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Ordinance No. 11,268ORDINANCE NO. 11,268 AN ORDINANCE OF THE CITY OF BAYTOWN, TEXAS, AMENDING CHAPTER 2 "ADMINISTRATION," ARTICLE V "FINANCE" OF THE CODE OF ORDINANCES OF THE CITY OF BAYTOWN, TEXAS, BY ADDING A NEW DIVISION TO BE NUMBERED AND ENTITLED DIVISION 4 "CITY CONTRACTS; INDEBTEDNESS TO CITY" TO PROHIBIT CONTRACTS BEING LET TO PERSONS INDEBTED TO THE CITY; PROVIDING A REPEALING CLAUSE; CONTAINING A SAVINGS CLAUSE; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF. ****************************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That Chapter 2 "Administration," Article V "Finance" of the Code of Ordinances, City of Baytown, Texas, is hereby amended by adding a new division to be numbered and entitled Division 4 "City Contracts; Indebtedness to City," which division reads as follows: CHAPTER 2. ADMINISTRATION ARTICLE V. FINANCE Division 4. CITY CONTRACTS; INDEBTEDNESS TO CITY Sec. 2 -661. Policy. (a) Except as provided in section 2 -665 of this Code or subsection (b) of this section, no contract shall be let, nor any other business transaction entered into, by the city with any contracting entity that is indebted to the city or whose owner is indebted to the city, if the contract or transaction (i) requires the expenditure of funds equal to or exceeding the amount that requires the taking of competitive bids under state law, as amended from time to time, or (ii) grants a right, privilege, lease or franchise valued, in any one year period, in an amount equal to or in excess of the amount prescribed in (i) of this subsection, if the proposed contracting entity or any owner thereof is then indebted to the city, as set forth in this division. No city contract shall be amended or extended if the contracting entity or any owner thereof has become indebted to the city since the inception of the contract unless such indebtedness is fully paid prior to any council action to amend or extend such contract. (b) Exception. Subsection (a) of this section shall not apply to any contract if prohibited by the provisions of V.T.C.A., Local Government Code ch. 252, or by any other applicable state or federal law, rule or regulation restricting the power of the city to promulgate the policy set forth herein; provided however, that when a contract or other business matter that requires council action is placed before city council, regardless of the applicability of subsection (a), the city council shall be notified in writing whether a proposed contracting entity or owner thereof, if applicable, is indebted to the city. Sec. 2 -662. Definitions. The following terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: ,Affidavit shall mean a sworn statement containing the full name of the proposed contracting entity. including the assumed name of a person or sole proprietor doing business under such assumed name, and the business and residence addresses of all persons who oNvn five percent or more of a contractincy entity. where applicable. or, where a contracting entity is a non- profit corporation, the full names and the business and residence addresses of all officers of the non -profit corporation. Contracting entity, shall mean a person, whether acting as an individual or operating as a sole proprietorship. corporation. non- profit corporation. partnership. joint venture, limited liability company, or other entity. regardless of the form of its organization. that seeks to enter into a contract that requires approval by the city council. but shall exclude governmental entities. Director shall mean the director of finance. Debt shall mean any delinquent sum of money in an amount greater than $100.00 levied. imposed or assessed against any contracting entity. or owner thereof by the city. including those for ad valorem taxes on real or personal property located within the boundaries of the city. Debtor shall mean a contracting entity or owner thereof if the contracting entity is other than a person doing business as an individual or sole proprietorship, that owes a debt to the city. as shown by city records. Delinquent shall mean past due. unpaid and no longer subject to challenge. protest or appeal, as those processes are described in the Texas Tax Code. Indebted shall mean owing a debt to the city without regard to ability or inability to pay the same, where the amount is delinquent. provided that a debtor Nvho remains current on all obligations of an installment agreement executed by the debtor regarding a debt shall not be deemed indebted for purposes of this division. Initiating director shall mean the director of the department responsible for a matter that is intended to, or does. result in the making of a contract or entry into another business transaction between a contracting entity and the city. Owner shall mean. with respect to a contracting entity: an individual contractor in his or her own name or as a sole proprietorship, and as to a contracting entity other than an individual or person operating as a sole proprietorship_ any person who owns five percent or more thereof, or, in the case of a non- profit corporation. any officer of the non -profit corporation. Sec. 2 -663. Determination of indebtedness; procedure. (a) All proposals or other information submitted to the city in connection with any proposed contract, transaction, project or matter shall include an affidavit. Contracts typically awarded without the submission of a proposal. including but not limited to, contracts for engineering and architectural services. shall be subject to this section and shall not be finally approved by the city council until a determination as to any indebtedness of the contracting entity or any owner thereof to the city has been made as provided in this section. (b) Any failure to submit the affidavit(s) required by subsection (a) shall constitute grounds for rejection or non- consideration of such proposal or other information. It shall be the duty of the initiating director to ascertain that the affidavit has been properly prepared and submitted. (c) Upon the initiating director's determination of the contracting entity to be recommended for the award of a contract, copies of affidavit(s) submitted by such entity shall be promptly forwarded by the initiating director to the director. (d) Upon receipt of an affidavit, the director shall immediately investigate whether the recommended contracting entity or any owner thereof is indebted to the city and. if so. determine insofar as possible with the information provided, whether such indebtedness is then under active protest. challenge or appeal by such debtor. (e) The director shall certify' in writing to each initiating director whether, based on the best infonnation available, a recommended contracting entity is indebted to the city and, if so. the amount of such debt. The initiating director shall immediately forward a copy of the director's certificate to each affected contracting entity. together with the telephone number of the delinquent tax collection attorney. or a contact in the director's office. by which a debtor may confirm the information in such certificate as well as the address to which an appeal is to be filed under section 2 -664 of this code. The director's certificate will be deemed to have been received by the contracting entity within three business days after its deposit in the U.S. mail by the initiating director. (f) Should the director fail to produce the certificate required by subsection (e) within ten business days from receipt of an affidavit. the affected contracting entity and all owners thereof will be deemed not to be indebted to the city for purposes of this division only. (g) If the debt shown in the director's certificate is paid. the receipt or other written proof of payment shall be delivered to the director who shall immediately issue a new certificate to the initiating director confirming such payment. (h) When an award or other transaction is ready to be submitted to the city council for action. the initiating director shall forward to the city clerk the director's certificate or the certificate of the three - member panel sustaining a debtor's protest, challenge or appeal, as applicable. along with all related affidavit(s). Sec. 2 -664. Appeal. (a) Any debtor shall have the right to appeal the director's certificate wider section 2- 663(e) of this Code by filing a written statement requesting a hearing. The debtor's written statement must set forth fully the basis for any appeal and be accompanied by all documentation relied upon in support thereof. Delivery of such request for hearing may be effected by personal delivery to the office of the initiating director or by mail. postage prepaid, to the initiating director but must be received by the initiating director within five business days after the debtor's receipt of the director's certificate. (b) A hearing under subsection (a) shall be conducted by a three - member panel consisting of the director of finance. the city clerk and the initiating director within five business days following the initiating director's receipt of a written request for such hearing. Notice of the three - member panel's decision in an appeal shall be given to the initiating director and affected contracting entity in writing by deposit in the U. S. mail within five business days after such decision. The determination of the three - member panel shall be final. Sec. 2 -665. Exceptions. (a) The policy and procedures set forth in this division do not apply in the following instances: (1) Public emergency or calamity': (2) Purchase of goods or services available only from a single source. including the lease of any personal property or equipment by the city: (3) Circumstances in which the amount of the indebtedness is insignificant in relation to the economic or other benefit or harm that may result from the application of the policy, as determined by the three- member panel described in section 2- 664(b) of this Code: (4) Pending bankruptcy of an indebted owner or contracting entity: (5) Concluded bankruptcy of an indebted owner or contracting entity in which the debt was legally discharged; (6) Memberships purchased by the city; (7) Condemnation awards: (8) Property acquisitions. including the lease of any real property to or by the city. excluding any lease of city-owned property below fair market rental; (9) Purchase of property. casualty or other insurance by the city; or (10) Banking or other depository contracts. (b) This policy may also be waived as to other matters where city council deems it to be in the city's interest. Section 2: All ordinances or parts of ordinances inconsistent with the terms of this ordinance are hereby repealed: provided. however. that such repeal shall be only to the extent of such inconsistency and in all other respects this ordinance shall be cumulative of other ordinances regulating . and governing the subject matter covered by this ordinance. Section 3: If any provision. section, exception. subsection. paragraph, sentence. clause or phrase of this ordinance or the application of same to any person or the set of circumstances. shall for any reason be held unconstitutional, void or invalid, such invalidity shall not affect the validity of the remaining provisions of this ordinance or their application to other persons or sets of'circumstances and to this end all provisions of this ordinance are declared to be severable. 4 Section 4: This ordinance shall take effect from and after January I, 2010, for those transactions solicited on or after such date. The City Clerk is hereby directed to give notice hereof by causing the caption of this ordinance to be published in the official ne�,vspaper of the City of Baytown at least twice within ten (10) days after passage of this ordinance. INTRODUCED. READ. and PASSED by the affirmative vote of Baytown, this the 10`h day of December. 2009. �p,YTO►y� o� ATT - U: � etn APPROVED AS TO FORM: •' '� STEP R:UKaren \Files \City Council \Ordinances\20090ecember 10\ IndebtednessOrdinanceRevised .doc City Council of the City of CARLOS. Mayor