Attachment SSS
OFFICE OF THE CITY ATTORNEY
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MURR~ Y H. DUBBIN
City Attorney
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COMMISSION MEMOR.\.NDUM NO.
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Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
DATE: JANUARY 26,2000
TO:
MA YOR NEISEN KASDIN
MEMBERS OF THE CITY COMMISSION
MURRAY DUBBINA,J ~
CITY ATTOR1~EY IWI
FROM:
LA\VRENCE A. LEVY
CITY MANAGER
FIRST READING
SUBJECT: ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAlVII BEACH, FLORIDA, AMENDING CHAPTER 2, ARTICLE VI,
ENTITLED "PROCUREME~l", BY CREATING DIVISION 5, ENTITLED
"DEBARMENT" , SECTIONS 2-397 THROUGH 2-406 OF THE CODE OF
THE CITY OF MIAMI BEACH, FLORIDA, PROVIDING FOR
DEBARMENT OF CONTR.\.CTORS FROM CITY \VORK; PROVIDING
FOR SEVERABILITY; CODIFICATION; REPEALER; AND AN
EFFECTIVE DATE.
The City Attorney's Office has drafted the above-referenced Debarment Ordinance as
requested and sponsored herein by Commissioner David Dermer.
The attached Ordinance is thus ready for City Commission review.
RJA\.:"w
F"A TTO\_~GUR\RESOS\"fE~fOS\DEBAMfNT,ORD
Attachment
Agenda Item R 5 S
Date J - 2J. " ~O 0
1700 Convention Center Drive -- FourtltHoor -- Miami Beach, Florida 33139
ORDINANCE NO
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 2, ARTICLE
VI, ENTITLED "PROCUREMENT", BY CREATING DIvlSION 5,
ENTITLED "DEBARMENT" , SECTIONS 2-397 THROUGH 2-406 OF THE
CODE OF THE CITY OF ~nAMI BEACH, FLORIDA, PROVIDING FOR
DEBARt\'IENT OF CONTRACTORS FROM CITY WORK; PROVIDING
FOR SEVERABILITY; CODIFICATION; REPEALER; AND A.'I"
EFFECTIVE DATE.
NO\V THEREFORE, BE IT ORDAIl\'ED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF 1\-1IA1\'O BEACH, FLORIDA:
SECTION 1. Miami Beach City Code, Chapter 2, entitled "Administration", Article VI, entitled
"Procurement", is hereby amended by adding the following Division 5, entitled
"Debarment of Contractors from City Work" reading as follows:
Division 5. Debarment of contractors from City work.
Section 2-397 Purvose of debarment.
W The City shall solicit offers from. award contracts to. and
consent to subcontractors with responsible contractors only.
To effectuate this policy. the debarment of contractors from
City work may be undertaken.
(Q} The serious nature of debarment requires that this sanction be
imposed only when it is in the public interest for the City's
protection. and not for purposes of punishment. Debarment
shall be imposed in accordance with the procedures containeq
in this ordinance.
Section 2-398 Definitions.
W A lliate. us'ne c ncems r anizati ns lobbvi ts or
other individuals are affiliates of each other if. directly or
indirectly. (1) either one controls or has the power to control
the other. or Oi) a third party controls or has the power to
control both. Indicia of control include. but are not limited to,
interlocking management or ownership. identity of interests
among family members. shared facilities and equipment.
common use of emplovees. or a business entitv organized by
a debarred entitv., individual. or affiliate following debarment
of a contractor that has the same or similar management.
Qvmership. or principal employees as the contractor that was
debarred or suspended.
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(b} Civil ;ud~ment means a iudgment or findin~ of a civil offense
bv any court of competent iurisdiction.
W Contractor means any individual or other legal entity that:
ill Directlv or indirectlv (e. goo through an
affiliate). submits offers for or is awarded. or
reasonablv mav be expected to submit offers
for or be awarded. a Citv contract. or
ill Conducts business. or reasonabl\.' ma\.' be
expected to conduct business. with the City as
an agent representative or subcontractor of
another contractor.
@ Conviction means a iudgment or conviction of a criminal
offense. be it a felonv or misdemeanor. by anv court of
competent iurisdiction. whether entered upon a verdict or a
plea. and includes a convictions entered upon a plea of nolo
contendere.
W Debarment means action taken bv the Debarment Committee
to exclude a contractor (and. in limited instances specified in
this ordinance, a bidder or proposer) from Citv contracting
and City approved subcontracting for a reasonable. soecified
period as provided in subsection (i) below: a contractor so
excluded is debarred.
ill Debarment Committee means a group of seven (7) individual
members. each appointed bv the individual Citv,
Commissioners. to evaluate and. if warranted, to Impose
debarment.
{g} Indictment means indictment for a criminal offense. An
information or other filing bv competent authority charging a
criminal offense shall be given the same effect as an
indictment.
{h). Legal oroceeding means anv civil iudicial proceeding to
which the City is a partv or anv criminal proceeding. The
term includes appeals from such proceedings.
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ill List Qf debarred contractors means a list compiled.
maintained and distributed bv the City's Procurement Office.
containing the names of contractors debarred under the
procedures of this ordinance.
ill Preponderance of the evidence means proof bv information
that. compared with that opoosing it. leads to the conclusion
that the fact at issue is more probablv true than not.
Section 2-399 List of debarred contractors.
ill The City's Procurement Office, as the agencv charged "vith the
implementation of this ordinance. shall:
ill Compile and maintain a current. consolidated list (List) of all
contractors debarred bv Citv departments. Such list shall be
public record and shall be available for public inspection and
dissemination:
ill Periodicallv revise and distribute the List and issue
supplements. ifnecessarv. to all departments. to the office of
the City Manager. and to the Mavor and City Commissioners;
and
ill Included in the List shall be the name and telephone number
of the Citv official responsible for its maintenance and
distribution.
(b} The List shall indicate:
ill The names and addresses of all contractors debarred. In
alphabetical order:
ill The name ofthe department that recommends initiation of the
debarment action~
ill The cause for the debarment action. as is further described
herein. or other statutorY or regulatorY authoritv:
ill The effect of the debarment action:
ill The termination date for each listing:
(Q) The contractor's certificate of competencv or license number,
when applicable;
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ill The person through whom the contractor is qualified. when
applicable:
00 The name and telephone number of the ooint of contact in the
department recommending the debarment action.
W The City's Procurement Office shall:
ill In accordance with internal retention procedures. maintain
records relating the each debarment;
ill Establish procedures to provide for the effective use of the
List. including internal distribution thereof. to ensure that
departments do not solicit offers from. av/ard contracts to, or
consent to subcontractors ",lith contractors on the List and
ill Respond to inquiries concerning listed contractors and
coordinate such responses with the department that
recommended the action.
Section 2-400 Effects of debarment.
W Debarred contractors are excluded from receiving contracts. and departments
sh I not licit ffe s fi 0 award co tract t r co ent to ubcontracts
with these contractors. unless the City Manager detennines that an emergencv
exists iustifying such action. and obtains approval from the Mavor and City
Commission. which aporoval shall be given bv Sl7ths vote of the Citv
Commission at a regularlv scheduled Citv Commission meeting. Debarred
contractors are also excluded from conducting business with the City as
agents. reoresentatives. subcontractors or partners of other contractors.
ili} Debarred contractors are excluded from acting as individual sureties.
Section 2-401 Continuation of current contracts.
Worn encin on the effi ctive date of this ordinance all ro osed Citv
contracts. as \vell as Reauest for Proposals (RFP). Request for Qualifications
RF . Re uests for Letters of Interest LI' or bids i sued bv the City.
shall incorporate this ordinance and specify that debarment ma'.' constitute
grounds for termination of the contract. as well as disqualification from
consideration on anv RFP. RFQ. RFLL or bid.
(Q} The debarn1ent shall take effect in accordance with the notice provided bv the
it Mana er ursuant to ubsection 2-405 h below exce t that if a Citv
department has contracts or subcontracts in existence at the time the
contractor was debarred. the debarment period may commence upon the
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conclusion of the contract subject to aporoval of same bv Sl7ths vote of the
J\fayor and Citv Commission at a regularlv scheduled meeting.
ill City departments mav not renew or otherwise extend the duration of current
contracts. or consent to subcontracts with debarred contractors. unless the
City Manager determines that an emergency exists iustifving the rene\va] or
extension or for an approved extension due to delay or time extension for
reason bevon th contractor's control and such acti n is a oroved v 517ths
vote of the j\favor and Citv Commission at a regularlv scheduled meeting",
@ TO further work shall e awarded to a debarred contractor in connection \vith
a c ntinuinO' contract where the \'lork is divided imo se arate discrete g;roUDS
and the Citv's refusa! or denial of further \\Cork under the contract will not
result in a breach of such contract.
Section 2-402 Restrictions on subcontractinf.
W \Vhen a de arred contractor i r osed as a subcontractor for any
subcontract subject to Citv approval. the department shall not consent to
subcontracts \\lith such contractors unless the Citv Manalier determines that
an emergencv exists iustifying such consent. and the Mavor and City
Commission approves such decision. bv Sl7ths vote. at a regular!v scheduled
meeting.
.Qi} hall no be res onsible for any increases in ro' ect co ts or other
expenses incurred bv a contractor as a result of rejection of orooosed
subcontractors pursuant to subsection 2-402(a) above. provided the
subcontractor was debarred prior to bid openinl? or opening of oroposals,
where the contract was awarded bv the Cin.' pursuant to an RFP. RFQ. RFLI.
or bid.
Section 2-403 Debarment.
W he D bannent Committee mav in th"" ubIic interest de af a
contractor for anv of the causes listed in this ordinance. using the
procedures outlined belo\v. The existence of a cause for debarment.
hmvever. does not necessarilv require that the contractor be debarred;
the seriousness of the contractor's acts or omissions and any
mitigating factors should be considered in makim: anv debarment
decision.
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(Q} Debarment constitutes debarment of all officers. directors.
shareholders o\\-11ing or controlling- twenty-five (25) percent or more
of the stock. partners, divisions or other organizational elements of
the debarred contractor, unless the debarred decision is limited bv its
terms to specific divisions. organizational elements. or commodities.
The Debarment Committee's decision includes anv existing aftiliates
of the contractor. if thev are (i) specifically named and (ii) given
written notice of the proposed debarment and an opportunity to
respond. Future affiliates of the contractor are subject to the
Debarment Committee's decision.
W A contractor's debarment shall be effective throughout Citv
government.
Section 2-404 Causes for debarment.
W The Debarment Committee shall debar a contractor for a conviction
or civil judgment:
ill For commission of a fraud or a criminal offense in connection
with obtainin~, attempting to obtain. performing. or making
a claim upon a public contract or subcontract or a contract or
subcontract funded in \vhole or in part with public funds;
ill For violation of federal or State antitrust statutes relating to
the submission of offers:
ill For cow.mission of embezzlement. theft forgerY. briberv.
falsification or destruction of records. making false
statements. or receiving stolen propertv;
ill Which makes the Citv the prevailing pam' in a legal
proceeding. and a court determines that the lawsuit between
the contractor and the City \vas frivolous or filed in bad faith.
(Q} The Committee mav debar a contractor. (and, in limited instances set
forth hereinbelow. a bidder or proposer) based UDon a preponderance
of the evidence, for:
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ill Violation of the terms of a Citv contract or subcontract. or a
contract or subcontract funded in whole or in part bv Citv
funds. such as failure to perform in accordance \\ith the terms
of one (1) or more contracts as certified bv the Citv
department administering the contract: or the failure to
perform. or unsatisfactorilv perform in accord2J1ce \'lith the
terms of one (1) or more contracts, as ce:1ified bv an
independent registered architect. engineer. or general
contractor.
ill Violation of a City ordinance or administrative order which
lists debarment as a potential penal tv.
ill Anv other cause which affects the responsibility of a City
contractor or subcontractor in performing Citv work.
Section 2-405 Debarment Drocedures.
W Requests for the debarment of contractors shall be made in \vTiting to
the Office of the City Manager. Upon receipt of a request for
debarment the City Manager shall transmit the request to the Mavor
and Citv Commission at a regularIv scheduled meeting. The Mavor
and Citv Commission shall transmit the request to a person or oersons
who shall be char~ed bv the City Commission with the dutv of
promptly investigatin~ and preparing a \.\TItten report(sl concerning
the proposed debarment. including the cause and grounds for
debarment as set forth in this ordinance.
(Q} Upon completion of the aforestated written report. the Citv Manager
shall forward said report to the Debarment Committee. The City's
Procurement Office shall act as staff to the Debarment Committee
and. with the assistance of the Citv department which preoared the
report. present evidence and argument to the Debarment Committee.
W Notice of proposal to debar. \Vithin ten (j 0) working davs of the
Debarment Committee having received the request for debarment. the
Citv's Procurement Office, on behalf of the Debarment Committee,
shall issuer a notice of proDosed debarment advising the contractor
and anv specificallv named affiliates. bv certified mail. return receipt
requested. or personal service. containing the followinQ' information:
ill That debarment is being considered:
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ill The reasons and causes for the proposed debarment in terms
sufficient to put the contractor on notice of the conduct or
transaction( s) upon which it is based:
ill That a hearing shall be conducted before the Debarment
Committee on a date and time not less than thirtv (30) davs
after service of the notice. The notice shall also advise the
contractor that it may be represented bv an attomev. mav
present documentary evidence and verbal testimonv. and mav
cross-examine evidence and testimonv presented against it.
ill The notice shall also describe the effect of the issuance of the
notice of proposed debarment and of the potential effect of an
actual debarment.
@ No later than seven (7) working days prior to the scheduled hearing
date. the contractor must furnish the Citv's Procurement Office a list
of the defenses the contractor intends to present at the hearing. If the
contractor fails to submit the list in VvTiting. at least seven (7)
working davs prior to the hearing. or fails to seek an extension oftime
within which to do so. the contractor shaH have \vaived the
opportunity to be heard at the hearing. The Debarment Committee
has the right to grant or denv an extension of time. and its decision
mav only be reviewed upon an abuse of discretion standard.
W Hearsav evidence shaH be admissible at the hearing but shall not form
the sole basis for initiating a debannent procedure nor the sole basis
of anv detennination of debarment. The hearing shall be transcribed,
taped or otherwise recorded bv use of a court renorter. at the election
of the Committee and at the expense of the City. Conies of the
hearing tape or transcript shall be furnished at the expense and
request of the requesting party.
ill Debarment Committee's decision. In actions based upon a conviction
or iudgment. or in which there is no genuine disDute over material
facts. the Debannent Committee shall make a decision on the basis
of all the undisputed. material information in the administrative
record. including anv undisputed. material submissions made bv the
contractor. Where actions are based on disDuted evidence. the
Debarment Committee shall decide what weight to attach to evidence
of record. iudge the credibility of witnesses, and base its decision on
the preponderance of the evidence standard. The Debarment
Committee shall be the sole trier of fact. The Committee's decision
shall be made within ten (l0) working davs after conclusion of the
hearing. unless the Debannent Committee extends this period for
good cause.
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(gj The Committee's decision shall be in writing and shall inciude the
Committee's factual findings. the principal causes of debarment as
enumerated in this ordinance. identification of the contractor and all
affiliates affected bv the decision. and the specific term. including
duration. of the debarment imposed.
(.h} Notice of Debarment Committee's decision.
ill If the Debarment Committee decides to imnose debarment.
the City Manager shall give the contractor and anv affiliates
involved \.witten notice bv certified mail. return receipt
requested, or hand deliverv. within ten (10) working davs of
the decision. specitving the reasons for debarment and
including a COD\' of the Committee's \VTItten decision: stating
the period of debarment. including effective dates: and
advising that the debarment is effective throughout the Citv
departments.
ill If debarment is not imposed. the City Manager shall notifv the
contractor and anv affiliates involved. bv certified mail. return
receipt requested. or personal service. within ten (10) working
davs of the decision.
ill All decisions of the Debarment Committee shall be final and shall be
effective on the date the notice is signed bv the (it\' Manager.
Decisions of the Debarment Committee are subject to review bv the
Appellate Division of the Circuit Court. A debarred cont:-actor mav
seek a stav of the debarment decision in accordance \\;th the Florida
Rules of ApoeUate Procedure.
Section 2-406 Period Qf debarment.
W The period of debarment imposed shall be within the sole discretion
of the Debarment Committee. Debarment shall be for a oeriod
commensurate with the seriousness of the cause(st and. where
applicable. within the guidelines set forth below. but in no event shall
exceed five (5) vears.
ill.} The following guidelines in the period of debarment shall aoolv
exce t \vhere miti atincy or acrcyravatincy circumstances Tustifv
deviation:
ill For commission of an offense as described in subsection 2-
404(a)(1): five (5) vears.
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ill For commission of an offense as described in subsection 2-
404(a)(2): five (5) vears.
ill F or commission of an offense as described in subsection 2-
404(a)(3): five (5) vears.
ill For commission of an offense as described in subsection 2-
404(a)(S): two (2) to five (S) vears.
ill For commission of an offense as described in subsections 2-
404(b)(1) or (2): two (2) to five (5) vears.
ill F or commission of an offense as described in subsection 2-
404(b)(3): two (2) to five (5) years.
01 The Debarment Committee may. in its sole discretion. reduce the
period of debarment upon the contractor's written request for reasons
such as:
ill Newlv discovered material evidence:
ill Reversal of the conviction or civil judgment upon which the
debarment was based:
ill Bona fide chan~e in o\\'TI.ership or management;
ill Elimination of other causes for which the debarment was
imposed: or
ill Other reasons the Debarment Committee deems appropriate.
@ The debarment contractor's V\Titten request shall contain the reasons
for requesting a reduction in the debarment period. The City's
Procurement Office. with the assistance of the affected depart~ent,
shall have thirty (30) davs from receipt of such request to sub _it a
written response thereto. The decision of the Debarment Committee
regarding a request made under this subsection is final and non-
appealable.
SECTION 2. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder
shall not be affected by such invalidity.
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SECTION 3. CODIFICA TION~
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.
SECTION 4. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and 'the same are hereby
repealed.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect on the day of
,2000.
PASSED and ADOPTED this
day of
,2000.
ATTEST:
~1A YOR
CITY CLERK
RJAIkw(F:\A ITOIAGUR\'U!SOS\OEBARMl>'T.ORO)
APPROVED AS TO
FORM & LANGU~~E
& FOR E'AECUTiON
4t{t1!/Jtf= V;t.ClO
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After Action
January 26, 2000
City of Miami Beach
R5J City Attorney City Commission Memorandum No. 86-00
An Ordinance Amending Chapter 2, Article VI, Entitled "Procurement", by Creating Division 5,
Entitled "Debarment", Sections 2-397 through 2-406 of the Code of the City of Miami Beach, Florida,
Providing for Debarment of Contractors from City Work; Providing for Severability; Codification;
Repealer; and an Effective Date. First Readinl!
Recommendation: Approve the Ordinance on first reading and schedule a public hearing for second
and final reading.
(Requested by Commissioner David Dermer)
ACTION: Ordinance approved on first reading as amended. Motion made by Commissioner
Dermer; seconded by Commissioner Bower; ballot vote: 5-0; absent: Mayor Kasdin and
Commissioner Liebman. Second reading and public hearing scheduled for February 9th at 11 :00
a.m. R. Parcher to publish notice. Judy Hoanshelt to place on agenda. Raul Aguila to incorporate
amendments.
Amendments:
I) 2-398(a) line 5 "but not limited to, a fiduciary relation which results from the manifestation of
consent by one individual to another that the other shall act on his behalf and subject to his
control, and consent by the other so to act; interlocking management".
2) 2-398(f) "Each appointed by the Mavor and individual city commissioners".
3) 2-398(j)" Preponderance of the evidence Greater weig:ht of the evidence".
4) 2-403(b) delete last sentence: "Future affiliates of the contractor are subject to the debarment
committee's decision."
5) 2-404(b)(3) delete (3) "Any other cause which affects the responsibility of a city contractor or
subcontractor in performing city work.".
6) 2-406(b)(4) "Subsection 2-404(a)(~):".
7) 2-406( d) delete last sentence. "The decision of the Debarment Committee regarding a request
made under this subsection is final and non-appealable".
City Clerk's Note: Raul's copy of the amended ordinance.
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