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Item R5 O_ IG Contract Fee_First ReadingOrdinances - R5 O COMMISSION MEMORANDUM TO:Honorable Mayor and Members of the City Commission FROM:Raul J. Aguila, City Attorney DATE:December 11, 2019 First Reading SUBJECT: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 3 THEREOF, ENTITLED CONTRACT PROCEDURES, BY CREATING SECTION 2-378, ENTITLED “INSPECTOR GENERAL CONTRACT FEE,” TO ESTABLISH AN INSPECTOR GENERAL CONTRACT FEE TO BE INCORPORATED INTO THE CONTRACT PRICE OF CERTAIN CITY CONTRACTS, AND TO PROVIDE FOR EXEMPTIONS THEREFROM; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND FOR AN EFFECTIVE DATE. BACKGROUND/HISTORY On November 6, 2018, the City's voters approved an amendment to the City Charter, creating Article IX, which creates the City of Miami Beach Office of Inspector General (“OIG” or “Office of Inspector General”); establishes the functions of the office; provides the Inspector General with the power to subpoena witnesses, administer oaths, and require production of records, in order to conduct its investigations; and provides that the Inspector General's appointment, term, functions, authority, and powers shall be further established by Ordinance. On February 23, 2019, the Mayor and City Commission adopted Ordinance No. 2019-4239, to implement the provisions of the newly created Article IX of the City Charter. On October 16, 2019, pursuant to Section 2-256(b)(2) of the City Code, the Mayor and Commission appointed Joseph M. Centorino as the first Inspector General of the City of Miami Beach. ANALYSIS The purpose of the proposed ordinance is to create a framework for a dedicated City funding source to fund the activities and operations of the Office of the Inspector General. By dedicating amounts that could only be used for the OIG, the ordinance would provide a measure of independence and predictability with regard to funding for the OIG. A draft of the proposed ordinance is attached as an exhibit to this Memorandum. The ordinance Page 480 of 796 is similar to the IG Contract fee established by Miami-Dade County pursuant to Section 2-1076 of the County Code, to fund the operations of the County’s inspector general. Miami-Dade County’s IG contract fee is .25%. The proposed ordinance would assess an “IG Contract Fee” on certain City contracts and purchase orders, consisting of a fixed percentage of the total amount of the contract. The amount would be incorporated within the contract price, and the percentage deducted from each progress payment to the contractor. The City’s FY2020 General Fund budget for the Office of Inspector General is approximately $1.450 million. The Administration estimates that an IG Contract Fee of one half of one percent (0.5%) would generate approximately $550,000. Accordingly, in order to cover the $1.45 million budget covered by the General Fund, the ordinance proposes an IG contract fee of 1.50%, which percentage would generate approximately $1,650,000. Importantly, the proposed ordinance only provides the mechanism for identifying a dedicated funding source for the OIG. The actual appropriation of funds for the OIG, and the final budget for the department, is subject to an annual appropriation by the City Commission as part of the annual budget process. Accordingly, if the amounts generated by the IG Contract Fee in any given year are insufficient to fund the budget the City Commission has proposed for the OIG in the next fiscal year, the City Commission would need to identify other sources of funding through the annual budget process to make up the difference. Similarly, if the amounts generated by the IG Contract Fee in any given year exceed the amounts required to fund the OIG budget in the next fiscal year, such “surplus” amounts would be carried forward until appropriated by the City Commission. In this regard, it should be noted that as the IG Contract Fee would only apply after March 1, 2020, there is a ramp up period, and the IG Contract Fee is unlikely to fully fund the OIG budget in the first two years following its adoption. The ordinance includes a number of exemptions for categories of contracts to which an IG contract fee should not apply, either because of the nature of the contract service being provided, or because implementation would present challenges. For example, the ordinance exempts contracts with governmental agencies, including grants that may only be used for restricted purposes; contracts for specialized services, such as insurance, financial advisory services, legal, or audit services; contracts or purchase orders under the City’s bid thresholds (which would make implementation difficult), or “piggyback” contracts where the City’s contract incorporates the exact terms and conditions of a previously competitively bid contract. Further, as the assessment is expenditure based, the ordinance clarifies that the IG Contract fee does not apply to revenue-generating contracts, such as leases, concession agreements, and management agreements. Finally, the ordinance requires that after March 1, 2020, each competitive solicitation and covered City contract include mandatory contract language implementing the IG contract fee and the Office of Inspector General’s powers as a matter of contract. The mandatory contract language, coupled with the assessment of the IG Contract Fee, would serve to place every contractor on notice as to the applicability of the OIG to the contract, and to each contractor’s performance of work on behalf of the City. The contract language would also provide the City with an additional remedy (i.e., a breach of contract action) for a contractor’s failure to comply with the broad right of access afforded to the OIG to review, audit, inspect and investigate all City contracts under the City Charter and City Code. Page 481 of 796 Applicable Area Citywide Is this a Resident Right to Know item? Does this item utilize G.O. Bond Funds? Yes No Legislative Tracking Office of the City Attorney Sponsor Commissioner Mark Samuelian ATTACHMENTS: Description Ordinance Page 482 of 796 ORDINANCE NO. 2019------- 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 3 THEREOF, ENTITLED CONTRACT PROCEDURES, BY CREATING SECTION 2-378, ENTITLED "INSPECTOR GENERAL CONTRACT FEE," TO ESTABLISH AN INSPECTOR GENERAL CONTRACT FEE TO BE INCORPORATED INTO THE CONTRACT PRICE OF CERTAIN CITY CONTRACTS, AND TO PROVIDE FOR EXEMPTIONS THEREFROM; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION AND FOR AN EFFECTIVE DATE. WHEREAS, on November 6, 2018, the City's voters approved an amendment to the City Charter, creating Article IX, which creates the City of Miami Beach Office of Inspector General; establishes the functions of the office; provides the Inspector General with the power to subpoena witnesses, administer oaths, and require production of records, in order to conduct its investigations; and provides that the Inspector General's appointment, term , functions, authority, and powers shall be further established by Ordinance; and WHEREAS, on February 23, 2019, the Mayor and City Commission adopted Ordinance No. 2019-4239, to implement the provisions of the newly created Article IX of the City Charter; and WHEREAS, the Mayor and City Commission desire to create a dedicate funding source for the Office of Inspector General, by assessing an "IG Contract Fee" consisting of a fixed percentage of certain City contracts, as provided herein. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: Section 1. That Chapter 2, entitled "Administration," Article VI thereof, entitled "Procurement," Division 3 thereof, entitled "Contract Procedures," of the Code of the City of Miami Beach is hereby amended by creating Section 2-378 as fol lows: ARTICLE VI. PROCUREMENT CHAPTER2 ADMINISTRATION * * * Sec. 2-378 -Inspector General Contract Fee. Page 483 of 796 a. The inspector general may. on a random basis. perform reviews. audits. inspections. or investigations of any past. present. or proposed city contracts. The cost of random reviews, audits. inspections and investigations shall, except as provided in subsection (1) through (15) below. be incorporated into the contract price of all city contracts. and shall consist of one and one half percent (1.50%) of the contract price (hereinafter the "IG contract fee"). The IG contract fee shall not apply to the following contracts: ill auditing contracts; m insurance contracts; Q.) contracts for legal services; ill contracts for financial advisory services; {fil leases and facility rental agreements; ,{fil concession agreements; ill management agreements; .(fil revenue-generating contracts; {ill purchase orders or other agreements for the purchase of goods and services under the amount established for formal bids in section 2-366(a) of the city code. typically referred to as open market purchases; ilill federal, state and local government agreements. including grants; LJ..12 interlocal agreements; f1l) grant agreements; and 11.l} independent contractor agreements; and !.1...1) contracts awarded pursuant to section 2-391 of the city code, based on awards by cooperative alliances or public entities that have previously utilized a competitive procurement process ("piggyback" contracts); and i.1fil contracts for emergency purchases pursuant to section 2-396 of the City code. Notwithstanding the foregoing. the city commission may by resolution specifically authorize the inclusion of the IG contract fee in any contract. b. Nothing contained in this subsection shall in any way limit the powers of the inspector general to perform audits. inspections. reviews and investigations on all city contracts including, but not limited to. those contracts specifically exempted from the IG contract fee. 2 Page 484 of 796 c. All city contracts and competitive solicitations shall include the following contract language: 1. Pursuant to Section 2-256 of the code of the city of Miami Beach. the city has established the Office of the Inspector General which may, on a random basis, perform reviews. audits. inspections and investigations on all city contracts. throughout the duration of said contracts. This random audit is separate and distinct from any other audit performed by on on behalf of the city. To pay for the functions of the Office of Inspector General, all payments to be made under this contract will be assessed one and one half percent (1 .50%) of the total amount of the payment (the "IG contract fee"), to be deducted from each progress payment as the same becomes due. unless this contract is exempt from the payment of the IG contract fee pursuant to Section 2-378 of the City Code. The contractor, vendor. or consultant (hereinafter. the "contractor") shall, in stating its agreed prices, be mindful of the IG contract fee assessment, which will not be separately identified. calculated or adjusted in the proposal or bid form. 2. The Office of the Inspector General is authorized to investigate city affairs and empowered to review past, present and proposed city programs. accounts. records, contracts and transactions. In addition, the Inspector General has the power to subpoena witnesses, administer oaths. require the production of witnesses and monitor city projects and programs. Monitoring of an existing city project or program may include a report concerning whether the pro ject is on time, within budget and in conformance with the contract documents and applicable law. The Inspector General shall have the power to audit, investigate. monitor. oversee, inspect and review operations. activities. performance and procurement process including but not limited to project design , bid specifications, (bid/proposal) submittals, activities of the contractor, its officers, agents and employees, lobbyists, city staff and elected officials to ensure compliance with the contract documents and to detect fraud and corruption. ~ Upon ten ( 10) days written notice to the contractor. the contractor shall make all requested records and documents available to the Inspector General for inspection and copying. The Inspector General is empowered to retain the services of independent private sector auditors to audit. investigate, monitor. oversee. inspect and review operations activities. performance and procurement process including but not limited to project design , bid specifications, (bid/proposal) submittals. activities of the contractor. its officers, agents and employees, lobbyists, city staff and elected officials to ensure compliance with the contract documents and to 3 Page 485 of 796 detect fraud and corruption. 4. The Inspector General shall have the right to inspect and copy all documents and records in the contractor's possession, custody or control which in the Inspector General's sole judgment, pertain to performance of the contract. including, but not limited to original estimate files. change order estimate files. worksheets. proposals and agreements from and with successful subcontractors and suppliers, all project- related correspondence. memoranda. instructions. financial documents. construction documents. (bid/proposal) and contract documents, back-change documents, all documents and records which involve cash, trade or volume discounts, insurance proceeds. rebates, or dividends received, payroll and personnel records and supporting documentation for the aforesaid documents and records. 5. The contractor shall make available at its office at all reasonable times the records, materials. and other evidence regarding the acquisition (bid preparation) and performance of this contract, for examination. audit, or reproduction, until three (3) years after final payment under this contract or for any longer period required by statute or by other clauses of this contract. In addition: i. If this contract is completely or partially terminated, the contractor shall make available records relating to the work terminated until three (3) years after any resulting final termination settlement; and ii. The contractor shall make available records relating to appeals or to litigation or the settlement of claims arising under or relating to this contract until such appeals, litigation. or claims are finally resolved. 6. The provisions in this section shall apply to the contractor. its officers. agents. employees, subcontractors and suppliers. The contractor shall incorporate the provisions in th is section in all subcontracts and all other agreements executed by the contractor in connection with the performance of this contract. 7. Nothing in this section shall impair any independent right to the city to conduct audits or investigative activities. The provisions of this section are neither intended nor shall they be construed to impose any liability on the City by the contractor or third parties. d. The provisions of this section shall not apply to any contract entered into prior to March 1, 2020, or to any competitive solicitation issued prior to March 1, 2020. SECTION 2. REPEALER. All ordinances or parts of ordinances in conflict herewith be and the same are 4 Page 486 of 796 hereby repealed. SECTION 3. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. portions of this ordinance. SECTION 4. 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 Miami Beach City Code. 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 on the 1st day of February, 2020. PASSED AND ADOPTED this __ day of ______ , 2019. ATTEST: Rafael E. Granado, City Clerk Underline denotes additions Strikethrough denotes deletions Dan Gelber, Mayor DeEJ81s Strikstt=:lmEJ§h denotes deletions at Second Reading (Sponsored by Commissioner Mark Samuelian) 5 APPROVED AS TO FORM & LANGUAGE 0 & GXEC(UTION ~ .. JK. \-. ,z-J-1'\ City Attorney fl# Dote . Page 487 of 796