[Adopted 9-10-2018 by Ord. No. 2018-11; amended in its entirety 4-1-2019]
Editor's Note: This ordinance was vetoed by the Mayor, but said veto was overridden by the City Council 9-11-2018.
In addition to any other conditions that may be required in connection with tax relief granted by the City under the Housing Development Incentive Program, each Tax Increment Exemption Agreement entered into between the City and the recipient of such relief (the "Sponsor") shall be subject to the following set of mandatory conditions:
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 (hereinafter, collectively and individually, the "contractor") on the property that is the subject of the Certified Housing Development Project (the "HD Project") shall comply with the following qualifications and conditions at all times during their performance of work on the property:
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;
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, wage and hour laws, prompt payment laws, or prevailing wage laws;
The contractor must maintain appropriate industrial accident insurance sufficient to provide coverage for all the employees on the project in accordance with MGL c. 152 and provide documentary proof of such coverage to the Office of Economic Development to be maintained as a public record;
The contractor must properly classify employees as employees rather than independent contractors using applicable federal and state law. Individuals properly classified as employees according to applicable law must be treated as employees for the purposes of minimum wages and overtime, workers' compensation insurance coverage, unemployment taxes, social security taxes and state and federal income tax withholding. (MGL c. 149, § 148B, on employee classification);
The contractor must comply with MGL c. 151, § 1A, and MGL c. 149, § 148, with respect to the payment of wages to properly classified employees;
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
The contractor must comply with the he residency and diversity requirements that would be applicable if the project were subject to the City's Responsible Employer Ordinance.
If any person or entity subject to the foregoing qualifications and conditions fails to comply with any of the foregoing qualifications and conditions with respect to work on the property, the parties agree that such an event materially frustrates the public purpose for which this Agreement and any certification of the HD Project by the Department of Housing and Community Development (DHCD) was intended to advance. In such an event, the City shall petition DHCD for revocation of certification of the HD Project. Upon notice of revocation from DHCD, the tax relief provided by this Agreement shall be terminated upon written notice by the City to the Sponsor, the Sponsor shall pay to the City an amount equal to the value of the tax relief already received under this Agreement.
Complaints concerning compliance with the qualifications and conditions set forth above shall be directed to the Compliance Officer, who shall investigate the complaint and make a determination as soon as administratively feasible and notify the complaining party and the property owner or its designee. Such complaints must be submitted, in writing, no later than 270 days following the completion of the construction project. Any party may appeal the Compliance Officer's determination to the REO Committee, which shall take such steps as it deems necessary to investigate and, after giving the parties an opportunity to be heard, shall make its determination concerning the question of compliance.
In the event the Sponsor challenges the City's efforts to obtain revocation by DHCD of, or challenges DHCD's decision to revoke, certification of the HD Project, the Sponsor shall set aside in an escrow account an amount equal to the full amount of the tax savings that previously had and that would have accrued under this Agreement while any such challenge remains pending. The Sponsor shall have a continuing obligation to contribute to the escrow account amounts equal to the additional tax savings that accrue under this Agreement while its challenge remains pending. The Sponsor shall promptly provide to the City with documentation of its compliance with this obligation. The conditions of the escrow account shall provide that, in the event the Sponsor is unsuccessful in its challenge, the funds in the account shall be paid to the City. The Sponsor'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.