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06-A Work by Day PolicyDRAFT F:~Attorney~ALICE~ESWORK\CURRENT\Work by the Day Policy Res.wpd October 9, 2003 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, ESTABLISHING A COMPREHENSIVE POLICY FOR THE PERFORMANCE FOR WORK BY THE DAY PURSUANT TO THE PROVISIONS OF SECTION 252.022 (a) 5 OF THE TEXAS LOCAL GOVERNMENT CODE; ESTABLISHING DEFINITIONS; ESTABLISHING PROCEDURES, GUIDELINES, AND REQUIREMENTS FOR QUALIFICATIONS OF CONTRACTORS; REPEALING ALL RESOLUTIONS OR PORTIONS OF RESOLUTIONS IN CONFLICT HEREWITH; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City Council desires to establish a comprehensive policy for the performance of work by the day on behalf of the City of Paris; and, WHEREAS, the City Council desires that the adoption of said policy be in full conformance with Chapter 252, Section 252.022 (a) 5 of the Local Government Code; and, WHEREAS, the City Council desires to establish limits for the aggregate cost of projects that may be performed by the day, to establish qualifications for contractors performing said work, and to establish procedures to be followed by City staff in the selection and performance of projects paid for by the day; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the findings set out in the preamble to this resolution are hereby in all things approved. Section 2. That there is hereby established a policy for the performance of work by the day by contractors on behalf of the City of Paris, said policy to read as follows: "Policy for Performance of Work By The Day by Contractors on Behalf of the City of Paris Section. 1. Definitions. City Engineer. The phrase City Engineer shall mean the officially designated City Engineer of the City of Paris, or his or her designee. -1- Day. For purposes of this policy, a "day" shall be defined as a continuous 24-hour period beginning at 3:00 p.m. and ending at 2:59 p.m. Emergency procurement. Emergency procurement shall mean a procurement of work, as that term is defined herein, on behalf of the City of Paris, the performance of which is required because of a public calamity that requires the immediate appropriation of money to relieve the necessity of City residents, to preserve the property of the City, to preserve or protect the public health or safety of City residents, or made necessary because of unforseen damage to public machinery, equipment, or other property, or any other similar circumstance which subjects City residents, City property, or the property of others to the immediate or potential risk of damage, and the alleviation of said risk can only be accomplished by the immediate procurement of contracted materials and services in the performance of the work necessary to alleviate said risk. Work. Work as used in this policy shall mean the utilization of materials, equipment, and labor and the expenditure of public funds for such materials, equipment, and labor in the performance of public improvement projects, as such projects are generally described in Chapter 252 of the Local Government Code and Section 75 of the City Charter. Such work to include but not be limited to construction of sewer and water utility lines; manholes; drainage and drainage-way improvements, including pipes, culverts and other appurtenances; demolition or removal of encroachments on easements necessary for the installation of utilities and utility lines; and repairs to existing City utility facilities, including water and sewer treatment plants, lift stations, and other similar facilities. Work as used in this policy shall not include the cost of acquiring easements, rights-of-way, or other property interests. Work by the day. Work by the day under this policy shall mean work performed by contractors on behalf of the City and paid for by the City by the day as such work progresses, such that said work is contracted by the day and completed when the other party has worked for the day and the City has paid for such work. Additional work may be contracted for and paid, again on a daily basis, as needed, as the work progresses, provided such work is authorized under this policy. Work contracted with the understanding, whether explicit or implied, that the City is obligated to pay for and the contractor is obligated to perform additional work beyond a day's duration, even if paid for by the day, shall not be considered work by the day and shall not be authorized under this policy. Generally, a contract that obligates the City to pay for all future work, or for a party to provide day labor beyond a day's duration to do the future work on a project, is not a contract for work performed and paid by the day, notwithstanding that payment for the work performed is on a daily basis. -2- Section 2. Work which may be conducted by the day. Work to address an emergency as that term is defined herein may be performed by the day, not subject to any other limitations herein, provided the following requirements are satisfied: 1. A clearly identifiable emergency has occurred. The City Public Works Director, Director of Utilities, or City Engineer have identified such an emergency, and certified that such emergency exists to the City Manager. In the instance where an emergency will reasonably involve the expenditure of sums totaling an amount greater than $25,000.00, the City Manager shall notify as soon as reasonably possible, the Mayor and all members of City Council as to the nature of said emergency, the anticipated duration of said emergency, the remedial measures being taken by the City to remedy the emergency, the anticipated cost of said emergency, and any other information which the City Manager may reasonably have. To the extent reasonably possible, the City Manager shall undertake all efforts necessary to minimize the expense incurred in remedying the emergency, at the same time taking into account the hazards and risks associated with the continuation of the emergency to City property, citizens, and the property of others. All procurements made to remedy said emergency, if conducted on a work by the day basis, shall as much as reasonably possible conform to the requirements of this policy as such requirements would apply to non-emergency work by the day, save and except that such procurements as are made to remedy said emergency shall not be subject to the expenditure limitations set out herein. Work by the day may be used in the performance of City projects when such projects do not constitute an emergency, provided such projects are performed in conformance with the requirements of this policy. In no event shall any work performed by the day on a particular project exceed $50,000.00 in total expenditures for labor and equipment, unless such work by the day is necessitated by an emergency. For purposes of this policy, sequential or grouped projects shall not be appropriate for work by the day, unless the total amount expended on labor and equipment for said sequential or grouped projects does not exceed $50,000.00. Sequential or grouped projects shall mean those projects which, -3- by example, require the City to construct utility improvements from point A to point D, and the total cost would exceed the cost limits established for work by the day under this policy, but which have been broken into smaller segments and at smaller incremental costs; for example, projects extending from point A to point B, from point B to point C, and finally, from point C to point D. Section 3. Qualifications for contractors performing work by the day. The City Engineer shall establish a registration procedure for contractors qualified to perform work by the day for the City of Paris. As part of said registration procedure, each contractor shall be required to provide corporate or company name, address, primary business location, names of principles, and other general information associated with identifying the contractor. The City Engineer shall also require each contractor seeking certification to provide information documenting the contractor's experience and expertise, number and size of work crews, name and experience of supervisory personnel, the nature and kind of equipment and work for which the contractor is seeking registration, and other similar pertinent details. As part of said registration process, each contractor shall be required to complete a registration form prepared by the City Engineer, and a standardized cost sheet stating on said sheet the cost of each service, labor, and equipment which the contractor is prepared to provide for the City. Only the City's standardized cost sheet will be utilized for determining the amount owed to each contractor. In addition to providing the cost of services which each respective contractor desires to provide, the City's standardized cost sheet shall likewise include a place for the contractor to specify the amount of any premium rate which the contractor would desire to charge. The City is not obligated to pay premium rates, and such rates shall apply to labor only (and not use of equipment), and payment of same shall be exclusively at the City's discretion. Premium rates will be paid only for work performed during hours exceeding eight (8) working hours per day. Payment of the premium rate is justified only in those instances where, in the City Engineer's opinion, weather conditions, emergency conditions, or other similar exigencies make time of the essence in completing the ongoing work. If, in the City Engineer's opinion, the circumstances justifying working additional hours at the premium rate no longer exist, then payment of the premium rate shall cease. Before a contractor will be compensated at the premium rate, the City Engineer must authorize in writing payment of the premium rate for those hours in a day that -4- the Engineer determines the premium rate is applicable. Such authorization must be stated on the invoice which the contractor presents for payment to the City on a daily basis. The City will pay no premium rate unless authorized in advance by the City Engineer. As part of the qualification process, each contractor seeking qualification to perform service for the City must sign an indemnification agreement agreeing to in all things indemnify the City for any liability which may arise as a result of the negligence or other actions of the contractor, including the contractor's subcontractors, agents, employees, or other individuals responsible to the contractor. In addition, the contractor will be required to provide proof of workers compensation insurance and general liability insurance applicable to work performed by the contractor on the project. The City shall be designated as an additional insured under the general liability coverage. The minimum limits for such liability insurance shall be $250,000.00 per individual, $500,000.00 per claim, and $100,000.00 for any property damage. Each proof of insurance must obligate the insurance carrier to provide thirty (30) days written notice to the City in advance of termination of any such coverage. If at any time the insurance coverage required hereunder is terminated or allowed to lapse, the contractor shall automatically be disqualified from further work for the City until such time as appropriate insurance coverage is in effect. To be a contractor qualified to perform day work (other than emergency work or work requiring specialized expertise or equipment not available locally) for the City of Paris, said contractor must maintain its primary business location in Lamar County, Texas. All information required under this section related to the qualifications of contractors shall be updated on an annual basis; provided, however, should any change occur in a contractor's status with regard to the information provided hereunder, the contractor shall be obligated to provide immediate notice to the City of such change. Section 4. Procedural Requirements. The procedural requirements set out herein shall apply to all non-emergency work by the day projects. To the extent these procedures can be applied in the instance of an emergency, they shall likewise apply. The City Engineer shall determine in his judgment whether a pending City project is appropriate for work by the day. In making such a judgment, the City Engineer shall consider the nature and scope of the work, the anticipated cost of the project, the scheduled need for completion of the project, and other factors. -5- As part of the process of determining the nature of the work and estimated cost of the project, the City Engineer shall determine the list of equipment and services associated with performance of the project, and shall select from the City's list of qualified contractors the contractor most qualified for performance of the work who, based on the City's cost sheet, could reasonably be expected to perform the project at the lowest anticipated cost. Having made his preliminary judgment as to the appropriate contractor to perform a prospective project by the day, the City Engineer shall place said project or projects on a City Council agenda for review by the City Council. In presenting said project to the Council, the City Engineer shall accompany his presentation by a brief description of the project, including estimated cost, time of completion, and describe his reasons for selecting the particular contractor for performance of the project. Thereafter, the City Council shall approve, disapprove, or approve with revisions the City Engineer's proposal for performance of the project. Approval of a contractor by City Council shall not obligate the City beyond a single day's work on a project. If the project is approved as provided herein, the City Engineer shall notify the contractor as to the date and time to appear on a project site. Failure of the contractor to appear on a project site on time (unless excused in advance by the City Engineer) shall be reported to the City Council as part of the Engineer's quarterly report as required herein. Provided, however, if the contractor does not appear on a project site within twenty-four (24) hours of the designated time for the project, the contractor shall be notified by the City Engineer that he has been withdrawn from the project and the City Engineer shall select a substitute contractor for consideration by City Council. Section 5. Acquisition of Materials for Work by the Day Projects. Wherever possible, materials needed for work by the day projects shall be acquired by the City in advance of the project through bulk purchases of necessary materials, following the competitive bid process set out in state law. The City's ability to acquire such materials, of course, is dependent upon the City's ability to project far enough in advance the need for such materials, as well as the City's storage capacity for such materials purchased in bulk. If materials are not available by prior bid for the performance of any work by the day project, such materials may be purchased in such quantities as are required to perform a specific work by the day project, provided the total cost of such materials does not exceed twenty-five thousand dollars ($25,000.00). In the instance in which specific materials are purchased for a specific work by the day project, the City Engineer shall solicit informal bids for the purchase of such materials from a minimum of three (3) qualified suppliers, and shall purchase such materials from the supplier with the lowest cost, -6- taking into account the supplier's ability to provide the material on a timely basis to be available at the time that the project is to begin. The City Engineer shall maintain records of each informal bid. Section 6. Payment. Payment for all work performed by the day shall be on the basis of daily invoices timely submitted by the contractor to the Finance Department by 3:00 p.m. on the day such work is performed specifying the time, materials (where appropriate), equipment, and other associated charges. Only invoices prepared in a form acceptable to the Finance Department will be accepted. In the event the contractor fails to tender his invoice in a timely fashion on a particular day to enable the Finance Department to properly issue a check, or when additional work is performed beyond normal working hours, the contractor shall be required to submit such invoicing as soon as possible on the next business day. Failure to timely submit invoices shall be justification for termination of a contractor performing work by the day services. Section Z Disqualification of Contractor. The City Engineer may, on the basis of substantive evidence presented to him, or as he shall otherwise determine, order a contractor to cease work; disqualify a contractor for performance of work by the day; or remove a contractor from the City's list of qualified contractors under the following circumstances: The contractor repeatedly fails to start projects assigned to him on time. 2. The contractor consistently performs substandard work. 3. The contractor fails to perform work as directed by the City Engineer. The contractor engages in actions or inactions which inordinately delay the progress of the project or incur additional costs on the part of the City. 5. The contractor falsifies documents. 6. The contractor fails to submit timely or complete invoices. The contractor fails to maintain current insurance coverage, or is otherwise impaired in his ability to perform his responsibilities. -7- The contractor otherwise fails to comply with the requirements of this policy. In any instance in which the City Engineer determines a contractor should be ordered to cease work, be disqualified from performing work by the day, or be removed from the qualified contractors list, the City Engineer shall notify the contractor of his action, specifying in said written notice his reasons for his actions. If the contractor remedies to the City Engineer's satisfaction those matters which prompted the City Engineer's actions, the City Engineer may, in his discretion, reinstate the contractor. Otherwise, if the contractor fails to remedy such matters to the City Engineer's satisfaction, the contractor may seek appeal of the City Engineer's decision to City Council by filing a written request for appeal with the City Manager within ten (10) days of receipt of the City Engineer's notification of his action. Failure to timely appeal the City Engineer's action shall preclude any further appeal for the contractor. Any contractor removed from the list of qualified contractors shall remain removed from said list for a minimum of one (1) year from the date of notification of his disqualification. Thereafter, the contractor may apply to the City Engineer for reinstatement on the list of qualified contractors and if his request for reinstatement is denied, he may seek appeal of that decision in the same manner as set out herein for the appeal of his original disqualification. Section 8. Reporting to Ci~_ Council. The City Engineer shall, on a quarterly basis, prepare a summary report for presentation as an agenda item on a regular or special City Council meeting. Said report shall summarize all of the work by the day projects performed during the immediately preceding quarter. Such report shall as a minimum include a brief description of the project, the status of the project, the contractor performing the project, the cost incurred to date, both for materials and work, and any other comments or information the City Engineer or the City Council deem appropriate. Section 9. Departures from Polic_v. A departure from this policy is permissible only upon specific approval for said departure by official action of the City Council." Section 3. That all resolutions or portions of resolutions in conflict herewith, including specifically Resolution No. 99-078, shall be and are hereby in all things repealed. Section 4. That the policy adopted herein shall be and become a portion of any procurement manual hereafter adopted by the City of Paris. Section 5. That this resolution shall become effective immediately upon passage, with the exception that the same shall not apply to any project currently under way at the time of its adoption. -8- PASSED AND APPROVED this 8th day of December, 2003. ATTEST: Curtis Fendley, Mayor Mattie Cunningham, City Clerk APPROVED AS TO FORM: Larry W. Schenk, City Attorney -9-