Finance Committee

PRESIDENT Elizabeth J. Kazinskas CITY OF GARDNER COUNCILLORS AT LARGE MASSACHUSETTS 01440-2630 James S. Boone Craig R. Cormier OFFICE OF THE Ronald F. Cormier CITY COUNCIL Judy A. Mack George C. Tyros WARD 1 COUNCILLOR James M. Walsh, Esq. WARD 2 COUNCILLOR Dana M. Heath WARD 3 COUNCILLOR Paul Tassone WARD 4 COUNCILLOR September 28, 2023 Karen G. Hardern WARD u5 COUNCILLOR FINANCE COMMITTEE MEETING NOTICE Alek Dernalowicz, Esq. Date: Monday, October 2, 2023 Time: 7:15 P.M. Location: City Council Chambers, Room 219, City Hall AGENDA CALL TO ORDER ANNOUNCEMENT OF OPEN MEETING RECORDINGS Any person may make a video or audio recording of an open session of a meeting, or may transmit the meeting through any medium, subject to reasonable requirements of the chair as to the number, placement and operation of equipment used so as not to interfere with the conduct of the meeting. Any person intending to make such recording shall notify the Chair forthwith. All Documents and exhibits used or referenced at the meeting must be submitted in duplicate to the City Clerk, as they become part of the Meeting Minutes. I. First Time on the Agenda: 11066 – A Notification from the Mayor Regarding Certified Free Cash and Retained Earnings. 11067 – An Order Appropriating $128,978.00 from Free Cash to Stabilization. 11068 – An Order Appropriating $25,796.00 from Free Cash to Other Post Employment Benefits Liability Trust Fund. 11069 – An Order Appropriating $257,956.00 from Free Cash to Department of Public Works Department – Road Resurfacing Expense Account. 11070 – An Order Appropriating $75,000.00 from Free Cash to Landfill Closure Expenditures. 1  11071 – An Order Appropriating $200,000.00 from Free Cash to Vehicle Stabilization. 11072 – An Order Appropriating $90,072.04 from Free Cash to Mayor Unclassified Department for Opioid Professional Services Expenses. II. Referred to Finance: 11061 – An Ordinance to Amend the Code of the City of Gardner by Adding a New Chapter to be Entitled, Chapter 504: Wage Theft Protection, Which Shall Provide for Protections for Workers and Employees of Contractors Working on City Projects. (In the City Council and Referred to Finance Committee 9/18/2023) ADJOURNMENT NOTICE: The listing of Agenda items are those reasonably anticipated by the Chairman which may be discussed at the meeting. Not all items listed may in fact be discussed and other items not listed may also be brought up for discussion to the extent permitted by law. CITY COUNCIL OF GARDNER Elizabeth J. Kazinskas ELIZABETH J. KAZINSKAS Chair, Finance Committee 2 11066 11066 11066 11066 11066 11066 11066 11066 11066 11066 11066 11066 11066 11067 11067 11068 11068 11069 11069 11070 11070 11070 11071 11071 11072 11072  11061 AN ORDINANCE TO AMEND THE CODE OF THE CITY OF GARDNER BY ADDING A NEW CHAPTER TO BE ENTITLED, CHAPTER 504: WAGE THEFT PROTECTION, WHICH SHALL PROVIDE FOR PROTECTIONS FOR WORKERS AND EMPLOYEES OF CONTRACTORS WORKING ON CITY PROJECTS. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GARDNER AS FOLLOWS: SECTION 1: That a new Chapter 504, entitled “Wage Theft Protection,” be added to the City Code as follows: Section 1. DEFINITIONS A. "Gardner Resident" means any person for whom the principal place of residence is within the City of Gardner during the entirety of time the person works on a Public Construction Project within the City of Gardner. Proof of such residence may include, but is not limited to, the following: a valid Massachusetts Driver's License or Massachusetts Identification Card, utility bills, proof of voter registration, or such other proof acceptable to the City of Gardner. B. “Tax Relief” means any issuance of tax relief provided under a Tax Increment Financing Agreement, a Housing Development Exemption Agreement or any other provision of law or regulation authorizing the issuance of tax relief, or any form of municipality-funded grant (regardless of whether the source is tax revenues or otherwise) provided under the Community Preservation Act or any other provision of law or regulation authorizing the issuance of municipality-funded grants. C. “Tax Relief Agreement” means any Agreement or other form of document governing the terms and conditions of the issuance of Tax Relief by the City of Gardner. Section 2. MUNICIPAL CONSTRUCTION CONTRACTS Whenever the City of Gardner is procuring construction services subject to the provisions of M.G.L. Chapter 149, Chapter 149A or Chapter 30, §39M, the following shall be incorporated into the procurement documents and made part of the specifications and contract. Any person, company or corporation shall acknowledge, in writing, receipt of said requirements with their bid or proposal. A. All bidders or proposers, contractors, and subcontractors and trade contractors, including subcontractors of any tier that are not subject to M.G.L. Chapter 149, §44F, (the “Contractor”) under the bidder, shall as a condition for bidding, contracting, or subcontracting verify under oath and in writing at the time of bidding or submittal in response to an RFP or in any event prior to entering into a contract or subcontract at any tier, that they comply with the following conditions for bidding, 1  11061 contracting or subcontracting and, for the duration of the project, shall comply with the following requirements and obligations: 1. The Contractor shall not have been debarred or suspended from performing construction work by any federal, state or local government agency or authority in the past five years; 2. The Contractor shall not have been found within the past five years by a court or governmental agency in violation of any law relating to providing workers compensation insurance coverage, misclassification of employees as independent contractors, payment of employer payroll taxes, employee income tax withholding, earned sick time, wage and hour laws, prompt payment laws, or prevailing wage laws; 3. The Contractor shall maintain appropriate industrial accident insurance sufficient to provide coverage for all the employees on the project in accordance with M.G.L. Chapter 152 and provide documentary proof of such coverage included with the contractor’s submitted bid to the Purchasing Department to be maintained as a public record; 4. The Contractor shall properly classify employees as employees rather than independent contractors and treat them accordingly for purposes of prevailing wages and overtime, workers’ compensation insurance coverage, unemployment taxes, social security taxes and state and federal income tax withholding. (M.G.L. Chapter 149, §148B on employee classification). 5. The Contractor shall comply with M.G.L. Chapter 151, §1A and M.G.L. Chapter 149, § 148 with respect to the payment of wages; 6. The Contractor must make arrangements to ensure that each employee of every contractor and subcontractor of any tier entering or leaving the project individually completes the appropriate entries in a daily sign-in/out log. The sign in/out log shall include: the location of the project; current date; printed employee name; signed employee name; name of employee’s employer and the time of each entry or exiting. The log shall contain a prominent notice that employees are entitled under state law to receive the prevailing wage rate for their work on the project. Such sign-in/out logs shall be provided to the City of Gardner on a weekly basis with the certified payrolls and shall be a public record. 7. The contractor, prior to bidding or, if not subject to bidding requirements, prior to performing any work on the project, shall sign under oath and provide to the City of Gardner a certification that they are not debarred or otherwise prevented from bidding for or performing work on a public project in the Commonwealth of Massachusetts or in the City of Gardner. 2  11061 8. The contractor must be in compliance with the health and hospitalization requirements of the Massachusetts Health Care Reform law established by Chapter 58 of the Acts of 2006, as amended, and regulations promulgated under that statute by the Commonwealth Health Insurance Connector Authority; and 9. The Contractor must submit weekly to City Director of Purchasing certified payrolls for all employees. A certified payroll format will be provided by the City that includes the employees full name, address, identifying number, and gender. Each contractor shall provide a copy of the OSHA 10 card for every employee attached to the first certified payroll they submit on which the employee appears. B. A proposal or bid submitted by any general bidder or by any trade contractor or subcontractor, at any tier, under the general bidder or proposer that does not comply with any of the foregoing conditions for bidding shall be rejected, and no subcontract for work outside the scope of M.G.L. Chapter 149, §44F shall be awarded to a subcontractor of any tier that does not comply with the forgoing conditions. C. All bidders or proposers and all trade contractors and subcontractors under the bidder or proposer who are awarded or who otherwise obtain contracts on projects subject to M.G.L. c.149, §44A(2), c 149A, or c.30, §39M shall comply with each of the obligations set forth in paragraph A above for the entire duration of their work on the project. An officer of each contractor or subcontractor shall certify under oath and in writing in connection with each requisition or request for payment that it is in compliance with such obligations. D. Any proposer, bidder, trade contractor or subcontractor under the bidder or proposer that fails to comply with any one of obligations set forth in Paragraph A above or any other requirements in bid or contract documents for any period of time shall be, at the sole discretion of the City of Gardner, subject to one or more of the following sanctions: (1) cessation of work on the project until compliance is obtained; (2) withholding of payment due under any contract or subcontract until compliance is obtained; (3) permanent removal from any further work on the project; (4) liquidated damages payable to the City of Gardner in the amount of 5% of the dollar value of the contract. E. In addition to the sanctions outlined in Paragraph D above, a proposer, general bidder or contractor shall be equally liable for the violations of its subcontractor with the exception of violations arising from work performed pursuant to subcontracts that are subject to M.G.L. c.149, §44F. Any contractor or subcontractor that has been determined by the City/Town or by any court or agency to have violated any of the obligations set forth in Paragraphs A and C above shall be barred from performing any work on any future projects for six months for a first violation, three years for a second violation and permanently for a third violation. Section 3. TAX RELIEF AGREEMENTS 3  11061 Minimum Mandatory Conditions. In addition to any other conditions that may be required in connection with the issuance of any Tax Relief issued or granted by the City of Gardner, each Tax Relief Agreement entered into between the City of Gardner and the recipient of such Tax Relief shall be subject to and shall include the following set of mandatory conditions: A. It shall be a special and material condition of this Agreement that any construction manager, general contractor or other lead or prime contractor, or any entity functioning in any such capacity, and any other contractor or subcontractor of any tier or other person that is engaged to perform the construction work during the term of this Agreement on the property that is the subject of this Agreement (hereinafter, collectively and individually, the “Contractor”) shall comply with the following qualifications and conditions at all times during their performance of work on the property: (1) The Contractor has not been debarred or suspended from performing construction work by any federal, state or local government agency or authority in the past five years; (2) The Contractor has not been found within the past five years by a court or governmental agency in violation of any law relating to providing workers compensation insurance coverage, misclassification of employees as independent contractors, payment of employer payroll taxes, employee income tax withholding, earned sick time, wage and hour laws, prompt payment laws, or prevailing wage laws; (3) The Contractor must maintain appropriate industrial accident insurance sufficient to provide coverage for all the employees on the project in accordance with G.L. c.152 and provide documentary proof of such coverage as part of the application process, or prior to commencing any work to the City Purchasing Department to be maintained as a public record; (4) The Contractor must properly classify employees as employees rather than independent contractors and treat them accordingly for purposes of minimum wages and overtime, workers’ compensation insurance coverage, unemployment taxes, social security taxes and state and federal income tax withholding. (G.L. c.149, §148B on employee classification); (5) The Contractor must comply with G.L. c. 151, §1A and G.L. c. 149, § 148 with respect to the payment of wages; (6) The Contractor must be in compliance with the health and hospitalization requirements of the Massachusetts Health Care Reform law established by Chapter 58 of the Acts of 2006, as amended, and regulations promulgated under that statute by the Commonwealth Health Insurance Connector Authority; and 4  11061 (7) The applicant shall submit to the City of Gardner as part of the applicant’s request for Tax Relief a list of all the expected contractors to work on the project. The list shall include the name of the primary contact, the Contractor’s address and either a phone number or email address. The applicant will provide a final all- inclusive list to the City of Gardner within 30 days of the conclusion of the project. (8) The applicant and/or the Contractor must submit monthly to the City Director of Purchasing certified payrolls for all contractors. A certified payroll format will be provided by the City of Gardner that includes the employees full name, address, identifying number, and gender. Each contractor shall provide a copy of the OSHA 10 card for every employee attached to the first certified payroll they submit on which the employee appears. (9) The Contractor must make arrangements to ensure that each employee of every contractor and subcontractor of any tier entering or leaving the project individually completes the appropriate entries in a daily sign-in/out log. The sign in/out log shall include: the location of the project; current date; printed employee name; signed employee name; name of employee’s employer and the time of each entry or exiting. Such sign-in/out logs shall be provided to the City/Town on a weekly basis with the certified payrolls and shall be a public record. B. If any person or entity subject to the foregoing qualifications and conditions fails to comply with any of them with respect to work on the property, the parties agree that such an event materially frustrates the public purpose for which the Tax Relief Agreement (and any certification or other form of approval that may have been granted by the state) was intended to advance. In such an event, the recipient of the Tax Relief shall be subject to the following penalty schedule: a. First Offense- the recipient shall pay the City of Gardner an amount equal to twenty-five (25%) of the total Tax Relief granted. b. Second Offense- the recipient shall pay the City of Gardner an amount equal to fifty (50%) of the total Tax Relief granted. c. Third Offense- Tax Relief granted by this Agreement shall be terminated upon written notice to the property owner, and the property owner shall pay to the City of Gardner an amount equal to the total value of any tax relief or grant that was received prior to the termination of the Tax Relief Agreement. Where required, the City of Gardner shall petition the appropriate state agency or body for revocation of the certification or approval and, upon such revocation, the tax relief provided by this Agreement shall be terminated and the property owner shall pay to the City an amount equal to the value of the tax relief or grant that was received prior to the termination of the Tax Relief Agreement. The above penalties are the only penalties that may be imposed in the event of a violation of the foregoing qualifications and conditions. However, the City Council 5  11061 of the City of Gardner may, at its own discretion, impose a more severe penalty for a first or second offense from among those listed above. C. In the event the owner of the property or any other person challenges the termination of the tax relief provided by this Agreement and/or the revocation by the state of any certification or approval, the owner shall set aside in an escrow account an amount equal to the full amount of the tax savings that previously would have accrued under this Agreement while any such challenge remains pending. The owner of the property shall have a continuing obligation to contribute to the escrow account amounts equal to any additional tax savings that accrue under this Agreement while its challenge remains pending. The owner shall promptly provide to the City of Gardner with documentation of its compliance with this obligation. The conditions of the escrow account shall provide that, in the event the owner or such other person is unsuccessful in its challenge, the funds in the account shall be paid to the City of Gardner. The owner’s obligations under this subsection shall be judicially enforceable. It is the intent of the parties that the residents of this municipality are third party beneficiaries of this Agreement, and that it may be enforced in a civil proceeding brought by not less than 10 taxable inhabitants. Section 4. BUILDING PERMITS Minimum Mandatory Conditions. In addition to any other conditions that may be required in connection with the issuance of building permits under the provisions of the Code of the City of Gardner, each building permit issued in connection with the construction, reconstruction, installation, demolition, maintenance or repair of any commercial building estimated to cost not less than $1,000,000 or in connection with a residential building with one-hundred-twenty-five (125) or more units shall be subject to and shall include the following set of mandatory permit conditions: A. It shall be a material condition of this Permit that any construction manager, general contractor or other lead or prime contractor, or any entity functioning in any such capacity, and any other contractor or subcontractor of any tier or other person or entity that is engaged to perform the construction work on the property that is the subject of this Permit (hereinafter, collectively and individually, the “Contractor”) shall comply with the following qualifications and conditions at all times during their performance of work on the project: (1) The Contractor has not been debarred or suspended from performing construction work by any federal, state or local government agency or authority in the past five years; (2) The Contractor has not been found within the past five years by a court or governmental agency in violation of any law relating to providing workers compensation insurance coverage, misclassification of employees as independent 6  11061 contractors, payment of employer payroll taxes, employee income tax withholding, wage and hour laws, prompt payment laws, or prevailing wage laws; (3) The Contractor must maintain appropriate industrial accident insurance sufficient to provide coverage for all the employees on the project in accordance with G.L. c.152 and provide documentary proof of such coverage to the Building Commissioner to be maintained as a public record; (4) The Contractor must properly classify employees as employees rather than independent contractors and treat them accordingly for purposes of minimum wages and overtime, workers’ compensation insurance coverage, unemployment taxes, social security taxes and state and federal income tax withholding. (G.L. c.149, §148B on employee classification); (5) The Contractor must comply with G.L. c. 151, §1A and G.L. c. 149, § 148 with respect to the payment of wages; and (6) The Contractor must be in compliance with the health and hospitalization requirements of the Massachusetts Health Care Reform law established by Chapter 58 of the Acts of 2006, as amended, and regulations promulgated under that statute by the Commonwealth Health Insurance Connector Authority. (7) The Contractor must make arrangements to ensure that each employee of every contractor and subcontractor of any tier entering or leaving the project individually completes the appropriate entries in a daily sign-in/out log. The sign in/out log shall include: the location of the project; current date; printed employee name; signed employee name; name of employee’s employer and the time of each entry or exiting. Such sign-in/out logs shall be provided to the City/Town on a weekly basis with the certified payrolls and shall be a public record. If any person or entity that is subject to the foregoing fails to comply with any of the qualifications and conditions with respect to work on the project, this Permit shall be deemed temporarily suspended and all construction work on the entire project shall cease immediately upon issuance of a stop work order by the Building Commissioner or his/her designee until further notice by him/her. Remedies. In the event the permit is granted, the applicant for the permit shall be responsible for ensuring that all contractors performing construction work on the property comply with the Minimum Mandatory Conditions required by this Section for the duration of work on the project. If any person or entity that is subject to those Minimum Mandatory Conditions fails to comply with any of the qualifications and conditions with respect to work on the project, and in addition to any other penalties or consequences provided by law, the Building Commissioner or his/her designee shall issue a stop work order with respect to all construction work on the entire project until the violation is remedied. Once the Building Commissioner or his/her designee 7  11061 determines that the violation has been remedied, he/she shall withdraw the stop work order and construction on the project may proceed. Appeals. Any person aggrieved by a stop work order issued by the Building Commissioner or his/her designee shall have the appeal rights set forth in by the Code of the City of Gardner or any applicable state law. Section 5. SUCCESSORS IN INTEREST The requirements of this Ordinance, including any sanctions or limitations imposed, that are applicable to any employer shall also be applicable to, and effective against, any successor employer that (1) has at least one of the same principals or officers as the predecessor employer and (2) is engaged in the same or equivalent trade or activity as the predecessor employer. Section 6. SEPARABILITY If any provision of this Ordinance, or the application of such provision to any person or circumstances, shall be enjoined or held to be invalid, the remaining provisions of this Ordinance, or the application of such provisions to persons or circumstances, other than that which is enjoined or held invalid shall be not affected thereby. SECTION 2: This ordinance shall take effect upon passage and publication as required by law. 8