MUNICIPAL CONTRACTS
Sec. 7-1. Authority
Sec. 7-2. Short Title
Sec. 7-3. Scope
Sec. 7-4. Definitions
Sec. 7-5. Formal Requirements
Sec. 7-6. Contract Clauses
Sec. 7-6A. Proposal Submission Requirements
Sec. 7-7. Awarding Form
Sec. 7-8. Waiver
Sec. 7-9. Amendments to Contract
Sec. 7-10. Termination
Sec. 7-11. Contract Awards
Sec. 7-12. Recordkeeping
Sec. 7-13. Massachusetts First Procurement Policy
Sec. 7-14. Severability
Sec. 7-15. Proposals Over $1,000.00 and Under $10,000.00
Sec. 7-16. Bid or Proposal Process
Sec. 7-17 Regulating Bidding on Public Construction Projects
CHAPTER 7 - MUNICIPAL CONTRACT ORDINANCE
Pursuant to the provisions of Chapter 40, Sec. 21 (1) and other applicable sections of the General Laws and in furtherance of Section 3-2 (j) of the Methuen Home Rule Charter, the following ordinance shall govern the establishment of contractual relations with the municipality.
This ordinance shall be known and may be cited as the municipal contract ordinance.
Unless the context otherwise requires, this ordinance shall apply to all transactions in supplies or services provided to the municipality in the exercise of its corporate functions; provided, however, that it shall not apply to any contracts made by the municipality in regard to:
1. Municipal employees' wages and working conditions; or
2. The leasing of equipment to the municipality for a period of three months or less; or
3. The purchase or lease of realty by the municipality; or
4. Any transaction (a) in which the consideration is less than Fifty Thousand Dollars ($50,000) if said contract bid was obtained under the Request for Proposal or bid procedures of General Laws, Chapter 30B, Chapter 149, Section 44A et seq., Chapter 30, Section 39M et seq. of Chapter 7; or (b) where a transaction is less than Twenty-Five Thousand Dollars ($25,000); or
5. The settling of matters in litigation; or
6. Issuance of bonds; or
7. Agreements made under the emergency provisions of Chapter 30B, Section 8, Chapter 30, Section 39M and Chapter 149, Sections 44A to 44H of the General Laws; or
8. Matters which are otherwise provided for by other ordinances of the municipality, statutes or regulations of the Commonwealth, or laws or regulations of the United States.
Provided, however, that said contracts shall comply with General Laws, Chapter 30B, as applicable.
(Amended by Ord. #201, Adopted Sept. 3, 1985; as further amended
by Ord. #566, Adopted Mar. 4, 1996; as further amended by Ord. #666, Eff. March
1st, 1999; as further amended by
Ord. #689, Eff. February 17th, 2000)
Chief Procurement Officer - shall mean the Mayor as provided for under General Laws, Chapter 30B.
Contract - shall mean a promissory agreement between the municipality and another person upon which agreement the municipality seeks to obtain the services or supplies from said person in exchange for which is given monetary consideration. It shall mean the total legal obligation which results from the transaction. As applicable to General Laws, Chapter 30B, said contracts may also be known as "Chapter 30B Contracts".
Services - shall mean the performance of administrative, clerical, ministerial, professional, trade or official duties by any person on behalf of the municipality for which compensation is paid other than by a person appointed pursuant to the Methuen Home Rule Charter, Section 3-2 (b).
Services shall, as applicable, mean that definition as appearing in General Laws, Chapter 30B, Section 2.
Supplies - shall mean equipment, material and supplies as provided for under General Laws, Chapter 30B.
Vendor - shall mean any entity offering services or supplies to the municipality whether such be a sole proprietorship, partnership, company corporation or other like entity.
Section 7-5. Formal Requirements
Except as otherwise provided in the Municipal Code, the Charter, statutes of the Commonwealth or laws of the United States, all contracts for the purchase of goods or services for the municipality shall be awarded in accordance with Section 3-2 (j) of the Methuen Home Rule Charter.
All procurements of services and supplies shall be made by the Chief Procurement Officer or such person(s) as he may designate pursuant to General Laws, Chapter 30B, Section 19.
In addition to any requirements that might be imposed upon such contract by Chapters 30B; 30, Sec. 39M; and 149, Sec. 44A any contract for the purchase of supplies or services as provided in this ordinance shall be in writing and such contract shall contain the clauses as specified in Section 7-6 of this ordinance.
All contracts as specified in Section 7-5 above shall be in writing and shall contain the following:
1. The name or names of the vendors contracting with the municipality and that of the Mayor indicating that he is acting on behalf of said municipality.
2. The supplies or services to be rendered unto the municipality by the vendor. Such supplies or services may be incorporated by reference from the vendor's bid or proposal.
3. The payment terms of the municipality for the performance by the vendor. The document shall further state whether such consideration is being paid in lump sum or in part payments. In any instance, unit pricing is required to be listed.
4. A clause establishing what, if any, liabilities may exist in this agreement relative to negligent or incomplete performance of the contract by the vendor. The clause shall further indicate what liabilities may exist for injuries suffered to real or personal property and/or bodily injuries sustained by either of the parties to the agreement or any other individuals not a party to the contract.
5. A clause indicating that the vendor shall not assign nor transfer this contract or any part thereof, or any sum due or to become due without the written permission of the Mayor of the municipality.
6. A clause indicating that the vendor shall indemnify and save harmless the municipality, its officers and agents from all claims and actions brought against the City or its officers and agents for or on account of any injury or damage received or sustained by any person, structure or property on account of any act or omission of the vendor of such supplies or services.
7. A clause indicating that the City may retain so much of the money due to the vendor under the agreement as shall be considered necessary by the Mayor until all such suits or claims for damages as mentioned above shall have been settled.
8. A clause indicating that the party shall render unto the City an amount as specified in said contract as a guarantee and as a collateral security for the faithful performance of the contract by the vendor, or in lieu thereof, an insurance policy or other instrument.
9. A clause indicating that the vendor shall deliver unto the City all necessary certificates relative to Workmen's Compensation as required by Chapter 152 and other applicable provisions.
10. A clause indicating that the vendor shall secure and maintain an errors and omissions or public liability policy in an amount specified by the Mayor sufficient to protect the municipality from any negligence of vendor.
11. A clause indicating the terms and conditions of any amendment or termination to the contract.
12. A clause indicating that all supplies shall be F.O.B. the municipal building or such other place as the Mayor of the municipality might indicate.
13. A clause indicating the time for performance of such contract both beginning and ending.
14. A clause indicating that all supplies shall pass to the municipality free of all liens and that the vendor in the contract certifies such statement.
15. A clause indicating the specific contract length, with a beginning to ending date. Also included must be a performance schedule.
16. As to contracts exceeding one year in length, a clause must be added subjecting the future years of the contract to proper appropriation for each such fiscal year. The clause must provide for contract termination if no appropriation is made by the City Council for such supply or service.
17. As to renewal, extension or option agreements, the same must indicate that options shall be exercised at the sole discretion of the City; provided further that the same appeared in the original bid or proposal.
18. A default clause specifying liquidated damages and other default remedies.
19. A clause specifying performance bonding of vendor on his obligations.
20. A termination clause and when and under what conditions it may be exercised.
21. A clause prohibiting activities that violate Chapter 268A of the General Laws.
22. A clause listing the total amount of supplies or services (including estimates) under the contract.
23. A tax certificate under General Laws, Chapter 62C, Section 49A.
24. A non-collusion affidavit.
25. A certificate by the Chief Procurement Officer that the award was made in compliance with General Laws, Chapter 30B.
Section 7-6A. Proposal Submission Requirements
Multi-year contracts shall specify the method or price computation used, i.e. either (a) constant pricing; (b) annual adjustments under a specified price indexing; or (c) different prices per year (provided that a formula for calculating the discounted present value of payments is used).
The contract, when presented to the Council, shall be accompanied by an award of contract form containing clauses as may be determined necessary by the Council and the Mayor. The Mayor shall, in addition to submitting the awarding form and the contract thereon, submit the bid specifications used and the submittal response of the successful bidder on said specifications.
In each instance in which a contract was subject to the bid or proposal process under local or State law, the proposers involved shall be identified by name, address and amount of bid or proposal. This summary shall be submitted with every such contract unless the law specifically prohibits the same. Accompanying the summary shall be a statement executed by the Mayor listing the following items: (1) The project scope; (2) A documentation of the procurement process; and (3) In the instance where an RFP is involved, a summarization of the evaluation process.
(Amended by Ord. #691, Eff. January 18th, 2000)
The City Solicitor may waive, modify or amend any or all of the requirements in Section 7-6 of this ordinance if, in his opinion, they are not required, provided that no statutory requirements are violated.
Section 7-9. Amendments to Contract
A contract awarded and executed by the Mayor pursuant to Council vote as per Section 3-2 (j) of the Charter may be amended by the Mayor, acting on behalf of the municipality, provided that said amendment shall not result in an increase in the contract price of more than ten per cent (10%).
A contract awarded pursuant to this ordinance may be terminated by the Mayor, acting on behalf of the municipality, in such manner as is provided in said agreement.
A. Supplies and Services
Contract awards for supplies and services, as applicable, shall be made in
accordance with General Laws, Chapter 30B. The procedures, as provided for in
the "Municipal, County, District and Local Authority Procurement of Supplies,
Services and Real Property", prepared by the Office of the Inspector General,
Publication #16231-125- 500-3-20-90, as may hereinafter be amended, shall be,
as applicable, complied with in the bid, proposal and award of all municipal
contracts.
B. Public Works and Public Buildings
Contract awards for contracts subject to General Laws, Chapter 30, Section 39M, and/or General Laws, Chapter 149, Sections 44A, et seq., shall contain the GENERAL CONDITIONS of the "Standard General Conditions of the Construction Contract" prepared by Engineers Joint Contract Documents Committee, No. 1910-8 (1983 Edition), as may be modified by particular specific conditions. All such contracts shall be principally governed, unless otherwise provided for, by and subject to the "BLUE BOOK" of the Commonwealth of Massachusetts Department of Public Works Standard Specifications for Highways and Bridges (1988 Edition), as may be hereinafter updated and supplemented.
All contract documents and supporting materials must be maintained for a period
of six years from the date of final payment under the contract. All of these
records must be available for public inspection, except that proposals (RFPs)
made under General Laws, Chapter 30B, remain confidential until the completion
of the evaluations (General Laws, Chapter 30B, Section 3).
Section 7-13. Massachusetts First Procurement Policy
It shall be the policy of the City of Methuen and its demand to the Chief Executive Officer that, in procuring equipment, materials and supplies, the Mayor, and his officers and agents, shall seek proposals and/or bids, including telephone bids, from Massachusetts businesses solely. This policy shall be adhered to unless it is not legally possible to comply with the same.
In any instance where equipment, materials or supplies shall be secured from other than a Massachusetts business, then in that instance, the Mayor, in submitting the Intent to Award, shall submit an explanation, in detail, as why the Massachusetts First Policy of Procurement could not be complied with.
For the purposes of this ordinance, the term "Massachusetts business" shall mean a facility either corporately or by local office doing business within the Commonwealth of Massachusetts and preferably registered with the Secretary of State's Office or a local city or City Clerk's office as a Massachusetts business.
If any provision of this ordinance is held invalid, the other provisions of
such shall not be affected thereby. If the application of the ordinance or any
of its provisions to any person or circumstance is held invalid, the application
of this ordinance and its provisions to other persons and circumstances shall
not be affected thereby.
Section 7-15. Proposals Under General Laws, Chapter 30B,
Section 4
Whenever the City of Methuen shall seek proposals or bids on equipment, materials, supplies or services covered under General Laws, Chapter 30B, estimated to be over $1,000.00 and under $10,000.00, the following procedure shall apply:
The Chief Procurement Officer shall not use telephone quotations unless such quotation is followed up with a written proposal submitted by a proposer or bidder. Such written submission shall outline the goods or services to be delivered, the charge and any applicable warranty, and be signed by a duly authorized agent of the bidder.
(Ord. #750, Eff. April 16, 2003)
Section 7-16. Bid or Proposal Process
In the award of the below described contracts, a procedure is hereby ordained to be followed which shall be similar in nature to an award under General Laws, Chapter 30B, known as the Uniform Procurement Act, be it by an invitation for bid or a request for proposal process.
No contract shall be awarded for the following services or supplies unless the process is followed. The contracts covered by this ordinance shall be:
- a contract for the advertising of required notices;
- a contract for the procurement of insurance or surety bonds;- a contract for physicians, dentists, and other health care individuals or persons, including nurses, nurses' assistants, medical and laboratory technicians, health care providers, including diagnosticians, social workers, psychiatric workers and veterinarians;
- a contract for snow plowing;
- a contract which is funded by the proceeds derived from a gift to an agency of the City or a Trustee established for the benefit of the inhabitants of the City of Methuen;
- a contract for the towing and storage of motor vehicles;
- a contract to provide job-related training, educational or career developmental services to the employees of the City;
- a contract for the collection of delinquent taxes or for the services of a Deputy Tax Collector;
- a contract for the collection, transportation, receipt processing or disposal of solid waste, recyclable and compostable materials.
- an Architect engineering contract subject to Chapter 7, Section 38A-1/2
- a contract for annual Municipal Audit.
(Ord. #462, Eff. February 19th, 1993; as amended by Ord. #470, Eff. May 20th, 1993; as amended by Ord. #471, Eff. June 2nd, 1993; as further amended by Ord. #494, Eff. November 30th, 1993; as further amended by Ord. #517, Eff. August 31st, 1994; as further amended by Ord. #666, Eff. March 1st, 1999).
Section 7-17 Regulating Bidding on Public Construction Projects
A. All bidders and all subcontractors, including subcontractors that are not subject to M.G.L. c.149, §44F, under the bidder for projects subject to M.G.L. c.149, §44A(2) and M.G.L. c.30, §39M, shall, as a condition for bidding or for an award of a subcontract on non-filed sub-bid work, verify under oath and in writing at the time of bidding that they comply with the following conditions for bidding or subcontracting and, for the duration of the project, shall comply with the following obligations:
1. The bidder and all subcontractors under the bidder shall comply with the City of Methuen Employment Plan as it currently exists and as it may, from time to time, be amended.
2. The bidder and all subcontractors under the bidder must comply with the obligations established under M.G.L. c.149 to pay the appropriate lawful prevailing wage rates to their employees.
3. The bidder and all subcontractors under the bidder must at the time of bidding maintain or participate in a bona fide apprentice training program as defined by M.G.L. c.23, §§11H and 11I for each apprenticeable trade or occupation represented in their workforce that is approved by the Division of Apprentice Training of the Department of Labor and Workforce Development and must register all apprentices with the Division and abide by the apprentice to journeyman ratio for each trade prescribed therein in the performance of any work on the project.
4. The bidder and all subcontractors under the bidder must at the time of bidding furnish at their expense, hospitalization and medical benefits and/or coverage for all their mechanics and apprentices, teamsters, chauffeurs and laborers (as those employee classifications are used in M.G.L. c.149, §26) at least comparable in value and coverage to the hospitalization and medical benefits provided by the health and welfare plans in the applicable craft recognized by M.G.L. c.149, §26 in establishing minimum wage rates.
5. The bidder and all subcontractors under the bidder must maintain appropriate industrial accident insurance coverage for all the employees on the project in accordance with M.G.L. c.152.
6. The bidder and all subcontractors under the bidder must properly classify employees as employees rather than independent contractors and treat them accordingly for purposes of workers' compensation insurance coverage, unemployment taxes, social security taxes and income tax withholding. (see: M.G.L. c.149, §148B on employee classification)
B. A bid submitted by any general bidder or by any subcontractor under the general bidder 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. c.149, §44F shall be awarded to a subcontractor that does not comply with the foregoing conditions.
C. All bidders and subcontractors under the bidder who are awarded or who otherwise obtain contracts on the projects subject to M.G.L. c.149, §44A(2) or c.30, §39M shall comply with any one of the obligations numbered 1 through 6 as set forth in paragraph A above for the entire duration of their work on the project, and an officer of each bidder or subcontractor under the bidder shall certify under oath and in writing on a weekly basis that they are in compliance with such obligations.
D. Any bidder or subcontractor under the bidder who fails to comply with any one of obligations 1 though 6 as set forth in Paragraph A above for any period of time shall be, at the sole discretion of the City of Methuen, subject to one or more 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 Methuen in the amount of 5% of the dollar value of the contract.
E. In addition to the sanctions outlined in Paragraph D above, a 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 of Methuen 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.
F. In any provision of this ordinance, of 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.
(Ord. #730, eff. January 16, 2002)
CHAPTER 7A - OTHER CONTRACTS
Sec. 7A-1. Contracts other than Section 7-1 contracts
CHAPTER 7A - OTHER CONTRACTS
Section 7-A. Contracts Other than Section 7-1 Contracts
Authority. Whereas, pursuant to the Methuen Home Rule Charter, Section 3-2 (j), all contracts within the jurisdiction of the Mayor require Council approval; and
Whereas, Chapter 40, Section 21 (1) provides that the City Council may enact ordinances regulating the prudential affairs of the municipality; and
Whereas, the term "contract" in the aforesaid Section 3-2 (j) has not been defined;
Now therefore be it ordained that the term "contract", as specified in the aforesaid 3-2 (j), shall mean and be defined as "any promissory agreement between the municipality and another person, firm, company, partnership or corporation by which the municipality seeks to obtain the services or goods from said entity in exchange for which is given monetary consideration", provided that such term shall not mean any agreement made by the municipality in regard to:
1. The leasing of equipment to the municipality for a period of one month or less, except the leasing of equipment which might occur for a period of more than one month during the course of a year computed from the first day of the original lease; provided further, that the Mayor shall declare an emergency on such and notify the Council within fourteen days of such declaration;
or
2. Any transaction (a) in which the consideration is less than Fifty Thousand Dollars ($50,000) if said contract bid was obtained under the Request for Proposal or bid procedures of General Laws, Chapter 30B, Chapter 149, Section 44A et seq., Chapter 30, Section 39M et seq. of Chapter 7; or (b) where a transaction is less than Twenty-Five Thousand Dollars ($25,000); or3. Agreements made under the emergency provisions of Chapter 40, Section 4G, Chapter 30, Section 39M, and Chapter 149, Sections 44A to H of the General Laws.
(Amended by Ord. #201, Adopted Sept. 3, 1985; as further amended by Ord. #462, Eff. Feb. 19, 1993; and as further amended by Ord. #566, Eff. April 3, 1996)
CHAPTER 7B - PURCHASE AGREEMENTS
Sec. 7B Purchase Agreements
CHAPTER 7B - PURCHASE AGREEMENTS
Section 7-B. Purchase Agreements
Authority. Whereas, Chapter 40, Section 21 (1) provides that the City Council may enact ordinances regulating the prudential affairs of the municipality; and
Whereas, Section 3-2 (K) of the Methuen Home Rule Charter makes the Mayor responsible for the purchasing of all supplies, materials and equipment for all departments and activities of the City, except school materials and supplies as provided therein;
Now therefore be it ordained, that the following procedure shall be established for the acquisition of all the aforesaid materials, equipment and supplies not hereintofore provided for in this ordinance:
1. No agreement for the purchase or lease of equipment, materials or supplies, the total sum of which amounts to One Hundred Dollars ($100.00) or more shall be consummated without the prior approval of the Mayor.
2. The Mayor is hereby directed to develop any policy or policies he deems necessary regarding agreements, the value of which amounts to less than One Hundred Dollars ($100.00).
CHAPTER 7C - ACCOUNTANT'S CERTIFICATE AS TO AVAILABILITY OF FUNDS
Sec. 7C Accountant's Certificate as to Availability of Funds
CHAPTER 7C - ACCOUNTANT'S CERTIFICATE AS TO AVAILABILITY OF FUNDS
Section 7-C. Accountant's Certificate as to Availability of Funds
No contract for the purchase by the municipality of goods or services as defined in Section 7-4, the scope of which is provided for in Section 7-3, shall be deemed to have been made until the City Accountant has certified thereon that an appropriation in the amount of such contract is available therefor and that an officer or agent of the City has been authorized to execute said contract and approve all requisitions and change orders.
No amendment for a change in or addition to the scope of services or materials or equipment to be performed under a contract subject to this section, in any form whatsoever, unless it is an order which the contracting party is willing to perform without any increase in the contract price, shall be deemed to have been given until the Accountant has certified thereon that an appropriation in the amount of such order is available therefor; but such certificate shall not be construed as an admission by the City of its liability to pay for such work. The certificate of the Accountant that an appropriation in the amount of such contract or order is available shall bar any defense by the City on the grounds of insufficient appropriation; and any law barring payment in excess of appropriation shall not apply to amounts covered by any certificate under this section.
(As amended by Ord. #247, Approved Dec. 15, 1986, Eff. Jan. 14, 1986)