HomeMy WebLinkAbout2005-3494 Ordinance
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 VI, 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
ffi} Definitions.
For purposes of this section onlv, the followina definitions shall applv:
'\
ill Benefits mean the followino plan, prooram or policv provided or offered bv a
Contractor to its emplovees as part of the emplover's total compensation packaoe:
sick leave, bereavement leave, familv medical leave, and health benefits.
ill Bid shall mean a competitive bid procedure established by the City throuah the
issuance of an invitation to bid. request for proposals. request for qualifications, or
request for letters of interest.
ill Cash Eauivalent means the amount of money paid to an employee with a
Domestic Partner (or spouse. if applicable) in lieu of providina Benefits to the
employee's Domestic Partner (or spouse, if applicable). The Cash Equivalent is
equal to the employer's direct expense of providina Benefits to an employee for his
or her spouse.
Cash Eauivalent. The cash equivalent of the followina 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 waaes of the domestic partner
employee for the number of days allowed.
~ For health benefits. the cost to the Contractor of the Contractor's
share of the sinale monthly premiums that are beina paid for the
domestic partner employee. to be paid on a reaular 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 has a serious health condition. Cash payment would be in the
form of the waaes of the domestic partner employee for the number
of days allowed.
ffi Contract means any written aareement. purchase order. standina 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.
consultina services. supplies, equipment. materials, construction, construction
related services or any combination of the foreaoina.
@ Contractor means any person or persons. sole proprietorship. partnership. ioint
venture, corporation. or other form of doina 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 payroll durina twenty (20) or more calendar work weeks in
either the current or the precedina calendar year. Work weeks include consecutive
and non-consecutive work weeks.
ili1 Covered Contract means a Contract between the City and a Contractor awarded
subsequent to the date when this section becomes effective valued at over
$100.000.
ill Domestic Partner shall mean any two (2) adults of the same or different sex.
who have reaistered as domestic partners with a Qovernmental body pursuant to
state or local law authorizina such reaistration. or with an internal reaistrv maintained
bv the emplover of at least one of the domestic partners. A Contractor may institute
an internal reaistrv to allow for the provision of eaual benefits to emplovees with
domestic partner who do not reaister their partnerships pursuant to a aovernmental
body authorizina such reaistration, or who are located in a iurisdiction where no such
aovernmental domestic partnership reaistrv exists. A Contractor that institutes such
reaistrv shall not impose criteria for reaistration that are more strinaent than those
required for domestic partnership reaistration bv the City of Miami Beach.
@) Eaual Benefits means the eaualitv of benefits between emplovees with spouses
and emplovees with Domestic Partners, and/or between spouses of emplovees and
Domestic Partners of emplovees.
@ Eaual Benefits Reauirements.
ill All Bids for Covered Contracts which are issued on or after the
effective date of this section shall include the reauirement to provide Equal Benefits
in the procurement specifications for such Bids.
ill 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 emplovees with Domestic Partners and emplovees with spouses
and/or between the Domestic Partners and spouses of such emplovees.
ill Such certification shall be in writina and shall be sianed bv an
authorized officer of the Contractor and delivered, alona with a description of the
Contractor's emplovee benefits plan, to the City's Procurement Director prior to
enterina into such covered Contract.
{1) The City Manaaer or his/her desianee shall reiect a Contractor's
certification of compliance if he/she determines that such Contractor discriminates in
the provision of Benefits or if the City Manaaer or desianee determines that the
certification was created, or is beina used for the purpose of evadina the
reauirements of this section.
@ The Contractor shall provide the City and/or the City Manaaer or
his/her desianee. access to its records for the purpose of audits and/or
investiaations to ascertain compliance with the provisions of this section, and upon
reauest 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
Manaaer 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 providina the City and/or the City Manaaer or his/her desianee with
certified copies of all of the Contractor's records pertainina to its Benefits policies
and its emplovment policies and practices.
@ The Contractor must post a COpy of the followina statement in
conspicuous places at its place of business available to employees and applicants
for employment:
"Durina the performance of a Contract with the City of Miami
Beach. Florida. the Contractor will provide Eaual 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.
ill The Contractor may not set UP or use its contractina entity for the
purpose of evadina the reauirements imposed by this section.
(Q) 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 followina ways:
11 The Contractor may provide an employee with the Cash Eauivalent of
such Benefit or Benefits. if the City Manaaer or his/her desianee determines that
either:
~ The Contractor has made a reasonable yet unsuccessful effort to
provide Eaual Benefits. The Contractor shall provide the City Manaaer or his/her
desianee 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 Eauivalent proposed. alona with its certificate of compliance, as is reauired
under subsection (B) of this section. The City Manaaer or his desianee shall. based
on submitted evidence, determine whether the Contractor's failure to provide such
Benefit or Benefits precludes such Contractor from enterina into a Covered Contract
pursuant to the reauirements of this section: or
Q) Under the circumstances. it would be unreasonable to reauire 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.
!.Q) Applicability.
.1} Unless otherwise exempt. a Contractor is subiect to and shall comply with
all applicable provisions of this section.
2.} The reauirements of this section shall apply to Contractor's operations as
follows:
~ Employees of a Contractor with a Covered Contract who work
within the City limits of the City of Miami Beach, Florida: and
Q) The Contractor's employees located in the United States. but
outside of the City of Miami Beach limits. if those employees are directly performina
work on the Covered Contract within the City of Miami Beach.
~ Mandatory Contract Provisions Pertainina to Eaual Benefits.
Unless otherwise exempt. every Covered Contract shall contain lanauaae that
obliaates the Contractor to comply with the applicable provisions of this section. The
lanauaae shall include provisions for the followina:
.1} Durina the performance of the Covered Contract. the Contractor certifies
and represents that it will comply with this section.
2.} The failure of the Contractor to comply with this section will be deemed to
be a material breach of the Covered Contract.
~ 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 eauity for any breach.
1) If the City Manaaer or his desianee determines that a Contractor has set
UP or used its contractina entity for the purpose of evadina the reauirements of this
section. the City may terminate the Covered Contract.
ID 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. "
!E} Enforcement.
.1} If the Contractor fails to comply with the provisions of this section:
.D The failure to comply may be deemed to be a material breach of
the Covered Contract: or
~ The City may terminate the Covered Contract: or
~ Monies due or to become due under the Covered Contract may be
retained by the City until compliance is achieved: or
1} The City may also pursue any and all other remedies at law or in
equity for any breach:
ID 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. II
@ Non-applicability, Exceptions and Waivers.
.D The provisions of this section shall not apply where:
~ The Contractor provides Benefits neither to employees' spouses
nor to employees' Domestic Partners.
Q) The Contractor is a reliaious oraanization, association, society or
any non-profit charitable or educational institution or oraanization operated.
supervised or controlled by or in coniunction with a reliaious oraanization.
association or society.
.Q) The Contractor is a aovernmental entity.
~ The provisions of this section shall not apply to Covered Contracts which
involve:
~ The sale or lease of City property.
Q) Development aareements entered into pursuant to Chapter
163.3220, . Florida Statutes, (the "Florida Local Government Development
Aareement"), as same may be amended.
.Q) The award. pursuant to competitive processes. of CDBG. HOME.
SHIP and Surtax Funds administered by the City's Office of Community
Development.
Q) The award. pursuant to competitive processes. of Cultural Arts
Council Grants.
!ll The acauisition of professional architectural. enaineerina,
landscape architectural. or survey and mappina services procured pursuant to
Chapter 287.055, Florida Statutes (the "Consultants' Competitive Neaotiation Act"),
as same may be amended.
D The procurement of life. health, accident. hospitalization. leaal
expense. annuity insurance. or all or any kinds of other insurance for the officers and
emplovees of the City. and for the dependents of such officers and emplovees. from
a aroup insurance plan.
~ Upon the reauest and written recommendation of the City Manaaer. the
City Commission may. bv resolution adopted bv a five-seventh (5/7ths) vote of the
City Commission. waive compliance of this section under the followina
circumstances:
ill The Covered Contract is necessary to respond to an emeraencv.
where the existence of an emeraencv is reauested. upon written recommendation of
the City Manaaer. and same is determined bv the City Commission. For purposes of
waiver under this subsection onlv. in determinina whether there is an emeraencv.
the City Commission may consider the followina non-exclusive factors:
il The natu re of the Covered Contract:
ill The lenath of the Covered Contract:
!ill The cost of the Covered Contract:
!Y} Whether arants are involved in the Covered Contract and the
reauirements of those arants
y} Whether there is a need to have materials. aoods. and
services furnished immediatelv and the conseauences of a
delav in havina those materials, aoods. and services
furnished:
YU The monetary conseauences if action is not taken
immediatelv:
vii) Anv health. safety. and welfare issues that may be involved.
viii) Increased labor costs. and schedulina of labor:
QU The need to complete work before a strict deadline: or
2Q The impact of delavina one phase or portion of a proiect on
the other phase( s) or portion( s) of the proiect.
Q) Where onlv one Bid response is received:
g Where more than one Bid response is received. but the Bids
demonstrate that none of the bidders can complv with the requirements of this
section. and one or more of the Bids received would oth.erwise have been
responsive if compliance with this section would not have been listed as a
reauirement in the Bid specifications:
Q} Where more than one Bid response is received and Bid responses
are received from:
1)
!ill
ill
one or more bidders that comply with the requirements of
this section and are otherwise responsive: and
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 neaotiated for such Bid). as
submitted by the lowest responsive bidder which complies
with the requirements of this section (or. in the case of a
proposal. the proposal of the top-ranked proposer). would be
at least five percent (50/0). or two hundred fifty thousand
dollars ($250.000) (whichever is less). areater 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
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
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):
then. upon request and written recommendation of the City Manaaer. the City
Commission may. by resolution adopted by a 5/7ths 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.
ili1 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 reaulations of federal or state
law. or where the application would violate or be inconsistent with the terms or
conditions of a arant or contract with the United States of America. the State of
Florida. or the instruction of an authorized representatives of any of these aaencies
with respect to any Qrant or contract.
ill NothinQ in this section shall be construed to limit the City's authority to cancel or
terminate a Contract. deny or withdraw approval to perform a subcontract or provide
supplies. issue a non-responsibility findina. issue a non-responsiveness findina.
deny a person or entity pre-Qualifications, or otherwise deny a person or entity City
business.
ill Timina of Application.
This section shall be applicable 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 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.
SECTION 5. EFFECTIVE DATE
This Ordinance shall take effect the
29th
October
, 200~.
PASSED and ADOPTED this19th day of October, 2
ATTEST:
~t r~
David Dermer
CITY CLERK Robert Parcher
F:\atto\AGUR\RESOS-ORD\Equal Benefits Ordinance (Final).doc
CITY OF MIAMI BEACH
COMMISSION ITEM SUMMARY
to
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:
I Shall the City Commission Adopt the Ordinance?
Item Summa IRecommendation:
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 the Ordinance, to be submitted in the Supplemental Agenda, reflecting the Finance & Citywide
Pro'ects Committee and the Nei hborhood/Communi Affairs Committee's re uested modifications.
Adviso 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 osition for contract com Iiance issues.
Financial Information :
Source of Amount Account Approved
Funds: 1
D 2
3
4
Finance Dept. Total
islative Trackin
Assistant City Manager
City Manager
PDW JMG
DA \2005\Oct1905\Regular\OrdinanceRequirementCont
AGENDA ITEM
DATE
R5A
(O-/1-oS-
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
www.miamibeachfl.gov
COMMISSION MEMORANDUM
To:
Mayor David Dermer and Date: October 19, 2005
Members of the City Commission
Jorge M. Gonzalez 'tI'-~ SECOND READING
City Manager U 0 PUBLIC HEARING
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.
ADMINISTRATION RECOMMENDATION
From:
Subject:
Adopt the Ordinance.
ANAL YSIS
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
proposE:rt 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 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 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 Ordinance may also subject
Contractor to the procedures set forth in the Miami Beach City Code, entitled
IIDebarment 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
c~rtifications 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 lIaggressive enforcement" process that includes but is not
limited to on-site interviews with employees of all covered employers, or enforcement
only when compl::lints 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 country in designing, enacting and 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 if the 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 a domestic partnership......... ...... .............................. ............ ....129 (740/0)
(3) Total number/percentage of contractors who would not provide or
offer equal benefits to all employees including individuals in a domestic
partnership... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 17 (100/0)
(4 ) Total number/percentage of contracts exempted...... ... ... ... ... ............ ..28 (160/0)
(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 "Human 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 provide to employees with
spouses.
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 offer to
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
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 and/or which 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 over $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,
I .
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 by or 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 AlE, landscape AlE, 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 by the 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 VJith 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 post notice to its employees at its place of business that
it provides Equal Benefits.
7) Is there another way for a 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:
ebreach/default under the contract.
etermination of the contract.
emonies due under the contract may be retained by the City until compliance is achieved.
edebarment 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 220/0 of the surveys issued). The specific questions asked and the responses
thereto are listed below:
a. Does your company provide or offer equal benefits to all employees including
individuals in a domestic partnership?
Yes - 64.70/0 No - 33.30/0 N/A or No Answer - 20/0
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?
Yes-76.30/0 No-19.20/0 N/A or No Answer - 4.50/0
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.
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
- NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY given that public hearings will be held by the Mayor and
City Commission of tne City of Miami Bea9h, Florida, in the Commission
Chambers, 3rd floor, City Hall, 1700 Corwention Center Drive, Miami Beach,
Florida, on Wednesday, October 19, 2005, to consider the following:
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
Contractors To Provide Equal Benefits For Domestic Partners," By Mandating
That City Contractors Provide Equal Benefits For Domestic Partners.
Inquiries may be directed to the Procurement Division at (305) 673-7490.
10:20 8.m.
A Resolution' Setting A First Public Hearing To Consider Extending The
Approval Of The Miami Beach Convention Center As A Venue For Conventions,
Expositions Or Events Involving Adult Materials, Pursuant To The Provisions Of
Section 847.0134, Florida Statutes; and Referring The Matter To The Land Use
And Development Committee.
Inquiries may be directed to the Planning Department at (305) 673-7550.
10:30 8.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 Ctlapter 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.
1 0:35 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 Conventiqp Center Drive, 1 st 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, 1st Floor, City Hall, and Miami Beach, Florida 33139.
This meeting may be 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 language interoreters, information on
access for persons 'Nith disabilities. and/or any accommodation to review anv
document or participate in any city-sponsored proceeding. please contact (305) 604'-
2489 (voice), (305)673-7218(TTY) five davs it1 advance to initiate your l'eqL!e~t TTY
users may aiso caii 711 (Florida Relav Service).
Ad #331
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