§ 8A-1Declaration of policy.
§ 8A-3Purchasing Agent; powers and duties.
§ 8A-4Requisitions and estimates.
§ 8A-5Encumbrance of funds.
§ 8A-6Competitive bidding required for purchases.
§ 8A-7Formal contract procedure.
§ 8A-8Open market procedure for purchases and
§ 8A-9Negotiated contracts.
§ 8A-10Performance and payment security.
§ 8A-12Emergency purchases.
§ 8A-13Inspections and testing.
§ 8A-14Cooperative purchasing.
§ 8A-15Excess property.
§ 8A-16Exchange of surplus property.
§ 8A-17Disposal of surplus property.
§ 8A-18Rochester Living Wage Ordinance.
It is the intent of the City Council in enacting this Purchasing and Property Management Chapter to provide for the City an economical and efficient system for the procurement and supply of personal property and nonpersonal services, including related functions such as contracting, inspection, storage, specifications, property identification and classification, repairing and converting, establishment of inventory levels and establishment of forms and procedures, the utilization of available property, the disposal of surplus property and records management.
As used in this chapter, the following terms shall have the meaning given herein. When not inconsistent with the context, words in the singular number include the plural, words in the plural number include the singular, and words in the present tense include the future.
- AGENCY HEADS
- The head or the deputy head of any City department, agency or commission,
and shall mean the head or the deputy head of any bureau reporting directly
to the Mayor.[Amended 11-12-1985 by Ord. No. 85-480]
- The City of Rochester, New York.
- CITY COUNCIL or COUNCIL
- The Council of the City of Rochester.
- All types of agreements and orders for the procurement or sale of supplies or services. It includes awards, notices of award, letter contract, purchase orders, leases, rentals and bills of sale.
- CONTRACTUAL SERVICES
- All public works, including the construction, repair and maintenance of buildings, roadways, equipment, machinery and other City-owned real and personal property, and also all telephone, gas, water, electric light, power, cleaning and similar services. The term shall not include professional or other personal services which are in their nature unique and not subject to competition.
- EXCESS PROPERTY
- Any property under the control of any using agency which is not required for its needs and the discharge of its responsibilities as determined by the head thereof.
- INVITATION FOR BIDS
- Includes the advertisement for bids and all of the proposed contract documents, including any plans and specifications, instructions to bidders, proposals, contract agreements and addenda thereto.
- MINOR INFORMALITY OR IRREGULARITY IN A BID
- An informality or irregularity which is merely a matter of form and not of substance or which pertains to some immaterial or inconsequential defect or variation of a bid from the exact requirements of the invitation for bids, the correction or waiver of which would not be prejudicial to other bidders. The defect or variation in the bid is "immaterial and inconsequential" when its significance as to price, quantity, quality or delivery is trivial or negligible when contrasted with the total cost or scope of the supplies or services being procured.
- PERSON (and the masculine pronoun as used throughout this chapter)
- Includes any individual, association, partnership, corporation, firm, trust, estate or other entity.
- PURCHASING AGENT
- The designated purchasing agent of the City of Rochester.
- All supplies, materials and equipment and other personal property.
- SURPLUS PROPERTY
- Any excess personal property not required for the needs and the discharge of the responsibilities of all using agencies in the City government, as determined by the Purchasing Agent.
- USING AGENCY
- Any department, agency, commission, bureau, establishment or other unit in the City government which derives its support wholly or in part from the City and which uses supplies or procures contractual services.
The Purchasing Agent shall have the powers and duties prescribed by law, by this chapter and by any rules or regulations as may be prescribed by the Mayor.
Scope of purchasing authority. The Purchasing Agent shall have the power and it shall be his or her duty to enter into purchase rental and lease contracts for supplies and to enter into contracts for public work and other contractual services, except professional and other personal services which are in their nature unique and not subject to competition, needed by any using agency in the City government and to sell surplus property and other personal property owned by the City.
The Purchasing Agent shall assume charge and control of, and be responsible for, the general conduct of the business of his or her office and for the faithful discharge of the duties of his or her deputy and other persons under his or her direct supervision and control. Provided he or she remains so responsible, the Purchasing Agent may designate persons under his or her direct supervision and control to place orders for the purchase of supplies and contractual services.
Except as herein provided and except for persons under the direct supervision and control of the Purchasing Agent, it shall be unlawful for any City officer or employee or any using agency to order the purchase of any supplies or make any contract within the purview of this chapter other than through the Purchasing Agent. Any purchase ordered or contract made contrary to the provisions hereof shall not be approved by the City officials, and the City shall not be bound thereby.
Other powers and duties. In addition to the purchasing authority conferred in Subsection B of this section, and in addition to any other powers and duties conferred by this chapter, the Purchasing Agent shall:
Act to procure for the City the highest quality in supplies and contractual services at the least expense to the City.
Seek to establish uniform specifications for the City, so that supplies and contractual services may be purchased in as large quantities as may be practicable.
Discourage uniform bidding and endeavor to obtain as full and open competition as possible on all purchases and sales.
Prescribe rules and regulations for the implementation of this chapter, including policies and methods relating to procurement of supplies and contractual services and related functions such as contracting, inspection, storage, issue, property identification and classification, and repairing and converting.
Prescribe and maintain such forms as he or she shall find reasonably necessary to the operation of this chapter.
Cooperate with the Department of Finance so as to secure for the City the maximum efficiency in budgeting and accounting.
Establish a bidder's list who shall be sent invitations to bid for commodities that are similar in character and ordinarily handled by the trade group to which the invitations are sent.
The Purchasing Agent shall have the power to require any using agency to file with him or her detailed estimates of its requirements for supplies and contractual services in such manner, at such times and for such future periods as he or she shall prescribe. A using agency shall not be prevented from filing, in the same manner, with the Purchasing Agent at any time a revised estimate for any supplies and contractual services, the need for which was not foreseen when the detailed estimates were filed.
The Purchasing Agent shall examine each requisition or estimate and shall have the authority to return it for revision as to quantity, quality or estimated costs.
Except in the event of a public emergency requiring immediate action which cannot await certification, the Purchasing Agent shall not make any contract nor issue any order for delivery or performance on a contract unless it has been approved by the Director of Finance or Deputy Director of Finance of the City.
Except in an emergency and except as otherwise authorized by law, including any provision of the Charter or the Code of the City, all contracts for public work and all purchase contracts involving expenditures above the limits established by § 103 of the General Municipal Law of the State of New York shall be entered into pursuant to the formal contract procedure set forth in this chapter.
Unless the City Council shall have stated a need for standardization, all invitations for bid shall be based upon specifications which are definite and certain and which shall permit competition.
All invitations for bid shall be approved by the head of the using agency for which the contract is to be made and by such other departments of the City as may be designated by the Mayor.
Advertisement for bids.
Advertisement for bids shall be published by the Purchasing Agent once in at least one official newspaper of the City. At least one such publication shall be made on a day other than a Saturday, Sunday or public holiday. At least five days shall elapse between the first publication of such advertisement and the date so specified for the opening and reading of bids. Such advertisement shall contain a general description of the supplies to be purchased or sold or the contractual services to be procured, shall state where the invitation for bids, including bid forms and specifications, may be obtained, and shall contain a statement of the time when and place where all bids received pursuant to such notice will be publicly opened and read.
Bulletin board. The Purchasing Agent shall also publish all pending advertisements for bids by notices posted on a public bulletin board which he or she shall designate.
When deemed necessary by the Purchasing Agent, he or she shall prescribe a bid security of a certified check, money, bonds or other obligations as a condition precedent to the consideration of a bid. Such bid security shall be set forth in the invitation for bids. No bond shall be submitted to the City having as surety thereon, either as coinsurer or as reinsurer, any surety company not authorized to do business in the State of New York. All bid securities shall be subject to approval by the City as to form and sufficiency of surety.
The Purchasing Agent, after the bids have been opened, shall retain the bid security of the three lowest bidders, and may in his or her discretion return the bid security of all other bidders. The Purchasing Agent shall also retain the bid securities of the three lowest bidders for 10 days following an award of a contract, notwithstanding that such award shall be the first or any subsequent award. A bidder may withdraw his or her bid security not less than 10 days after an award of the contract within the tinge specified, or if no award of the contract be made, within 45 days after the date of opening bids therefore, whichever date is later, and upon much withdrawal his or her bid security shall be forthwith returned. The Purchasing Agent shall forthwith return all bid securities in the event all bids are rejected, and he and she may return any bid security which a bidder is entitled to withdraw.
A bidder shall forfeit any bid security required upon failure on his or her part to execute a contract in a form approved by the City and to furnish the required insurance and security within 10 days after the award, or within such other time as may be specified in the invitation for bids. A bidder shall be deemed to have failed to execute any contract upon failure on his or her part to provide or make available any materials or documents required to be so made by the invitation for bids or by law within 10 days after request therefor by the City, or within such other time as may be specified in the invitation for bids or by law.
Bid opening procedure. Bids shall be submitted in sealed envelopes to the Purchasing Agent and shall be identified as bids on the envelope. All bids shall be publicly opened and read at the time and place stated in the advertisement for bids. A tabulation of all bids received shall be prepared and made available for public inspection.
Rejection of bids. The Purchasing Agent is authorized to reject all bids or parts of all bids when the interests of the City will be served thereby. The Purchasing Agent may also reject any bid unless the bid contains an adequate and reasonable price for all items for which a bid is required.
Bid modifications and mistakes.
Late modification. A late modification of the otherwise successful bid shall be opened at any time it is received; and if in the judgment of the Purchasing Agent it makes the terms of the bid more favorable to the City, it shall be considered.
Minor informalities or irregularities in bids. The Purchasing Agent shall either give a bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive such deficiency, whichever is to the advantage of the City.
Mistakes in bids. Where a mistake in a bid is alleged prior to award and where the bid, as submitted. is responsive to the invitation for bids, the Purchasing Agent, with the approval of, the Corporation Counsel, may:
Determine that the bidder may withdraw his or her bid where the bidder requests permission to do so and clear and convincing evidence establishes the existence of a mistake; however, if the evidence is clear and convincing both as to the existence of a mistake and as to the bid actually intended, and if the bid, both as uncorrected and corrected, is the one most favorable to the City, the Purchasing Agent may correct the bid and not permit its withdrawal.
Determine that the bidder may correct his or her bid where the bidder requests permission to do so and clear and convincing evidence establishes both the existence of a mistake and the bid actually intended, provided that such correction shall not be made where it would result in displacing one or more bids, unless the existence of the mistake and the bid actually intended are ascertainable substantially from the invitation and the bid itself.
When a determination is made concerning an alleged bid mistake, a full and complete statement of the reasons for making the determination shall be prepared by or under the direction of the Purchasing Agent, which statement shall be filed with the other papers relating to the transaction.
Unless the Purchasing Agent determines, as provided in this section, that a bid may be withdrawn or corrected, no plea of mistake in a bid shall be available to the bidder for the recovery of his or her bid security or as a defense to any action based upon such bid, except with the approval of 3/4 of the City Council.
Award of contract.
The Purchasing Agent is authorized to award and execute contracts within the purview of this chapter with the lowest responsible bidder whose proposal shall conform to the invitation for bids.
Determination of responsibility and nonresponsibility. No purchase shall be made from, and no contract shall be awarded to, any bidder unless the Purchasing Agent first determines that the bidder is responsible. The bidder shall demonstrate affirmatively responsibility, including, when necessary, that of proposed subcontractors. Any failure by a bidder to supply or to make available any materials or documents required by the Purchasing Agent or by any other officers of the City for the purpose of determining the bidder's responsibility shall subject the bidder to forfeiture of any bid security. In determining the responsibility of a bidder, the Purchasing Agent shall consider:
The adequacy of the bidder's financial resources or ability to obtain such resources. The Purchasing Agent may require that any bidder submit verified statements as to financial responsibility and experience, which statements shall be made on forms prescribed by the Purchasing Agent. Supplemental statements may be required at any time.
The ability of the bidder to comply with the required or proposed delivery or performance schedule.
The record of performance of the bidder and any proposed subcontractors on other contracts, and particularly on similar contracts had with the City.
The record of integrity of the bidder.
The availability to the bidder of the necessary organization, experience, operational controls and technical skills, and the necessary production, construction and technical equipment and facilities required for performance of the contract.
The compliance by the bidder with any special or general standards of responsibility set forth in the invitation for bids.
The compliance by the bidder with any other standards which may be established by the Purchasing Agent pursuant to rule or regulation.
No bidder shall be determined to be responsible who is in default on the payment of any taxes, licenses or other moneys due the City, or who has defaulted within two years for any reason on a contract had with the City.
The Purchasing Agent shall inform a bidder in writing of a nonresponsibility determination and the reasons therefor.
Upon making a nonresponsibility determination, the Purchasing Agent may bar the bidder and affiliated organizations, as further set forth herein, from bidding on City contracts for a period of not to exceed two years. If a corporation is found to be a nonresponsible bidder, that finding may be applied to a parent, affiliate or subsidiary corporation, if the Purchasing Agent finds that an officer, director or person directly or indirectly controlling 10% or more of the stock of the corporation found to be nonresponsible is an officer, director or person directly or indirectly controlling 10% or more of the stock of the parent, affiliate or subsidiary corporation. If an unincorporated association is found to be nonresponsible, that finding may be extended to other related associations upon a finding by the Purchasing Agent that the related associations have substantially the same ownership, management or operating personnel.
Guidelines for responsibility determinations for the award of public works contracts and contracts for services.
In determining the responsibility of a bidder for a public works contract or a contract for services in excess of $50,000, or a contract for services that is not in a fixed amount if in either of the prior two years a substantially similar contract was in excess of $50,000, the Purchasing Agent shall consider the following items in addition to the requirements already established in Subsection G(2) above. In the case of a contract for services that is bid in two or more parts, this section shall apply if the combined total of all such parts exceeds $50,000:
Lack of adequate expertise, prior experience with comparable projects or financial resources to perform the work of the contract in a timely, competent and acceptable manner. Evidence of such a lack of ability to perform may include, but shall not be limited to, evidence of suspension or revocation for cause of any professional license of any director or officer, or any holder of 5% or more of the bidder's stock or equity; failure to submit satisfactory evidence of insurance, surety bonds or financial responsibility; the status of bankruptcy petitions; suspension or debarment by state or federal government; or a history of termination of prior contracts for cause.
Criminal conduct in connection with government contracts or business activities. Evidence of such conduct may include a judgment of conviction or information obtained as a result of a formal grant of immunity in connection with a criminal prosecution of the bidder, any director or officer, or holder of 5% or more of the shares or equity of the bidder or any affiliate of the bidder.
Violations of safety and/or training standards as evidenced by a pattern of OSHA violations or the existence of willful OSHA violations.
Willful noncompliance with the prevailing wage and supplements payment requirements of the Labor Law by the bidder or any affiliate of the bidder.
Any other significant Labor Law violations, including but not limited to Child Labor Law violations, failure to pay wages or unemployment insurance tax delinquencies.
Any significant violation of the Workers' Compensation Law, including but not limited to the failure of a bidder to provide proof of workers' compensation or disability benefits coverage.
Any criminal conduct involving violations of the Environmental Conservation Law or other federal or state environmental statutes, or repeated or significant civil violations of federal or state environmental statutes or regulations.
Any criminal conviction concerning formation of, or any business association with, an allegedly false or fraudulent women's or minority business enterprise (W/MBE), or any denial, decertification, revocation or forfeiture of W/MBE status by New York State.
Any other cause of so serious or compelling a nature that it raises questions about the responsibility of a bidder, including but not limited to submission to the City of a false or misleading statement on a sworn statement of bidder qualifications, or in some other form, in connection with a bid for or award of a contract.
In addition to the factors specified above, the Purchasing Agent may also give due consideration to any other factors considered to bear upon bidder responsibility, including but not limited to, any mitigating factors brought to the City's attention by the bidder.
The Director of Finance shall develop rules and regulations to implement these guidelines, including a sworn statement of bidder qualifications to gather the information set forth above in the guidelines. Said sworn statement shall be completed by the apparent low bidder and the second low bidder on public works contracts in excess of $50,000. The Purchasing Agent shall use the information contained in the response to the sworn statement in making a determination of bidder responsibility before awarding the contract.
A nonresponsibility determination by the Purchasing Agent may be appealed by the bidder to the Director of Finance by delivery to the Director of Finance of a written notice of appeal within 10 days after receipt of the determination of the Purchasing Agent. The Director of Finance shall offer the bidder an opportunity to be heard, at which the Director of Finance or the Director's designee shall preside. Such hearing shall be scheduled as soon as possible after a request. The bidder shall be permitted to be represented by counsel, to submit evidence and summon witnesses on his or her behalf and to inspect documents and cross-examine opposing witnesses. Compliance with the technical rules of evidence shall not be required. The hearing officer, if other than the Director of Finance, shall make a recommendation to the Director of Finance. The Director of Finance shall make the final determination in writing, based upon evidence produced at the hearing. In the final determination, the Director of Finance may accept, reject or modify the determination and penalty imposed by the Purchasing Agent. The determination of the Director of Finance shall be subject to review pursuant to Article 78 of the Civil Practice Law and Rules.
Award to other than low bidder. When the award is not given to the lowest bidder, a full and complete statement of the reasons for placing the award elsewhere shall be prepared by or under the direction of the Purchasing Agent, which statement shall be filed with the other papers relating to the transaction.
Tie bids. In cases where two or more responsible bidders furnishing the required security submit identical bids as to price, the Purchasing Agent may award the contract to any of such bidders.
Prohibition against subdivision. No contract, purchase or sale shall be subdivided to avoid the requirements of this section.
All contracts for public work, and all purchase contracts, rentals and leases of supplies, and all sales of personal property of the City which are required to be purchased or sold by the open market procedure may be made without newspaper advertisement and without observing the formal contract procedure. All open-market purchases shall, wherever feasible, be based on at least three competitive bids, and shall be awarded to the bidder who shall satisfy the Purchasing Agent as to his or her responsibility and whose bid is most advantageous to the City, price and other factors considered. All open-market sales shall be based on at least two competitive bids, or if such bids cannot reasonably be obtained, on such other form of evaluation as the Purchasing Agent shall deem reasonable, and shall be awarded to the responsible bidder whose bid is most advantageous to the City, price and other factors considered. The Purchasing Agent shall solicit bids by such method or methods, including direct mail and telephone, as he or she shall deem suitable.
Except as provided in Subsection B of this section, contracts negotiated on behalf of the City by the Purchasing Agent may be of any type which in the opinion of the Purchasing Agent will promote the best interests of the City. The Purchasing Agent shall determine that the method of contracting for a negotiated contract is likely to be less costly than other methods, that the prospective vendor is responsible, that the supplies or contractual services to be provided are of the kind and quality required by the City and that the price is fair and reasonable.
The cost-plus-a-percentage-of-cost system of contracting shall not be used, and in the case of a cost-plus-a-fixed-fee contract, the fee shall not exceed 15% of the estimated cost of the contract, exclusive of the fee, as determined by the Purchasing Agent at the time of entering into such contract. The Purchasing Agent, or his or her designate, shall have the right to inspect the plans and to audit the books and records of any prime contractor or subcontractor engaged in the performance of a cost or cost-plus-a-fixed-fee contract.
All contracts negotiated pursuant to authority contained in this section shall include a clause to the effect that the Purchasing Agent or his or her duly authorized representative shall until the expiration of three years after final payment have access to and the right to examine any directly pertinent books, documents, papers and records of the contractor or any of his or her subcontractors engaged in the performance of and involving transactions related to such contracts or subcontracts. Such clause may be omitted from contracts where the Purchasing Agent determines, after taking into account the price and availability of the property of services from other sources, that the public interest would be best served by the omission of such clause.
The Purchasing Agent shall have the authority to require on any and all contracts a performance bond for the faithful performance of the contract and a payment bond for the protection of all persons supplying labor and material in the prosecution of the work provided in the contract in such amounts as he or she shall find reasonably necessary to protect the best interests of the City. The Purchasing Agent shall require such performance and payment bonds having a penal sum at least equal to 50% of the total amount payable by the terms of the contract on all contracts for contractual services involving an expenditure of $100,000 or more. The Purchasing Agent may require such performance or payment bonds at any time, notwithstanding that the invitation for bids shall not specifically require performance or payment bonds.
The Purchasing Agent or the Director of Finance may require additional performance or payment bond protection in the event that a modification or aggregate of modifications to a contract may be expected to increase the contract price by $50,000 or 25% of the basic contract price, whichever is less, or if a modification is for new or additional work which is beyond the scope of the existing contract.
Notwithstanding the provisions of Subsection A of this section, where the contract is not for the construction, alteration or repair of any public building or other public work, the Purchasing Agent, with the approval of the Director of Finance, may defer the filing and execution of a performance or payment bond, provided that at least 50% of the contract price shall be withheld until acceptance of the work under the contract, and provided further that the bid security shall be retained in lieu of all or any part of the performance and payment security. Upon completion and acceptance of such work, the Purchasing Agent may waive the execution and filing of the performance or payment bond.
All bonds submitted pursuant to this section shall be subject to approval by the City as to form and sufficiency of surety. No bond shall be submitted to the City having as surety thereon, either as coinsurer or as reinsurer, any surety company not authorized to do business in the State of New York.
Storerooms and storage places may be established by the Purchasing Agent to facilitate buying for future needs, in which case a store's revolving fund of a fixed amount shall be provided by the City Council. All such storerooms, store places and stores therein contained shall be under the direction and control of the Purchasing Agent. The Purchasing Agent may arrange for the operation by any using agency of warehouses, supply centers, repair shops, fuel yards and other similar facilities.
By Purchasing Agent. In case of an apparent emergency which requires the immediate purchasing of supplies or contractual services, and with the approval of the Mayor, the Purchasing Agent may secure by open market procedure set forth in this chapter, at the lowest obtainable price, any supplies or contractual services regardless of the amount of the expenditure. A full report of the circumstances of an emergency purchase, including the dates upon which any officer or employee of the City and the Purchasing Agent became aware of the need for the purchase and an explanation setting forth the reasons why the purchase was required to be made immediately, shall be filed by the Purchasing Agent with the Director of Finance.
By heads of using agencies. In the case of a public emergency requiring immediate action, and with the consent of the Purchasing Agent and with the approval of the Mayor, the head of any using agency may purchase directly any supplies whose immediate procurement is essential to protect the life, health, safety or property of the inhabitants of the City. The Purchasing Agent shall prescribe by rules and regulations the procedure under which emergency purchases by heads of using agencies may be made. The head of such using agency shall send to the Purchasing Agent a requisition and a copy of the delivery record together with a full written report of the circumstances of the emergency, which report shall conform to the requirements of and shall be filed in the manner provided in Subsection A of this section.
The Purchasing Agent shall inspect or supervise the inspection of all deliveries of supplies or contractual services to determine their conformance with the specifications set forth in the order or contract.
The Purchasing Agent may authorize using agencies having the staff and facilities for adequate inspection to inspect all deliveries made to such using agencies under such rules and regulations as the Purchasing Agent may prescribe.
The Purchasing Agent is authorized in his or her discretion to require chemical, physical or other tests of samples submitted with bids and samples of deliveries to determine their quality and conformance with the specifications. In the performance of such tests, the Purchasing Agent shall have the authority to make use of the laboratory and other testing facilities of any agency of the City government and of any outside laboratory.
The Mayor shall have the authority to join with other units of government in cooperative purchasing plans when the best interests of the City would be served thereby. The Purchasing Agent shall have the authority to purchase or lease materials, supplies and equipment through contracts of the Rochester City School District, the County of Monroe and the State of New York, when the best interests of the City would be served thereby.
Reports. All using agencies shall submit to the Purchasing Agent at such times and in such form as he or she shall prescribe reports showing all excess property under the control of such using agency.
The Purchasing Agent is authorized to transfer excess property to other using agencies.
In acquiring personal property, the Purchasing Agent may exchange or sell similar items with the approval of the head of the using agency in which said items may be located, and may apply the exchange allowance or proceeds of sale in such cases in whole or in part payment for the property acquired, provided that any transaction carried out under the authority of this section shall be evidenced in writing.
The Purchasing Agent shall have supervision and direction oven the disposition of surplus property. The Purchasing Agent is authorized to dispose of surplus property by sale, exchange, lease, permit or transfer, for cash, credit or other property, with or without warranty, and upon such other terms and conditions as the Purchasing Agent deems proper, and he or she may execute such documents for the transfer of title or other interest in property and take such other action as he or she deems necessary or proper to dispose of such property under the provisions of this chapter. Any transaction carried out under the authority of this section shall be evidenced in writing. The Purchasing Agent shall not dispose of any surplus property unless such property has been designated as excess property by the head of the using agency in which such property is located; nor shall the Purchasing Agent dispose of any surplus property having an estimated value exceeding $1,000, unless the Mayor shall have authorized the disposition of such property.
A deed, bill of sale, lease or other instrument executed by the Purchasing Agent purporting to transfer title or any other interest in surplus property under this chapter shall be conclusive evidence of compliance with the provisions of this chapter insofar as concerns title or other interest of any bona fide grantee or transferee for value and without notice of lack of such compliance.
The care and handling of surplus property pending its disposition may be performed by the Purchasing Agent or, when so determined by the Purchasing Agent, by the using agency in possession thereof or by any other using agency consenting thereto.
All disposals or contracts for disposals of surplus property shall be made by the Purchasing Agent only after soliciting competitive bids in conformance with the formal contract procedure for surplus property having an estimated value exceeding $1,000 or the open market procedure for surplus property having an estimated value of $1,000 or less, as such procedures are prescribed in this chapter, except as provided in Subsection E of this section.
Disposals and contracts for disposal may be negotiated, but subject to obtaining such competition as is feasible under the circumstances, if:
The public health, safety or welfare requires a particular disposal of personal property;
Public exigency will not admit of the delay incident to advertising certain personal property;
Bid prices after advertising therefor are not reasonable, either as to all or some part of the property, or have not been independently arrived at in open competition;
The personal property involved is exchanged or sold for similar items pursuant to this Purchasing Chapter;
The personal property involved is abandoned, destroyed or donated, provided that the approval of the Mayor shall be obtained for any donation; or
Otherwise authorized by this chapter or other law, including the Charter or Code of the City.
Personal property and movable fixtures and equipment purchased by the City or contractors and subcontractors of the City with funds received by the City from the federal government pursuant to federal grants or programs, title to which property or fixtures and equipment either has remained with the City or reverts to the City upon termination of the grant, program or contract, shall be deemed excess and surplus property and shall be disposed of for adequate consideration in any manner deemed appropriate by the Purchasing Agent with the approval of the Mayor. Prior to disposition, the Purchasing Agent shall obtain the legal opinion of the Corporation Counsel regarding title.
Title and purpose. This section shall be known as the "Rochester Living Wage Ordinance." The purpose of this section is to ensure that employees of substantial City contractors and subcontractors earn an hourly wage that is sufficient for a family to live at or above the federal poverty guideline.
Definitions. The following definitions shall apply throughout this section:
- BUSINESS ASSISTANCE
- Any grant or loan of at least $50,000 realized by or through the authority or approval of the City, excluding welfare-to-work, job training or youth employment programs.
- BUSINESS ASSISTANCE BENEFICIARY
- Any direct recipient of at least $50,000 of business assistance.
- CASUAL EMPLOYEE
- An occasional employee without regular or set hours, or an employee regularly working fewer than 20 hours a week.
- The City of Rochester.
- Any person who enters into a service contract with the City, except other governmental units.
- COVERED EMPLOYEE
- A person employed either part-time or full-time by the covered employer who directly expends his or her time on a service contract with the City, for the time said person actually spends on the service contract, or a person employed either part-time or full-time by a business assistance beneficiary at a workplace which has received business assistance from the City; provided, however, that persons who are employed in construction work covered pursuant to federal or state prevailing wage laws shall be exempt from this section, as shall participants in welfare-to-work, job training or youth employment programs, and workers with disabilities, full-time students, messengers, learners, student-learners and apprentices for whom the covered employer has received a certificate to pay special minimum wages pursuant to Section 14 of the Federal Fair Labor Standards Act (FLSA) (29 U.S.C. § 214). "Covered employee" shall not include a casual employee or seasonal employee.
- COVERED EMPLOYER
- Any person who is a contractor or subcontractor directly involved in providing a service to the City pursuant to a service contract as defined herein.
- One or more of the following or their agents, employees, representatives and legal representatives: individuals, corporations, partnership, joint ventures, associations, labor organizations, educational institutions, mutual companies, joint-stock companies, trust, unincorporated organizations, trustees in bankruptcy, receivers, fiduciaries and all other entities recognized at law by the City.
- SEASONAL EMPLOYEE
- An employee hired temporarily for a period not to exceed 90 days at any given time within a six-month period.
- SERVICE CONTRACT
- A contract awarded to a contractor by the City primarily for furnishing services to or for the City (excluding the purchase of goods or other property, the leasing of property or the development, redevelopment or rehabilitation of real property) and that involves an expenditure by the City to the contractor of at least $50,000, or the retention by the contractor of fees of at least $50,000, during a period of one year. Said threshold of $50,000 shall not include funds provided by the City to be passed through to eligible participants in federal- or state-funded programs. For the purposes of this section "service contract" shall not include any contract awarded through competitive bidding pursuant to General Municipal Law § 103. "Service contract" shall include unit price contracts that are designated by the City, where, based on experience or expected level of work, the City anticipates an expenditure to the contractor of at least $50,000 during a period of one year. "Service contract" shall not include separate contracts in amounts of less than $50,000 with the same contractor for different services which may involve a total expenditure by the City to the contractor of more than $50,000 during a period of one year. However, contracts may not be segmented to fall under the threshold, and multiple contracts with the same contractor for the same services shall be aggregated to determine the total expenditure for purposes of application of this section. Where an amendatory agreement or additional agreement with the same contractor causes the total expenditure to exceed $50,000 during a period of one year, this section shall apply to the amendatory agreement or additional agreement.
- Any person other than an employee that enters into a contract with a contractor to assist the primary contractor in performing a service contract, including any temporary employment agency that enters into a contract with a contractor or business assistance beneficiary to provide employees to assist the primary contractor in performing a service contract or to perform services for a business assistance beneficiary at a workplace which has received business assistance from the City.
Applicability. Covered employers and business assistance beneficiaries shall pay no less than a living wage to their covered employees, which, for covered employees working on a service contract, shall be for the time directly expended on the service contract.
Amount of wage. The living wage shall be calculated on an hourly basis as paying $8.52 to covered employees who are offered health insurance benefits by the covered employer or business assistance beneficiary and $9.52 to covered employees who are not offered health insurance benefits by the covered employer or business assistance beneficiary.
Revision process. This section shall be reviewed and evaluated two years after adoption in order to evaluate the effectiveness of the legislation in terms of its policy goals, and monitoring and enforcement procedures. The amount of the living wage shall be increased annually to reflect inflation as captured by the unadjusted consumer price index for all urban consumers (CPI-U), United States city average, as published by the Bureau of Labor statistics of the United States Department of Labor. The first indexing adjustment shall occur July 1, 2002, in proportion to the increase of the United States city average of the CPI-U at the immediately preceding April 30 over the year earlier April 30, and shall be adjusted every July 1 thereafter.
No reduction in wage rates or hours. Nothing in this section shall require or authorize any covered employer or business assistance beneficiary to reduce wages or work hours of any covered employee, and a covered employer or business assistance beneficiary shall not reduce wages or work hours as a result of coverage by this section, and this section shall not be construed so as to reduce wages required under any prevailing wage law.
Notifying employees of their potential right to the federal earned income credit. Covered employers and business assistance beneficiaries shall inform employees making less than $12 per hour of their possible right to the Federal Earned Income Credit (EIC) under section 32 of the Internal Revenue Code of 1954, 26 U.S.C. § 32, and shall make available to employees information about the EIC and how to obtain forms required to secure advance EIC payments from the employer.
Tipped employees. Covered employers who elect to receive credit for tips received by covered employees in accordance with the provisions of the FLSA may also include as wages under this section an additional amount on account of tips received by a covered employee, provided that the tip amount is at least equal to the difference between the wages paid the covered employee and the living wage. The additional amount on account of tips may not exceed the value of the tips actually received by the covered employee. This subsection shall not apply to any covered employee unless such employee has been informed by the covered employer that his or her direct wages shall be less than the living wage, provided that the amount of tips plus direct wages received by such employee at least equals the living wage, and provided that all tips received by such employee have been retained by the employee. This subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips. If a covered employee's tips combined with the covered employer's direct wages do not equal the living wage, the covered employer must make up the difference. It is the responsibility of the covered employer to prove, upon request by the City, the payment of at least a living wage in combined direct wages and tips to the covered employee. FLSA requirements shall be applied to determine eligibility for including tips as wages and calculating the total amount of wages and tips.
Employer responsibility, compliance and sanctions.
Application for contract or business assistance. Every proposal or application for a service contract or business assistance shall include a written commitment by the applicant to pay all covered employees a living wage as defined by this section and shall include a list of job titles and wage levels of all covered employees in each of the years for which the contract or business assistance is sought.
Reports from covered employers and business assistance beneficiaries. Covered employers and business assistance beneficiaries shall provide to the City publicly available annual reports of job titles and wage rates of covered employees during the term of the service contract or business assistance. For service contracts or business assistance of less than one year, covered employers and business assistance beneficiaries shall provide such reports at the beginning and end of the contract or business assistance.
Compliance, enforcement and sanctions.
Covered employer and business assistance beneficiary cooperation. The covered employer or business assistance beneficiary shall permit representatives from the City to observe the work being performed at its place of work; furthermore, the covered employer or the business assistance beneficiary shall permit said representatives to interview employees and to examine its books and records relating to employment and payroll to determine if the covered employer or the business assistance beneficiary is in compliance with the provisions of this section. Covered employers and business assistance beneficiaries shall maintain for a period of at least three years all necessary records to document the wages paid to each covered employee, and the time expended by each covered employee on a service contract.
Posting. Every covered employer and business assistance beneficiary shall post and keep in conspicuous places on their premises, where notices to employees and applicants for employment are customarily posted, a notice supplied by the City informing employees of their rights under this section. Included in this posting shall be a phone number at the City that covered employees may call to lodge complaints. If the covered employer or subcontractor is a temporary employment agency, this notice shall be mailed to all covered employees before or in conjunction with the receipt of the covered employees' first paycheck.
Grievance procedure. A covered employee who believes that his or her employer is not complying with requirements of this section has the right to file a complaint with the City. Complaints by covered employees of alleged violations shall be made within one year of the date of the violation and shall be investigated promptly by the City. Written and oral statements made by a covered employee shall be treated as confidential and shall not be disclosed to the covered employer or business assistance beneficiary without the consent of the employee. While protection of the employee's confidentiality shall be a priority for the City, this provision shall not prevent the City from informing the covered employer of the name of the covered employee and the basis of the complaint in order to access information necessary to investigate the complaint.
Duties of the City.
It shall be the responsibility of the City to create guidelines for investigating and handling grievances under this section; to examine the pay rolls, as necessary, to determine compliance and cause investigations to be made, as necessary, to monitor compliance with the provisions of this section.
The City shall promptly investigate complaints alleging noncompliance by covered employers and business assistance beneficiaries. The contracting agency may, in accordance with the powers herein granted, require the production by the employer of such evidence as required to determine compliance.
Covered employer or business assistance beneficiary may dispute finding of noncompliance. A covered employer or business assistance beneficiary may dispute a finding of noncompliance by requesting a hearing with a representative of the City. A covered employer or business assistance beneficiary must request such a hearing within 60 days after receiving notice of a finding of noncompliance.
Sanctions. A covered employer or business assistance beneficiary found to be in violation of any provision in this section shall be sanctioned as follows:
The City shall withhold payment of so much of any amount due in business assistance or on a service contract or on any other contract in effect with the same covered employer or business assistance beneficiary which is equal to the alleged underpayment to a covered employee, order wage restitution for each affected employee and serve a written notice of violation on the covered employer or business assistance beneficiary.
For willful or repeated violations, the City shall additionally impose a fine not to exceed $100 per day on the covered employer or business assistance beneficiary for each employee found to be paid less than the living wage, and may order the covered employer or business assistance beneficiary to repay business assistance awarded by the City and any amounts paid on service contracts for services not yet rendered terminate ongoing service contracts or business assistance and declare the covered employer or business assistance beneficiary ineligible for further City service contracts or business assistance for three years, after which time the covered employer or business assistance beneficiary may be eligible for reinstatement if all underpayments and fines are paid.
All sanctions will be a matter of public record.
Retaliation and discrimination barred. A covered employer or business assistance beneficiary shall not discharge, reduce compensation or otherwise discriminate against any employee because that employee made a complaint or otherwise asserted his or her rights under this section, or participated in any of its proceedings. The contracting agency shall investigate allegations of retaliation or discrimination and shall, if found to be true, after notice and hearing, order appropriate relief, including restitution and reinstatement of the discharged employee with back pay to the date of the violation.
Enforcement. The City or any person aggrieved by a violation of this section may bring an action in any court of competent jurisdiction, and in the event that the City or aggrieved person prevails in such action, the court may award damages and reasonable costs and attorney fees, and if said action is brought by an individual for underpayment of wages, the court shall also award said individual an additional amount as liquidated damages equal to 25% of the wages found to be due.
Service contracts and business assistance in existence prior to the effective date of this section shall be exempt from this section, except that any amendment or modification of such service contracts and business assistance occurring on or after the effective date of this section shall be subject to the conditions specified in this section.
Welfare-to-work, youth employment programs and job training programs shall be exempt from this section as they relate to the pay scale of participating youth workers aged 21 or younger, or to participants in a bona fide job-training program or welfare-to-work program.
This section shall not apply to covered employees compensated in accordance with the terms of a collective bargaining agreement.
Severability. In the event that any provision of this section shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provisions hereof.