iurisdiction where no such
governmental domestic partnership registry exists. A Contractor that institutes such
registry shall' not impose criteria for registration that are more stringent than those
required for domestic partnershir) registration bV the Citv of Miami Beach.
(8� Equal Benefits means the equality of benefits between employees with spouses
and emplovees with Domestic Partners, and /or between spouses of employees and
Domestic Partners of employees:
(B) Equal Benefits Requirements.
All Bids for Covered Contracts which are issued on or after the
effective date of this section shall include the requirement to provide Equal Benefits
in the procurement specifications for such Bids.
The City shall not enter into any Covered Contract unless the
Contractor certifies - that such Contractor does not discriminate in the provision of
Benefits between employees with Domestic Partners and employees with spouses
and /or bebNeen the Domestic Partners and spouses of such employees
(3) Such certification shall be in writing and shall be signed by an
authorized officer of the Contractor and delivered along with a description of the
Contractor's employee benefits plan, to the City's Procurement Director prior to
entering into such covered Contract.
(4) The City Manager or his /her designee shall reiect a Contractors
certification of compliance if he /she determines that such Contractor discriminates in
the provision of Benefits or if the City Manager or designee determines that the
certification was created, or is being. used for the ourpose of evading the
reguirements of this section.
(5) The Contractor shall .provide the City and /or the City Manager or
his /her designee, access to its records for the purpose of audits and /or
investigations to ascertain compliance with the provisions of this section and upon
request shall provide evidence that the Contractor is in compliance with the
provisions of this section upon each.. new Bid Contract renewal or when the City
Manager has received a complaint or has reason to believe the Contractor may not
be in compliance with the provisions of this section This shall include but not be
limited to providinq the City and /or the Cily Manager or his /her designee with
certified copies of all of the Contractor's records pertaining to its Benefits policies
and its employment policies and practices
(6) The Contractor must post a . copy of the following statement in
conspicuous places at its place of business _available to employees and applicants
for employment:
"During the performance of a Contract with the City of Miami
Beach, Florida, the Contractor will . provide Equal Benefits, to its
employees with spouses and its employees with Domestic
Partners ".
The posted statement-must also include a City contact telephone. number which will
be provided each Contractor when the Covered Contract is executed.
7) The Contractor may not set up or use its contracting entity for the
purpose of evading the requirements imposed by this section.
Other Options for Compliance.
Provided that the Contractor does not discriminate in the `provision of Benefits, a
Contractor may also .comply with this section in the following ways:
11 The` Contractor may provide an employee with the Cash Equivalent of
such Benefit or Benefits if the City Manager or his /her designee determines that
either:
' The Contractor has made a reasonable yet unsuccessful effort to
Provide Equal Benefits. The Contractor shall provide the City Manager or his /her
designee with sufficient proof of such inability to provide such Benefit or Benefits
which shall include the measures taken to provide such Benefits or Benefits and the
Cash: Equivalent proposed, along with its certificate of compliance as is required
under subsection (B) of this section. The City Manager or his designee shall based
on submitted evidence; determine whether the Contractor's failure to provide such
Benefit or Benefits ,precludes such Contractor from entering into a Covered Contract W
pursuant to the requirements of this section or
b) Under the circumstances, it would be unreasonable to require the
Contractor to provide Benefits to the Domestic Partner (or spouse if applicable)
2) The Contractor provides. benefits neither to employees' spouses nor to
employees' Domestic Partners.
Applicability.
1) Unless othemise exempt, a Contractor is subieot to and shall comply with
a_ II applicable brovisions of this section.
2) The requirements of this section shall apply to Contractor's operations as
follows: -
al Employees of a Contractor with a Covered Contract who work
within the ON limits of the City of Miami Beach, Florida: and
b) The Contractor's employees located in the United States but
outside of the City of Miami Beach limits if those employees are directly performing
work on the Covered Contract within the City of Miami Beach.
LEI Mandatory Contract Provisions Pertaining to Equal Benefits
Unless otherwise exempt, every Covered Contract shall contain language that
obligates the Contractor to comply with the applicable provisions of this section The
language shall include provisions for the following
During the performance of the Covered Contract the Contractor certifies
and represents that it will comply with this section. m_..
2 The failure of the Contractor to comply with this section will be deemed to
be a :material breach of the Covered Contract.
3) If the Contractor fails to comply with this section the City may terminate
the Covered Contract and all monies due or to become due under the Covered
Contract may be retained by the City. The City may also pursue any and all other
remedies at law or in equity for any breach.
If the City Manager or his designee determines that a Contractor has set
up or used its contracting entity for the purpose of evading the requirements of this
section, the City may terminate the - Covered Contract
Failure to comply with this section may subiect the Contractor to the
procedures set forth in Division 5 entitled "Debarment of Contractors from City
Work.
Enforcement.
1) If the Contractor fails to comply with the provisions of this section
i
The failure -to comply may be deemed to be a material breach of
the Covered Contract: or
The Cib/ may terminate the Covered Contract: or
3) Monies due or to become due under Covered Contract may be
retained by the City until compliance is achieved; or
4) The City may also pursue any and all other remedies at law or in
equity for any breach:
5) Failure to comply with this section may also subiect "Contractor to
the procedures set forth in Division 5 entitled "Debarment of Contractors from City
Work."
Non- applicability, Exceptions and Waivers
The provisions of this sectionr shall not apply where:
a) The Contractor provides Benefits neither to employees' spouses
nor to employees' Domestic Partners
b� The Contractor is a religious organization association society or
any non- profit charitable or educational institution or organization operated
supervised or controlled by or in coniunction with a religious organization
association or society.
cc) The Contractor is a governmental entity
2� The provisions of this section shall not apply to Covered' Contracts which
involve:
a� The sale or lease of City property. .
Development agreements entered into pursuant to Chapter
163.3220, Florida Statutes (the "Florida Local Government Development
Agreement"), as same may be amended
c) The award, pursuant to competitive processes of CDBG' HOME
SHIP and Surtax Funds administered by the City's Office of Community
Development.
d) The award, pursuant to competitive processes - of Cultural Arts
Council Grants.
The acquisition of . professional architectural, engineering
landscape architectural or survey and mapping 'services procured pursuant to
Chapter 287.055 Florida Statutes (the "Consultants' Competitive Negotiation Act ")
as same may be amended.
f) The procurement of life, health, accident, hospitalization legal
expense. annuib/ insurance, or all or am, kinds of other insurance for the officers and
employees of the City, and for the dependents of such officers and employees from
a group insurance plan.
3) Upon the request and written recommendation of the City Manager, the
City Commission may. by resolution adopted by a five- seventh (5 /7ths) vote of the
City Commission, waive compliance of this section under the following
circumstances:
a) The Covered. Contract is necessary to respond to an emergency,
where the existence of an emergency is requested upon written recommendation of
the City Manager, and same is determined by the City Commission For purposes of
waiver under this subsection only, in determining whether there is an emergency,
the City Commission may consider the following non- exclusive`factors:
The nature of the Covered Contract;
ii The length of the Covered Contract;
The cost of the Covered 'Contract
iv Whether grants are involved in the Covered Contract and the
requirements of those grants .
yj Whether. there is a need to have materials goods and
services furnished immediately and the consequences of a
delay - in having those materials goods and . services
a furnished:
vi The monetary consequences if action is not taken
immediately:
vii Anybealth, safety and welfare issues that may be involved
Increased labor costs, and scheduling of labor
ix The need to complete work before "a strict deadline: or
The impact of delaying one phase or portion of a project on
the other phase(s) or portion(s) of the project
Where only one Bid response is received
Where more than one Bid response is received but the Bids
demonstrate that none of the bidders can comply with the requirements of this
section, and one or more of the Bids received would otherwise have been
responsive if compliance with this section would not have been listed as a
requirement in the Bid specifications
d) Where more than one Bid response is received and Bid responses
are received from:
one or more bidders that comply with the requirements of
this section and are otherwise responsive; and
ii one or more bidders that do not or cannot comply with the
requirements of this section, but would otherwise have been
responsive if compliance with this section would not have
been listed as a requirement in the Bid specifications: and
- the Procurement Director's review of the Bids demonstrates
that the cost of the Bid (and /or the proposed Covered
Contract which may be negotiated for such Bid) as
submitted by the lowest responsive bidder which compiles
With the requirements of this section (or, in the case of a
proposal, the proposal of the too- ranked proposer) would be
at least five percent (5 %) or two hundred fifty thousand
dollars ($250;000) (whichever is less) greater than the
lowest responsive bid submitted, by the bidder which does
not comply with the requirements of this section but: would
otherwise have been responsive if compliance with this
i section would not have been listed as a requirement in the
Bid specifications (or, in the case of a proposal where the
top- ranked proposer which. does not comply with the
6
requirements of this section but would otherwise have been
res onsive if compliance with this section' would not have
been listed as a requirement in the Bid specifications);
then, upon request and written recommendation of the City Manager, the City
Commission may, by resolution adopted by a 5 17ths vote of the City Commission
waive compliance of this section and award the Bid to the lowest bidder (or if a
proposal to the top ranked proposer) which does not comply with the requirements
of this section but - would otherwise have been responsive if compliance with this
section would not have been listed as a requirement in the Bid specifications
(H) Consistency with Federal or State Law.
The provisions of this section do not apply where the application of these provisions
would violate or be inconsistent with the laws rules or regulations of federal or state
law, or where the application would violate or be inconsistent with the terms or
conditions of a grant or contract with- the United States of America the State of
Florida, or the instruction of an authorized representatives of any of these- agencies
. with respect to anv grant or contract
L Nothing in this section shall be construed to limit the City's authority to cancel or
terminate a Contract deny or withdraw, approval to a subcontract or provide
supplies, issue a non - responsibility finding issue a non responsiveness finding
deny a person or entity pre - qualifications, or otherwise deny a person or entity City
business.
Q Timing of Application:
This section shall be apolicable only to Covered Contracts awarded' pursuant to Bids'
which are issued six (6) months from the date when this section becomes effective.
SECTION 2 REPEALER
All ordinances or parts or ordinances in conflict herewith be the same are hereby
repealed.
SECTION 3 SEVERABILITY
If any section, sentence, clause or phrase of this ordinance is held to be invalid or
unconstitutional by any court of competent jurisdiction, then said holding shall in no
way affect the validity of the remaining portions, of this ordinance.
SECTION 4 CODIFICATION
It is intention of the Mayor and City Commission of City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made a
part of the Code of the City of Miami Beach, Florida. The sections of this ordinance
may be renumbered or relettered to ` accomplish such intention, and the word
"ordinance may be changed to "section ", "article ", or other appropriate word.
SECTION 5 EFFECTIVE DATE
This Ordinance shall take effect the 29th day of October 2 0 0 5
PASSED and ADOPTED this day of October .2 p ,
ATTEST:
MAYOR David Dermer
CITY CLERK Rabert Parcher ' APPROVED AS TO
FORM & LANGUAGE
F:\atto\AGUR\RESOS -ORD \Equal Benefits Ordinance (Final).doc FOR I E TI
City Attomey V Date
CITY OF MIAMI BEACH
COMMISSION ITEM SUMMARY
Condensed Title:
An Ordinance (Second Reading) Entitled "Requirement For City Contractors To Provide Equal Benefits For
Domestic: Partners," By Mandating That City Contractors Provide Equal Benefits For Domestic Partners.
Issue:.: .
Shall the City Commission Adopt the Ordinance?
Item Summa /Recommendation:
The proposed Ordinance is being sponsored by Commissioner Luis Garcia and was prepared at the
recommendation of the Neighborhood /Community Affairs Committee.
The City Attorney's Office and the City's Procurement Division worked on the proposed Ordinance which
would require certain contractors doing business with the City (as further defined. herein) to provide
"equal, benefits" to their employees, including their, employees with domestic partners. The proposed
Ordinance was prepared after having reviewed various equal benefits legislation from counties and
municipalities in other states, as well as having conducted independent research and legal review. The
Ordinance has also .been - reviewed with, representatives of SAVE Dade, including their advisory legal
counsel on this issue. .
The Mayor, and Members of the City Commission at its September 8, 2005 City Commission meeting,
approved on first reading the proposed ordinance entitled "Requirement for City Contractors to Provide
Equal Benefits for Domestic Partners "(the Ordinance), and the Contract Compliance Specialist position, . .
by a ballot vote of 7 -0.
As part of the discussion relevant'to the Ordinance and Contracts Compliance Specialist position, the
following requests were made by the City Commission and in turn, the Administration conducted its due
diligence relative to the issues raised which are addressed in the attached Commission Memo.
Adopt Ordinance, to be submitted in the Supplemental Agenda, reflecting the Finance &Citywide
Projects Committee and the Neigh borhood/Communi Affairs Committee's requested modifications.
Advisory Board Recommendation:
On September 1, 2005, the Finance and Citywide Projects Committee and the Neighborhood/Community
Affairs Committee unanimously moved the item to the full Commission, recommending approval of the
proposed'Ordinance. The Committees also recommended establishing a ramp -up period for ordinance
and the.creation of dedicated position for contract compliance issues.
Financial Information:
Source of Amount .Account Approved
Funds: 1
3
• d
Finance Dept. Total
City Clerk's Office Le islative Trackin
Gus Lopez, ext. 6641
S, n -Offs•
Depa . ent Director Assistant City Manager City Manager
GL PDW JMG
T:\AGONDA\2005\Octl.905\Regular\OrdinanceRequirementCont torsAirnmary.doc
AGENDA ITEM 1QSA
DATE
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33159
www.miamibeachfl.gov
COMMISSION MEMORANDUM
To: Mayor David Dermer and Date: October 19, 2005
Members of the City Commission
from: Jorge M. Gonzalez SECOND READING
City Manager PUBLIC HEARING
Subject: AN ORDINANCE OF THE MAYOR AND THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING MIAMI BEACH CITY
CODE CHAPTER 2, ARTICLE VI, DIVISION 3, BY CREATING SECTION 2-
373 THEREOF, ENTITLED "REQUIREMENT FOR CITY CONTRACTORS
TO PROVIDE EQUAL BENEFITS FOR DOMESTIC PARTNERS," BY
MANDATING THAT CITY CONTRACTORS PROVIDE EQUAL BENEFITS
FOR DOMESTIC PARTNERS; PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION AND AK EFFECTIVE
ADMINISTRATION RECOMMENDATION
Adopt the Ordinance.
ANALYSIS
The Mayor and Members of the City Commission at its September 8, 2005 City
Commission meeting, approved on ,first reading the proposed ordinance entitled
"Requirement for City Contractors to Provide Equal Benefits for Domestic Partners "(the
Ordinance), and the Contract Compliance Specialist position, by'a ballot vote of 7 -0.
As part of the discussion relevant to the Ordinance and Contracts Compliance Specialist
position, the following requests were made by the City Commission and in turn, the
Administration conducted its due diligence relative to the following issues:
1. Commissioner Simon Cruz requested that the Contracts Compliance Specialist position
reflect the enforcement not only of the Ordinance, but also the City's Living Wage
Ordinance.
The Administration has prepared the Contracts Compliance Specialist job description
with duties and responsibilities that will include enforcement of the requirements set
forth in the City's Living Wage Ordinance, Equal Benefits Requirements for Contractors
Ordinance, and any other ordinance adopted by the Mayor and ,City Commission that
requires enforcement by the Procurement Division. See attached Contracts
Compliance .Specialist job description.
2. Commissioner Cruz requested to have penalties in the Ordinance before second
reading.
The' City Attorney's Office has incorporated the following penalty provisions in the
proposed Ordinance:
•
'The failure of the Contractor to comply with the Ordinance will be deemed to be
a material breach of the Covered Contract;
• If the Contractor fails to comply with the Ordinance, the City may terminate the
Covered Contract and all monies die or to becorne due under the Covered
Contract may be retained by the City;
•. The City may also pursue any and.all other remedies at law or in equity for any
breach;
If the City Manager or.his designee determines that a Contractor has set up or
used its contracting entity for the purpose of evading the requirements of this
section, the City may terminate the Covered Contract;
• Failure to comply with this section may subject the Contractor to the procedures
set forth in Division 5, entitled "Debarment of Contractors from City Work. ";
• Monies due or to become due under the Covered Contract may be retained by
the City until compliance is- achieved; and
• Failure to comply with the requirements of the may also subject-.
Contractor to the procedures set forth in the Miami Beach City Code, entitled
"Debarment of Contractors from City Work." `
3. Commissioner Jose Smith stated that as it relates to the enforcement issue, the City
needs to look at creative ways to enforce'the Ordinance, and suggested that perhaps
another governmental agency, or law schools (i:e., University of Miami and University of
New York) as opposed to hiring full -time employee.
The City's Procurement Director explored Commissioner Smith's suggestion with the
following entities /individuals:
MIAMI -DADE COUNTY
Marsha Jackman, Director, Department of Business Development, Miami -Dade County.
Ms. Jackman also oversees the County's Compliance Division, which oversees the
County's Living Wage Ordinance:
Ms. Jackman informed the City's Procurement Director that the Miami -Dade County
' Commission established a 15- person Living Wage Commission with the purpose of
reviewing the effectiveness of the County's Living Wage .Ordinance, review
certifications submitted by covered employers, review complaints filed by employees
and to make recommendations to the County Mayor and the County Commission. And
the County's Living Wage Ordinance is enforced by the Compliance Division within the
Department of Business Development. The - Compliance' Division consists of 28
individuals, of which 9 are Contract Compliance Specialist II, and 14 are Contract
Compliance Specialist I, and the 5 are support staff positions.
When asked if the - County would .consider enforcing the City's Living Wage- and /or
Equal Benefits Ordinance, Ms. Jackman indicated that 'her office is only familiar with the
Living Wage Ordinance. And as it relates to the Living Wage Ordinance, in order for
her office to present a recommendation to the County Manager, the County needs to
know' if the City wants an "aggressive enforcement" process that includes but is not
limited to on -site interiiews with: employees of all covered employers, or enforcement
only when complaints are filed?
If. the City desires "aggressive enforcement ", based on the County's Compliance
Division's existing staff and the volume of current County contracts that fall under the
County's Living Wage Ordinance, coupled with the City's Living Wage contracts, then
the. County would need to hire additional staff and ..all costs associated with
enforcement would be part . of an inter - governmental agreement with the City.
Should the City desire the County to process and resolve all complaints filed relative to
Living Wage, then all costs associated with complaint procedures, sanctions, remedies,
and administrative hearing- processes would be part of an inter - governmental
agreement with the City.
University of Miami
Professor Michael ,Fischl, University of Miami, School of Law. Professor Fischl had
heard about the City's Equal Benefits Requirements Ordinance but was not aware of
the particulars. His area of expertise and study has been the Living Wage Ordinance.
Professor. Fischl offered suggestions including the establishment of an oversight
committee that would make recommendations and review staff reports relative to
compliance or lack thereof by vendors. Additionally, Professor Fischl believed that a
"specialist" 'whose job responsibilities would require enforcement of -the various
ordinances was a good idea.
New York University (NYU)
Professor Paul Sonn, Brennan Center for Justice at NYU School of Law. Professor
Sonn informed me that the NYU Center has assisted activists, lawmakers in cities
across the in designing, enactinggand defending living.wage-laws. He is not:
familiar with Equal Benefits laws, but has done extensive research on Living Wage
laws. However, as it relates to enforcement issues, he would defer to his colleague at
the University of Massachusetts, Stephanie Luce.
At the time this Commission Memorandum was being finalized, several messages and
e -mails were sent to Professor Luce, and Professor Gerald Lopez, NYU School of Law.
Any information provided by Professor Lopez or Professor Luce will be submitted as
supplemental material.
4. Commissioner Richard Steinberg asked if the False Claims Ordinance can be changed,.
so that if someone is asking the City for payment based on a contract that they are
supposed to pay a living wage or provide for domestic partner benefits, and they are
not adhering the'requirements of said Living Wage or Equal Benefits Ordinances, then
that would trigger the False Claims Ordinance.
The City Attorney's Office has reviewed the False Claims Ordinance, and, the current
version, would not apply with regard to enforcement of the proposed Equal Benefits
Ordinance and, other ordinances such as the Living Wage Ordinance. An amendment
to the False Claims - Ordinance would be required which, upon "request by the City
Commission, the City Attorney's Office would prepare.
5. Commissioner Smith requested to know what the potential fiscal impact would be if the
City Commission exercised the waiver provisions set forth in the Ordinance.
The Commission Memorandum presented to the City Commission on September 8,
2005, informed the Mayor and City that if the proposed Ordinance was enacted five
years ago, the fiscal impact would have been have been $2,149,887.56. This
estimated fiscal impact was based on applying the requirements of the proposed
Ordinance to the contracts awarded by the City over the past five years, without any
waiver considerations. The potential fiscal impact if the City Commission had exercised
the waiver provisions set forth in the Ordinance is reduced from $2,149.887.56 to
$366,119.56. The significant difference is in large part attributable to one contract —the
North Shore Park and Youth Center which shows a difference between the low bidder
who is not.compliant, and the second low bidder who is compliant, of $1,652,768.
FISCAL IMPACT
Determining the five -year fiscal impact of the proposed Ordinance beyond the cost
associated with aforementioned Contract Compliance Specialist position is extremely
difficult when one considers the variables of the proposed Ordinance (i.e. applicability,
exemptions, and waiver provisions). However, the Administration applied survey results to
the bid results of the last five years' contract awards to determine the impact of. the
proposed Ordinance. - In other words, if the proposed Ordinance was enacted five years
ago, what would the fiscal impact have been? Based on the above, had the Ordinance
been in place, the additional cost to the City would have been in excess of $2 million.
The following are the bid results ifthe Ordinance applied at the time of award (looking back
five, years):
(1) Total number of contracts awarded that the results were applied to: .... :.174
(2) Total number /percentage of contractors who provide or
offer equal benefits to all employees including individuals
in domestic partnership .. ....... ......::................ ..:.........................129 (74 0 1o)
(3) Total number /percentage of contractors who would not provide or
offer equal benefits to all employees including individuals in a domestic
partnership ................... ............,...17 (10 %)
(4) Total number /percentage.of contracts exempted ................................... 28 (16 %)
(5) Fiscal Impact Without Waiver ......:....... ............................... ...:. $2,149.887.56
(6) - Fiscal Impact With City Commission Waiver ......:.... : ....:............. $366,119.56
The fiscal impact in subsection (5) above, was calculated by comparing the lowest and
best bids which did not meet the_requirement of the proposed Ordinance (in terms of
offering equal benefits to employees with domestic partners), versus the next lowest and
best bids that did meet the requirements of the Ordinance (i.e., offered equal benefits to .
employees with domestic partners).
BACKGROUND
Pursuant to the request of Commissioner Luis Garcia, the Mayor and City Commission
passed and adopted on July 28, 2004, Ordinance No. 2004 -3451, which amended Chapter
62 of the Miami Beach Code entitled Relations" by adding Article IV thereto to
provide for Registered Domestic Partnerships for those wishing to register who meet
eligibility requirements, and granting certain rights including health care visitation and heath
care decisions, among other rights.
At "the direction of the Neighborhood /Community Affairs Committee, the City Attorney's
Office and the City's Procurement Division worked on the proposed Ordinance which would
require certain contractors doing business with the City (as further defined herein) to
provide "equal benefits" to their employees, including, their employees with domestic
partners:
The attached Ordinance, entitled "Requirement for City Contractors to Provide Equal
Benefits -for Domestic Partners" (and which may hereinafter also be referred to as the
Ordinance) was prepared by the City Attorney's Office and the Administration after having
reviewed various equal benefits legislation from.counties and municipalities in other states,
as well as having conducted their own independent research and legal review. The
_'Ordinance has also been reviewed with representatives of SAVE Dade, including their
advisory legal counsel on this issue, and incorporates their comments and /or revisions.
On September 1, 2005, the Finance and Citywide Projects Committee and the
Neighborhood /Community Affairs Committee (the "Committees "), held a joint meeting to
discuss the proposed Ordinance.
The Committees listened to a presentation from Raul Aguila, First Assistant City Attorney,
which provided an analysis of the major points of the proposed Ordinance. Additionally,
the Committees listened to a presentation from Gus Lopez, Procurement Director, which
provided the results of surveys issued to more than 2,800 vendors, and information relative
to potential fiscal impact.
Commissioner Steinberg requested that the "cash equivalent" option for compliance be
further reviewed and /or modified to ensure that the applicability requirements are
consistent. Additionally, Commissioner Steinberg recommended as part of the waiver
provisions, some consideration for the City Commission to waive the requirements of the
proposed Ordinance, should the City Commission determine it is, in the City's best
economic interest.
The Committees unanimously moved the item to the full Commission,_ recommending
approval.of the proposed Ordinance. The Committees also recommended establishing a
ramp -up period for ordinance and the creation of dedicated position for contract
compliance issues.
Commissioner Garcia and Ms. Pena thanked the Committees for supporting the proposed
Ordinance.
PROPOSED EQUAL BENEFITS ORDINANCE SUMMARY
The foregoing analysis provides a summary of the major points of the proposed Ordinance:
1) What is the intent of the-Ordinance?
The proposed Ordinance will require certain, contractors doing business with the City of
Miami Beach, who are. awarded a contract pursuant'to competitive bids, to provide "Equal .
Benefits" to their employees with Domestic Partners,, as they to employees with
spouse's.
2) How are "Equal Benefits defined and what kind of "Benefits" does the Ordinance .
cover?
"Equal Benefits" means that contractors doing business with the City who are covered by
the Ordinance shall be required to, provide the same type of benefits that they offerto
employees and their spouses, to employees -with Domestic Partners.
The type of "Benefits" defined by the Ordinance and which may be offered by a contractor
include: sick leave, bereavement leave, family medical leave, and health benefits'.
The "Benefits" defined in the Ordinance are the same type of benefits that the City provides
to Domestic Partners of City employees, pursuant to Section 62 -128 of the City Code].
Notwithstanding the definition of "Benefits" in the Ordinance, to comply with the Ordinance .
a Contractor is not required to provide all the above - described benefits. Contractors are
only required to offer the same type of Benefits they offer to their employees with spouses,
to employees with Domestic Partners. Additionally; a- Contractor who offers no benefits to
F -
employees or their spouses, would not be required to offer any benefits to employees with
Domestic Partners (and would still be in compliance with. the Ordinance).]
3) Who is considered a "Domestic Partner" under the Ordinance?
A "Domestic Partner" shall mean any two (2) adults of the same or different sex who have
registered as domestic partners with a government body pursuant to state or local law
authorizing such registration, or with an internal registry- maintained by the employer of at
least one of the domestic partners.
4) What type of Contracts andlorwhich Contractors are covered by the Ordinance?
The Ordinance only applies to the following:
• competitively bid .City contracts (bids, RFP's, RFQ's, RFLI's, etc.).
• contracts valued at $100,000.
contractors who maintain 51 or more full time employees on their payrolls during 20
or more calendar work weeks in either the current or the preceding calendar year.
contractors.covered by the Ordinance are only required to comply as to employees
who: 1) either work within the City limits of the City of Miami Beach; or 2) the
contractor's employees located in the United States, ,but outside of the City limits,
only if those employees are directly performing work on the City contract (covered
_by the Ordinance).
;.5) In what cases does the Ordinance not apply?
The provisions of the Ordinance do not apply where:
• the City contract has been has been entered into prior to the effective date of the
Ordinance (including renewal terms contained in such contracts): .
• the City contract is not competitively. bid:
• the City contract is valued at less than $100,000.
• the contractor has less than 51 employees.
• the contractor does not provide Benefits either to employees' spouses , or to
employees' Domestic Partners.
• the contractor is a religious organization, association, society or any non profit
charitable or educational institution or. organization 'operated, 'supervised or
controlled byor in conjunction with a religious organization, association or society.
• the contractor is another government entity.
The following City contracts are not covered by the Ordinance:
contracts for sale, or lease of City property.
• Development Agreements.
contracts /grants for CDBG, HOME, SHIP, and Surtax funds administered by the
City's Office of Community Development
•. Cultural Arts Council grants
• contracts for professional A/E, landscape A/E, or survey and mapping services
procured pursuant to Chapter 287.055, Florida Statutes ( "The Consultants
Competitive Negotiation Act".
contracts for the procurement of life, health, accident, hospitalization,'legal expense,
annuity insurance, or any and all other. kinds of insurance for the officers and .
employees of the City and their dependents, from a group insurance plan.
The Ordinance provides, upon written recommendation of the City Manager, that the City
Commission may, by 5 /7ths vote, waive application of the Ordinance for the following:
• emergency contracts.
• contracts where only one bid response is received.
• contracts where more than one bid response is received, but none of the bidders
can comply with the requirements of the Ordinance.
The City's ability to apply the Ordinance may also be preempted in instances where the
Ordinance impacts health, retirement, or pension program which fall within the jurisdiction
of the Employee Retirement Income Security Act (ERISA), and may under certain
circumstances be held invalid under Federal preemption.
6) How is the Ordinance enforced bythe'City?
City contracts that are covered by the Ordinance shall notify potential
bidders /proposers of the Ordinance and its requirements in the issued bid
documents.
at the time of entering into the contract.with the City, the proposed City contractor
shall certify to the City that it intends to provide Equal Benefits, along with the
description of its employee benefits plan, which needs to be delivered to the
Procurement Director prior to entering into the contract.
• the City has the ongoing right to investigate /audit contracts for compliance -with the
provisions of.the Ordinance.
• the contractor is required to past notice to its employees at its place of business that
it provides Equal Benefits.
7) Is there another way fora Contractor who does not provide Equal Benefits to
comply with the Ordinance?
If a contractor. covered by the Ordinance has made a reasonable .yet unsuccessful
effort to provide Equal Benefits, it can still comply with the Ordinance by providing an
employee with the "Cash Equivalent" of the similar benefit(s) offered to.the contractor's
employees and their spouses.
8) What are the penalties for non compliance?
Failure of a contractor to comply with the requirements of the Ordinance may
result in the following:
•breach/default under the contract.
*termination of the contract.
*monies due under the contract may be retained;bythe City until compliance is achieved.
.*debarment of contractors from City work, as prescribed by the City Code.
ADMINISTRATIVE SURVEY AMONG CURRENT CITY VENDORS AND INITIAL FISCAL
IMPACT ANALYSIS
In addition to research and preparation of the proposed Ordinance, the City's Procurement
Division prepared a written survey /questionnaire which was sent to vendors, currently doing
business with the City of Miami Beach. The purpose of the survey /questionnaire was to.
determine both the viability of the proposed Ordinance, particularly in terms of gauging
potential fiscal impact, as well as impact upon the.City's competitive bidding process and
current available bidder "pools."
More than 2,800 surveys were issued to City vendors to determine among them the
number of contractors who currently offer equal benefits to all their employees including
employees in a domestic partnership; and the number of contractors who currently do not
offer equal benefits to all their employees but would comply if required as a condition of
doing business with the City. Of the 2,800 surveys issued, 604 responses were received
(representing 22% of the surveys issued). The specific questions asked and the responses,
y thereto are listed below:
a. Does your company.provide or offer equal benefits to all employees including
individuals. in a domestic partnership?
Yes - 64.7% No — 33.3% NIA or No Answer 2%
b. If the City was to require -your - company (as a condition of contract award), to
provide/offer-equal benefits to all your employees, including employees in a domestic
partnership, would you continue to do business with-the City?
. t
Yes- 76:3% No-- 19.2 %, N/A or No Answer— 4.5%
RECOMMENDATION
The Administration recommends that'the Mayor and City Commission approve and adopt,
the attached Ordinance on second reading, public hearing; and approve the Contract
Compliance Specialist position subject to the City's classification review process, in order
to enforce the requirements set forth in the proposed Ordinance and the City's.Living Wage
Ordinance and any other ordinance the City Commission may adopt that requires the
Administration to enforce. .
T:\AGENDA\ 2005\ Oct1905 \Regular\RequirementsOrdinance 2nd reading Memo.doc
Contracts Compliance Specialist
NATURE OF WORK
Employees in this class are responsible for inspecting and monitoring vendors, firms,
individuals, contractors and sub - contractors for compliance with requirements pertaining
to the Living Wage Ordinance, Equal Benefits Requirements for Contractors Ordinance,
and any other ordinance adopted by the Mayor and City Commission that requires
enforcement by the ,Procurement Division. Considerable field work is required to ensure
contract compliance, through interviews and examination of documentation. Supervision
is received from. the Procurement Director who reviews work for 'compliance with
established policies and procedures.
ILLUSTRATIVE EXAMPLES OF ESSENTIAL DUTIES
Performs field work to verify that vendors, contractors and sub- contractors are compliant
with established living wage rates and equal benefits requirements.
Provides City departments with general support and technical assistance, as required:
Plans and schedules reviews of contractor payrolls and other applicable records
required to determine compliance with appropriate ordinances..
Conducts job -site interviews with contractor management staff and employees, as
needed, concerning wage, benefit and job classification issues.
Investigates complaints related to enforcement of applicable ordinances and prepares
for administrative hearings.
Determines any underpayments on the part of contractors or sub - contractors; reviews
findings with Procurement Director.
Prepares program evaluation reports.
Exercises considerable independent judgment in ensuring vendor /contractor compliance
with applicable ordinances
Performs related work as required.
KNOWLEDGE, SKILLS AND ABILITIES
Considerable knowledge and understanding of ordinances and procedures pertaining to
wages and benefits.
Working knowledge of contracts, all applicable clauses, contract compliance and
enforcement.
Considerable knowledge of techniques "in monitoring contracts for'compliance.
Knowledge of interviewing practices and techniques.
Knowledge of regulations and rules governing payroll reporting procedures.
Knowledge of public relations principles and techniques.
Knowledge of job classifications in the construction and services industries.
Ability to obtain, collect and organize pertinent information required to review contracts
compliance issues.
-Ability to analyze detailed. payroll and bookkeeping records.
Ability to develop interview'questionnaires and conduct interviews.
Ability to deal effectively with departmental staff members, private contractors and their
employees.
Ability to communicate clearly and concisely, verbally and in writing.
i
Ability to plan and schedule work to meet scheduled reviews of contractor' payroll.
records.
MINIMUM REQUIREMENTS
Graduation from an accredited college or university with a Bachelor's degree in Public or
Business Administration, or a related field. Three (3) years experience which
demonstrates competencies in required knowledge, skills and abilities needed for this
position. Experience may substitute for education on a year- for -year basis.
DESIRES:
Positive attitude and ability to maintain composure. Excellent written and oral
communication skills. Knowledge of Windows, Office Suite (i.e., Word, Excel, Access,
PowerPoint) and automated purchasing system.
PHYSICAL REQUIREMENTS
Must have the use of sensory skills in order to effectively communicate and interact with
other employees and the public through the use of the telephone and personal contact.
Physical capability to effectively use and operate various items of office related
equipment, such as, but 'not limited to, word processor, calculator, copier, and fax
machine. No significant standing, walking moving, climbing, carrying, bending, kneeling, ,
crawling, reaching, and handling, sitting, standing, pushing, and pulling.
SUPERVISION RECEIVED .
General and specific assignments are received and work is performed with moderate
latitude for the use of independent judgment in the selection of work methods and
procedures and is subject to review for compliance with departmental standards and
objectives.
SUPERVISION EXERCISED
May supervise the work of Procurement clerical staff
F:\PURC \$ALL \GUS \Contracts Compliance Officer.doc
CITY OF MIAMI BEACH' o .
(NOTICE OF PUBLIC HEARING N
NOTICE IS HEREBY. given that public hearngs . will be held. by the.Maycr and L
City Commission of the City of Miami Beach,' Florida, in .the Commission 1.
Chambers, 3rd floor, City Hall, 1700 Convention Center Drive, Miami Beach,
In
Florida, on Wednesday, October 19, 2005, to consider the following: Q
10:15 a.m.
An Ordinance Amending Miami Beach City Code Chapter 2, Article VI, Division
3, By Creating Section 2 -373 .Thereof, Entitled "Requirement For City
Ccntractors.To Provide Equal Benefits For Domestic Partners," By Mandating a'
That City Contractors Provide Equal Benefits For Domestic Partners. a
Inquiries may be directed to the Procurement Division at (305) 673 -7490. w
10:20 a.m.
A Resolution 'Setting A First Public Hearing To Consider Extending The
i Approval Of The Miami Beach Convention Center As A Venue For Conventions, a
Expositions Or Events involving Adult Materials, Pursuant To The Provisions Of
Section 847.0134, Florida Statutes; and Referring The Matter To The Land Use r
And Development Committee. 3
Inquiries maybe directed to the Planning Department at (305) 673 -7550.
10:30 a.m: .
An Ordinance Amending The land : Development Regulations Of The Code Of.
The City Of Miami Beach, By Amending Chapter 118, "Administration And
Review Procedures," Article X, "Historic Preservation," Division 1, "Generally,"
By Amending Section. 118 -503 To Modify The, Requirements For An After-The-
Fact Certificate Of Appropriateness; By Amending Chapter 118,
"Administration And Review Procedures," Article X, "Historic Preservation,"
Division 3, "Issuance Of' Certificate Of Appropriateness /Certificate To Dig/
Certificate Of Appropriateness For Demolition," By Amending Section 118 -562
To Add A Requirement For An Independent Structural Evaluation- For
Demolition Requests.
Inquiries may be directed to the Planning Department at (305) 673 -7550.
10:35 a.m
An Ordinance Amending The Land Development Regulations Of The Code Of
The City Of Miami Beach, By Amending Chapter 138, "Signs," By Amending
Article I, "In General," By Amending Section 138-11 To Clarify The
Requirements And Procedures For The Removal Of Signs; Providing For
Inclusion In The City Code.
Inquiries may be directed to the Planning Department at (305)673- 7550.
INTERESTED PARTIES are invited,to appear at this meeting, or be represented
by an agent, or to express their views in writing addressed to the City
Commission, c/o the City Clerk, 1700 Conventio Center Drive, 1st Floor, City
Hall Miami Beach, Florida- 33139. Copies of the* ordinances are available for
public inspection during normal business hours in the City Clerk's Office, 1700
Convention Center Drive, 1 st Floor, City Hall, and Miami Beach, Florida 33139.
This. meeting may continued and under such circumstances additional legal
notice would not be provided.
Robert E. Parcher, City Clerk
City of Miami Beach
Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that: if a
person decides to appeal any decision made by the City Commission with respect to
any matter considered at its meeting or its hearing,such person must .ensure that a
verbatim record of the proceedings is made, which record includes the testimony and
evidence upon which the appeal is, to be based. This notice does not constitute
consent by the City for the introduction or admission of otherwise Inadmissible or
irrelevant evidence, nor does it authorizechallenges or appeals not - otherwise allowed
by law.
To request this material in accessible format, sign lan interpreters, information on
access for Persons with disabilities, 4 andlor any accommodation to' review ary
document or partic :Fate in any city- sponsored proceeding. please contact (305) 504-
2489 (voice)„ (3051573 -7218! a T,1 fire days in advance ?n initiste your request TTY
users may aisc tail 711 ;Flerida Relay Service).
Ad #331-