City of Buffalo, NY
Erie County
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Table of Contents
Table of Contents
[HISTORY: Derived from the Charter and Ordinances, 1974, of the City of Buffalo as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Contracts — See Charter, Art. 22.
Finance — See Ch. 16.
Bonding of officers and employees — See Ch. 35, Art. II.
Paving specifications and guaranties — See Ch. 413, Art. XII.
[Derived from Art. IX of Ch. III of the Charter and Ordinances, 1974; amended in its entirety 5-28-2002, effective 6-7-2002]
No bond or undertaking given to the City for any purpose shall be accepted or filed until it has been approved as to form by the Corporation Counsel and as to sufficiency by the Mayor or Comptroller. The approvals shall be endorsed upon the bond. A bid bond submitted with a bid proposal for the doing of a work or improvement or for the furnishing of materials, supplies or equipment may be endorsed in the manner herein set forth after the opening of bids relating thereto; provided, however, that no award shall be made prior to approvals having been so endorsed upon the bond. The Corporation Counsel may delegate to one or more of the attorneys of the Department of Law the power to act in his place in the approval of bonds as to form.
A. 
A bid, performance or maintenance bond shall run to the City of Buffalo and be executed by the bidder or contractor, as the case may be, as principal and by a duly incorporated company authorized to guarantee the performance of contracts and to do business in the State of New York as surety.
B. 
A certified check or bank draft shall run to the City of Buffalo as payee and shall be drawn upon a bank authorized to do business in State of New York.
C. 
The requirements of this article may be waived for contracts for materials and supplies by the Commissioner of Administration and Finance upon a determination that the interests of the City may be better served without requiring the additional forms of security.
When required, a bid bond shall be in the penal amount of not less than 10% of the bid if based upon a lump-sum price or of the unit-price bid multiplied by the number of units estimated in the plans and specifications if based upon a unit price and shall be conditioned that, if the bid accompanying the bond is accepted, the principal named in the bond will, whenever required, enter into a written contract for the performance of the work or improvement or for the furnishing of materials, supplies or equipment mentioned in the bid in accordance with the terms and conditions as provided in the contract documents and that, upon the execution of the contract, the bidder will furnish a performance bond complying with the provisions of this article.
[Amended 10-18-2005, effective 10-28-2005]
A. 
When required, a performance and labor and materials bond shall be in the penal amount of the contract price if based on a lump-sum price or of the unit-price bid multiplied by the number of units estimated in the plans and specifications if based upon a unit price and shall be conditioned for the faithful and complete performance of the contract for the work or improvement or the furnishing of the materials, supplies or equipment in strict compliance with the provisions of the contract documents. A labor and material bond shall also be required, and the bond shall contain a clause that the bidder entering into the contract with a City agency will pay for all services rendered and materials used in the execution of the contract and that a person rendering services or furnishing materials in or about the execution of the contract may maintain an action to recover for the services rendered or the materials furnished against the obligors in the bond as though the person were named therein, provided that such action shall be brought within one year after the cause of action accrued. The obligors in the bond shall be liable and may be sued accordingly. Notice of the commencement of the action and of all proceedings therein shall be given to the Corporation Counsel, and in default of such notice, no recovery shall be had in the action. The Director of Purchasing has the authority to waive the requirement of this section in his/her discretion, up to the contract amount of $250,000. Any waivers under this section in excess of $250,000 must be approved by the Common Council.
B. 
The right of a person rendering services or furnishing materials to maintain an action on such labor and material bond shall be subject, however, to the prior rights of the City of Buffalo against the obligors in said bond.
[Amended 10-18-2005, effective 10-28-2005]
When deemed necessary, whenever the maintenance of any work or improvement is required by the specifications for such work or improvement, said bond shall be in the penal amount of 10% of the contract price and shall be conditioned for the faithful performance of the maintenance of the work or improvement in accordance with or for the period specified in the contract documents.
When required, a certified check, bank draft or letter of credit shall be in the amount of not less than 10% of the bid if based upon a lump-sum price or of the unit-price bid multiplied by the number of units estimated in the plans and specifications if based upon a unit price.
A. 
Where the cost for the purchase of materials, supplies or equipment does not exceed $100,000, the head of the City agency charged with the execution of the contract may, in his discretion, waive the requirement of a performance bond and may authorize instead the submission of a certified check, bank draft, letter of credit in the amount of 50% of said cost or other form of security deemed sufficient by the Commissioner of Administration and Finance, if such security is deemed necessary. Where the cost of such purchase exceeds $100,000, the Common Council may, upon the recommendation of the head of the City agency charged with the execution of the contract, waive the requirement of a performance bond and may authorize instead the submission of a bank draft, certified check or letter of credit in the amount of 50% of said cost or other form of security deemed sufficient by the Commissioner of Administration and Finance, if such security is deemed necessary.
B. 
Where the cost of such purchase does not exceed $100,000 and unusual circumstances are presented, the Common Council may, upon the recommendation of the Commissioner of Administration and Finance, waive the requirements of a performance bond or the alternatives set forth in this section upon such terms and conditions as may be imposed by the Common Council or the Commissioner of Administration and Finance.
[Derived from Secs. 90, 90-A and 91 through 97 of the Charter and Ordinances, 1974]
A. 
When work or improvement is proposed to be purchased, the plans and specifications therefor shall, among other things, specify the manner and times of payment.
(1) 
Where the cost of the work or improvement exceeds the sum of $5,000, payment shall be made upon monthly estimates of the officer of the City agency charged with the supervision of the work or improvement and upon the certificate of the head of the City agency charged with the execution of the work or improvement as the work or improvement progresses, based on the value of the labor and materials incorporated in the work or improvement, less 5% of such estimates, which latter amount shall be retained until the work or improvement is completed by the contractor and accepted by the City.
[Amended 1-23-2001, effective 2-5-2001]
(2) 
Where the cost of the work or improvement does not exceed the sum of $5,000, payment shall be made upon the completion of the work or improvement by the contractor and upon acceptance thereof by the City; provided, however, that prior to the completion and acceptance of the work, a partial payment of up to 75% of the contract amount may be authorized by the Comptroller, in his discretion, upon the certification by the department head that the work cannot be completed because of weather conditions or other conditions beyond the control of the contractor.
B. 
The provisions of this section in reference to the manner and time of payment shall not apply to a contract for work or improvement where the Council determines otherwise in the resolution directing the preparation of plans and specifications and the advertising for bids for the work or improvement. In the absence of such a resolution, the Common Council, upon the certification of the department head charged with the execution of the work and improvement showing the necessity therefor, may by a three-fourths vote suspend the provisions of this section.
Where purchases are to be made on the basis of competitive bidding, a bid specification which permits substitution of items equivalent to those called for in the specification shall also provide that proposed substitutions must be stated in the bid submission and that a determination thereon will be made prior to any contract award.
The Comptroller is authorized to engage the services of a banking institution to act as custodian and service agent for receiving, handling and disbursing bonds, notes, funds and coupons deposited with him by contractors withdrawing retained percentages pursuant to the provisions of § 106 of the General Municipal Law. The Comptroller is also authorized to impose upon each contractor who deposits such bonds, notes, funds and coupons a service charge equal to that charged by the banking institution.
A. 
Where the advertisement for bids for the doing of a work or improvement or for the furnishing of materials, supplies or equipment is required by law or ordinance, the specifications therefor shall specify that no proposal or bid will be considered unless it shall be accompanied by a bid bond, certified check, bank draft or letter of credit complying with the provisions of Article I hereof; provided, however, that in all cases where the estimated cost of the work under a particular contract exceeds $250,000, the specifications shall provide that only a bid bond will be accepted.
B. 
Upon the award of a contract, the head of the City agency charged with the execution thereof shall immediately return to each unsuccessful bidder the certified check, bank draft or letter of credit, if any, submitted with his bid. Any certified check, bank draft or letter of credit submitted by the bidder whose bid is accepted shall be returned to him upon his entering into the contract and furnishing the required performance bond or other security.
A. 
The specifications for a work or improvement or for the furnishing of materials, supplies or equipment shall require that the bidder whose bid is accepted shall, within five days after written notice by the City agency having charge of the execution of the contract, enter into the contract and furnish a performance bond or, where authorized, a certified check, bank draft or letter of credit, complying with the provisions of Article I hereof. The notice shall be served personally or by the mailing thereof in a postpaid wrapper addressed to the bidder at the address given in the bid.
B. 
In the case of those contracts, the award of which must be reported to the Common Council, within five days after being notified by the City agency having charge of the execution of the contract that its bid is being recommended to the Common Council as the lowest responsible bid, the bidder shall furnish to the City a letter from a qualified surety company that such surety company will furnish the bidder with a performance bond in the amount and form required by the specifications or, where authorized, a certified check, bank draft or letter of credit. Failure to do so will result in the withdrawal by the City agency having charge of the execution of the contract of such recommendation.
C. 
In the case of those contracts, the award of which need not be reported to the Common Council, within five days after being notified that its bid has been approved by the City agency having charge of the execution of the contract as the lowest responsible bid, the bidder shall furnish to the City a letter from a qualified surety company that such surety company will furnish the bidder with a performance bond in the amount and form required by the specifications or, where authorized, a certified check, bank draft or letter of credit. Failure to do so will result in the withdrawal by the City agency having charge of the execution of the contract of such approval.
D. 
In the case of informal contracts, the required performance bond or, where authorized, the certified check, bank draft or letter of credit and insurance shall be submitted to the City for approval by the lowest bidder within five days after receipt of bids. Failure to do so will give the City the right to reject such bid and either award the contract to the next lowest bidder or readvertise the work. The contractor must apply to the City for all required permits within five days after the date of the work order given to it; otherwise, the City shall have the right to declare the contract in default and terminate the work order, and the contractors name will be removed from the list of invited bidders for all City work.
E. 
In the case of contracts for work and improvements where the amount does not exceed the sum of $20,000 and in the case of contracts for the furnishing of materials, supplies and equipment where the amount does not exceed the sum of $10,000, a performance bond or other security shall not be required.
[Amended 7-26-1994, effective 8-5-1994]
[Amended 2-13-1991, effective 2-28-1991; 12-28-2004, effective 1-7-2005; 10-4-2005, effective 10-14-2005; 10-18-2005, effective 10-28-2005]
A. 
The advertisement inviting bids for the doing of a work or improvement or for the furnishing of materials, supplies or equipment shall, among other things, state that the bidder must submit with his bid a bid bond, certified check, bank draft or letter of credit complying with the provisions of Article I hereof, as provided in the specifications, and shall also state that, in case of the bidder's failure to enter into the contract for the doing of the work or improvement or the furnishing of materials, supplies or equipment and to furnish a performance bond or, where authorized, a certified check, bank draft or letter of credit, complying with the provisions of Article I hereof, 100% of the penal sum of the bid bond or the amount of the certified check, bank draft or letter of credit, as the case may be, shall be and become the minimum amount of the liquidated damages suffered by the City as a result of such failure, collectible out of the bid bond, certified check, bank draft or letter of credit.
B. 
In all cases where the estimated cost of the work under a particular contract exceeds $250,000, the advertisement shall clearly state that only a bid bond will be accepted.
C. 
Contractors responding to the advertisement for bids and wishing to obtain a set of plans and specifications shall submit the fees as outlined in Chapter 175, Fees. A set of plans and specifications shall be available for inspection free of charge in the office of the Commissioner letting the bids.
D. 
The advertisement inviting bids for the doing of a work or improvement or for the furnishing of materials, supplies or equipment shall, among other things, state that the bidder must submit with his bid, a statement indicating that all products purchased will bear the Energy Star label as awarded by the U.S. Environmental Protection Agency and the U.S. Department of Energy. In addition, all departments and City of Buffalo agencies must include in all bid specifications that all products purchased by the bidder must bear the Energy Star label.
E. 
If the bidder finds it necessary to purchase a product that does not bear the Energy Star label, the bidder or the respective department or agency must include a written statement indicating the reason Energy Star products cannot be used, and a comparison of the initial and operating cost differential during the useful life of the Energy Star rated product and the nonrated product.
F. 
The advertisement inviting bids for the doing of a work or improvement or for the furnishings of materials, supplies, or equipment shall among other things state that the bidder must submit prior to the awarding of a contract, a statement indicating that the bidder will work toward a minority workforce goal of 25%, and women workforce goal of 5%. In addition, a statement must be submitted prior to the awarding of a contract indicating that the bidder will work toward a business utilization goal for minority business enterprise of 25% and women business enterprise of 5%. These goals shall be utilized for all purchasing, professional services and construction contracts. In addition, all departments and City of Buffalo agencies must include in all bid specifications the minority workforce and business utilization goals as stated in this section.
G. 
Apprenticeship training program.
(1) 
Pursuant to New York State Labor Law § 816-b, the City of Buffalo hereby requires all contractors and subcontractors entering into any construction contracts with the City of Buffalo to have established apprenticeship agreements appropriate for the type and scope of work to be performed under the contract, that have been approved by the NYS Commissioner of Labor. "Construction contract" shall mean any contract which involves construction, reconstruction, improvement, rehabilitation, installation, alteration, renovation, demolition, or otherwise providing for any building, facility, or physical structure of any kind with a value in excess of $100,000.
[Amended 6-13-2006, effective 6-27-2006]
(2) 
All contractors and subcontractors entering into any construction contracts with the City of Buffalo, as defined in Subsection G(1) above, shall make every effort to employ apprentices that reside in the City of Buffalo.
H. 
Workforce development and diversification apprenticeship training program.
[Added 6-13-2006, effective 6-27-2006]
(1) 
Definitions. As used in this Subsection H, the following terms shall have the meanings indicated:
COMMISSIONER
The Commissioner of the City of Buffalo Department of Public Works.
CONSTRUCTION CONTRACT
Any contract to which the City of Buffalo shall be a signatory, which involves the construction, reconstruction, improvement, rehabilitation, installation, alteration, renovation, demolition, or otherwise providing for any building, facility, roads, highways, bridges, or physical structure of any kind.
CONSTRUCTION SUBCONTRACT
Any subcontract between a contractor who has a construction contract with the City of Buffalo which involves the construction, reconstruction, improvement, rehabilitation, installation, alteration, renovation, demolition, or otherwise providing for any building, facility, roads, highways, bridges, or physical structure of any kind.
CONSTRUCTION WORKER
An individual directly involved in the construction, reconstruction, improvement, rehabilitation, installation, alteration, renovation, demolition, or otherwise providing for any building, facility, roads, highways, bridges, or physical structure of any kind.
CONTRACTOR OR SUBCONTRACTOR
A contractor or subcontractor that directly employs workers under a construction contract or construction subcontract, as defined herein, for which a worker-training program, registered through New York State Department of Labor, is required.
WORKER TRAINING PROGRAM
A state-registered apprenticeship program through New York State Department of Labor that includes the following standards:
(a) 
An organized, written plan in place that embodies the terms and conditions of employment, and the training and supervision of one or more workers; and
(b) 
A schedule of wages to be paid to the worker consistent with the skills required and approved by the New York State Department of Labor; and
(c) 
Equal opportunity and affirmative action plans; and
(d) 
Workforce development and diversification goals ensuring that the contractor will work toward a minority workforce goal of 25%, and a women workforce goal of 5% combined in project personnel including trades people, trainees, journeymen, apprentices, and supervisory staff; and
(e) 
A minimum of 10% of the workforce employed by any and all contractors and subcontractors that is done by a person or persons participating in an apprenticeship program which has been registered with and approved by the New York State Commissioner of Labor in accordance with Article 23 of the New York Labor Law; and
(f) 
Residency goals ensuring that the contractor will work toward a minimum of 25% of the workforce to include qualified residents from the City of Buffalo.
(2) 
Requirements and exceptions.
(a) 
Any contractor, prior to entering into a construction contract, as defined herein, with the City of Buffalo, or any subcontractor entering into a construction contract, as defined herein, with a contractor who has a construction contract, as defined herein, with the City of Buffalo, is required to have in place at the time of bid a NYS Department of Labor apprenticeship training program, as defined herein, either internally to the contractor or subcontractor and/or through an organization servicing several contractors or subcontractors, appropriate for the type and scope of work to be performed.
(b) 
The Commissioner shall file reports on a quarterly basis with the Mayor of Buffalo and the Common Council as to the training of workers and certification.
(c) 
Any contractor with the City of Buffalo, or any subcontractor entering into a construction subcontract with a contractor who has a construction contract with the City of Buffalo, is required to ensure that the workforce which it engages to perform work in execution of the contract or subcontract meets the minimal workforce diversification standards as defined above. Such contractors and/or subcontractors shall provide the Commissioner or designated compliance officer with the following:
[1] 
A monthly workforce census and such other employment and/or payroll records necessary to verify achievement of the workforce diversity goals and to demonstrate compliance with the minimum standards.
[2] 
Access and cooperation to the project compliance officer to review records on-site and/or at worksite premises to validate workforce participation.
[3] 
With bid submission, a statement committing to providing apprenticeship training opportunities to workers, as well as details of workforce diversification recruiting programs directed at attracting candidates to fill positions to meet such requirements.
(3) 
Rules and regulations. The Commissioner of the City of Buffalo Department of Public Works is hereby authorized to promulgate such rules and regulations as are lawful, necessary and appropriate to implement, enforce, or otherwise carry out the purpose of this section.
(4) 
Equal employment opportunity oversight. The Commissioner of Community Services and Recreational Programming for the City of Buffalo shall conduct oversight and review functions over apprenticeship training programs operated in accordance with the provisions of this section to ensure compliance with federal, state, and local laws and regulations concerning minority and women participation, and he/she shall report to the Common Council annually concerning such compliance.
(5) 
Penalties. Violation of any provision of this section may constitute cause, grounds or other legal justification for termination of any contractual agreement with any contractor or subcontractor engaged in a construction contract or construction subcontract with the City of Buffalo, in accordance with City, County, and state laws, rules, and regulations governing the termination of such contractual agreements.
(6) 
Severability. If any clause, sentence, paragraph, subdivision, section or part of this section or the application thereof to any person, individual, corporation, firm, partnership, entity or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order of judgment shall not affect, impair, or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section, or part of this section or in its application to the person, individual, corporation, firm, partnership, entity, or circumstance directly involved in the controversy in which such judgment or order shall be rendered.[1]
[1]
Editor's Note: Former Subsection H(7), establishing an expiration date for the apprenticeship training program, which subsection immediately followed this subsection, was repealed 6-26-2007, effective 7-9-2007.
When any department, any division of a department or any public agency submits to the Common Council a communication requesting a change in a contract heretofore awarded, said communication shall contain:
A. 
The amount of the original contract as awarded.
B. 
The present amount of the contract.
C. 
The change requested, specifying whether it is an increase or a decrease in the amount of the original contract.
D. 
A statement as to whether or not any previous requests for a change in said contract have been submitted to the Common Council and, if so, the number of changes requested.
E. 
The facts certifying the unforeseen contingencies in carrying out the work or improvement that makes necessary additional work or reduces the work for the completion of the contract.
Where the cost of a work or improvement, in whole or in part, is required to be met by local assessment and where the head of a City agency is not authorized to execute the contract until the assessment has been confirmed, the notice to the bidder whose bid is accepted to enter into the contract shall not be given until the assessment is confirmed.
A bidder who has been certified as the lowest responsible bidder for the doing of a work or improvement or the furnishing of materials, supplies or equipment and who thereafter fails to enter into the contract for the doing thereof and thereafter seeks and receives from the City release from the obligations and damages provided by this section and § 96-13 preceding; and further, in the event that such bidder's request for such release is based upon the bidder's own mistake or lack of information, should such release be granted, such bidder shall be deemed, nonetheless, a defaulter and prohibited from being awarded any further contract by the City for a period of two years following such release. No such release shall be granted by the City in those instances where the City, in its sole discretion, determines to readvertise for the doing of a work or improvement or the furnishing of materials, supplies or equipment by reason of such release unless and until the person seeking to be released pays the cost to be incurred by the City for such readvertising.
A. 
No person other than a resident of the City who is a citizen of the United States shall be employed on a public work being done by the City, a contractor with the City or a subcontractor with the contractor, except that a person not such a resident and citizen may be employed in the manner and under the conditions set forth in the following subsections.
B. 
Whenever residents of the City who are citizens of the United States and who are competent to perform the work in question are not available at the prevailing and customary rate of wages, the head of the City agency having charge of the work or contract, with the written approval of the Commissioner of Industrial Aid of the State of New York, may issue a written authorization for the employment of such number of persons other than residents of the City who are citizens of the United States for such time as may be necessary to do the work, provided that no authorization shall be issued except after compliance with Subsection C hereof.
C. 
Before issuing the written authorization provided for in Subsection B hereof, the head of the City agency having charge of the work or contract shall hold one or more public hearings and shall satisfy himself and certify, in writing, that facts exist which warrant the issuance of the authorization. Where the employment is to be by a contractor or subcontractor, the head of the City agency shall require a written statement from the contractor or subcontractor as to such facts, sworn to before a person authorized to take acknowledgments.
D. 
It shall be the duty of the head of the City agency having charge of the work or contract to cause suitable inspection to be made of all work for which he is responsible to ensure compliance with the provisions of Subsections A, B and C hereof and also to call all breaches thereof to the attention of the proper authorities for prosecution.
E. 
A person violating any provision of Subsection A, B or C of this section shall be subject to a penalty not exceeding $25 for each offense, and a separate offense shall be regarded as committed for every day during which the person shall continue a violation.
F. 
A contract hereafter made by a City agency shall contain suitable provisions requiring contractors and subcontractors to comply with the terms of Subsections A, B and C of this section and shall provide that no recovery shall be had on the contract or subcontract, either against the City agency or other person, if a breach of these subsections has been established.
[Added 7-9-1991, effective 7-22-1991]
The specifications section of all bid packages and solicitations of bids for the purchase of paper and paper products for use by the City of Buffalo shall include the specification that the paper to be supplied in response to the solicitation for bids be made from a minimum of 10% post-consumer recycled fibers and a total of 50% recycled fibers.
[Added 7-27-1999, effective 7-1-2000; amended 4-3-2001, effective 4-16-2001; 6-25-2002, effective 7-8-2002; 7-22-2003, effective 8-4-2003]
A. 
Legislative determination of intent.
(1) 
The City awards many contracts to private firms to provide services to the public and to City government. Experience indicates that procurement by contract of services has all too often resulted in the payment by service contractors to their employees of wages at or slightly above the minimum required by federal and state minimum wage laws. Such minimal compensation tends to inhibit the quantity and quality of services rendered by such employees to the City and to the public. Underpaying employees in this way fosters high turnover, absenteeism and lackluster performance. Conversely, adequate compensation promotes amelioration of these undesirable conditions. Through this section, the City intends to require service contractors to provide a minimum level of compensation that will improve the level of services rendered to and for the City.
(2) 
The inadequate compensation typically paid today also fails to provide service employees with resources sufficient to afford life in the City of Buffalo. It is unacceptable that contracting decisions involving the expenditure of City funds could foster conditions placing a burden on limited social services.
(3) 
The City of Buffalo has a limited amount of taxpayer resources to expend; and even in promising economic times, far too many working Buffalo residents and their families live below or near the poverty line.
(4) 
Due to strict new time limits on public assistance, access to family-supporting jobs in Buffalo is especially crucial, and as a result of new work requirements imposed by welfare reform, the influx of former welfare recipients into low-wage labor market is projected to lower these workers' wages.
(5) 
The use of taxpayer dollars to promote sustenance and create family-supporting jobs will increase consumer income while decreasing levels of poverty. In the City of Buffalo, new homeowners contribute additional property tax revenue while spending more money in our City economy at neighborhood businesses. Additionally, desperate neighborhoods overly dependent on low-wage jobs are blessed with a decrease in crime, given the compelling relationship between crime statistics and low-wage work. And, for Buffalo students facing tougher educational standards, ending the poverty cycle is imperative; presently many of Buffalo's school children are so poor that they qualify for free school lunches and/or breakfasts. No child can learn while hungry, and hunger is the first result of debilitating poverty.
(6) 
In addition, on a region-wide basis, living-wage legislation may benefit the larger community by reducing reliance on taxpayer-funded public assistance such as food stamps, Medicaid, emergency medical services and other social programs provided by the Erie County government.
(7) 
Community organizations, religious leaders, union members and other Buffalo residents have organized together and proposed the policy reflected in this section.
(8) 
Since the City is presently facing a grave financial crisis, in order to relieve the City of any financial burdens in connection with the Living Wage Ordinance, this section creates a volunteer commission to assist in the administration of this section.
B. 
Title and purpose: Buffalo Living Wage Ordinance.
(1) 
This section shall be known as the "Buffalo Living Wage Ordinance."
(2) 
The purpose of this section is to assure that employees of substantial City contractors and subcontractors provided by the City earn an hourly wage that is sufficient for a family of three to live at or above the federal poverty level.
C. 
Definitions. The following definitions shall apply throughout this section:
CITY
The City of Buffalo and any division, subdivision, office, department, board, commission, bureau, including but not limited to the Board of Parking, the Zoning Board of Appeals, the City Planning Board, the Committee for Youth, the Office of Disabled Persons Advocacy, the Commission on Citizens Rights and Community Relations, the Citizens Planning Council, the Board of Dunn Tire Park and the Board of Johnnie B. Wylie Stadium, whose expenses are paid in whole or part by the City.
COMMISSION ON A LIVING WAGE
The body created by this section charged with overseeing and evaluating this section and holding hearings to investigate noncompliance with its provisions.
CONTRACT
Any written agreement for the purchase of services in excess of $50,000 a year, where the contractor providing the service employs more than ten people and where the City is obligated to expend funds or is entitled to receive funds from a contractor in connection with a contract or subcontract for services. This definition excludes professional contracts such as legal, architectural or engineering services.
CONTRACTOR
Any person that enters into a service contract with the City.
COVERED EMPLOYEE AND/OR EMPLOYEE
An employee, either part-time or full-time, by a covered employer in, on or for the project or matter subject to the contract; 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. This definition shall include any employee who is employed (including fulfilling a work requirement under the Family Assistance or Safety Net Program) as a service employee of a contractor or subcontractor on or under the authority of one or more service contracts and who expends any of his or her time thereon, including but not limited to food-service employees, janitorial employees, security guards, parking attendants, landscaping employees, clerical employees and waste management employees.
COVERED EMPLOYER
The City of Buffalo or any contractor or subcontractor directly involved in providing a covered service to the City of Buffalo.
NOT-FOR-PROFIT ORGANIZATION
A corporation having tax exempt status under Section 501(c)(3) of the United States Internal Revenue Code and recognized under the New York State Not-For-Profit Corporation Law.
PERSON
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, trusts, unincorporated organizations, trustees in bankruptcy, receivers, fiduciaries and all other entities recognized at law by this City.
SUBCONTRACTOR
Any person, other than an employee, that enters into a contract with a contractor to assist the primary contractor in performing a service contract.
D. 
Living wage.
(1) 
Applicability. Covered employers shall pay no less than a living wage to their covered employees.
(2) 
Amount of wage; tipped employees.
[Amended 1-9-2007, effective 1-23-2007; 6-27-2017; effective 6-27-2017]
(a) 
Amount of wage. The living wage shall be calculated on an hourly basis. With health benefits, the living wage rate shall be $8.08 (2003); $9.03 (2004); $9.59 (2007). Without health benefits, the living wage rate shall be $9.08 (2003); $10.15 (2004); $10.77 (2007). The living wage rates for 2007 shall be effective 60 days after the passage of this provision.
(b) 
Tipped employees. A covered employer may take a tip credit towards Buffalo Living Wage Ordinance compliance if a service employee receives enough tips to ensure that total tips plus wages equals or exceeds the Buffalo Living Wage. Such tipped employees shall receive a wage of at least the hourly cash wage required for tipped employees under 12 NYCRR 146. Covered employers must comply with all provisions of New York State Labor Law with respect to tipped employees but in no event shall an employee's hourly cash wage plus tips equal less than the hourly equivalent of the Buffalo Living Wage.
(3) 
Cost of living adjustment (COLA). Beginning on January 1, 2008, and on January 1 of each year thereafter assuming inflation, the rate will be increased by an amount corresponding to the increase, if any, in the National Consumer Price Index for all urban consumers (CPI-U) as published by the U.S. Department of Labor, for the year preceding the prior year. (For instance, the increase, if any, on January 1, 2008, shall be based on the annual percent change in the CPI-U for 2006.) The rates set in this chapter, along with any increased cost-of-living adjustments, are not intended to interfere with any freeze on wages of City employees as imposed by the Buffalo Fiscal Stability Authority, if applicable, and to the extent that this chapter is inconsistent with applicable New York State law this provision shall not control.
[Amended 1-9-2007, effective 1-23-2007]
(4) 
No reduction in collective bargaining wage rates. Nothing in this section shall be read to require or authorize any covered employer to reduce wages set by a collective bargaining agreement or required under any prevailing wage.
(5) 
Notifying employees of their potential right to federal earned income credit. Employers 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 forms informing them about the EIC and forms required to secure advance EIC payments from the employer.
E. 
Employer responsibility, compliance and sanctions.
(1) 
Notice of application for contract. Simultaneous with the submission of the bid for the proposed contract, the department authorized to enter into the contract shall obtain an application for contract from the prospective employer and shall forward a copy to the Commission on a Living Wage. An employer's failure to file an application for contract may bar the City or any of its individual departments from considering a bid for contract. Any contract entered into by the City without receipt of an application may be voided if not filed with the department within 60 days. The application must contain the following:
(a) 
The name, address and phone number of both the prospective covered employer and the specific project for which the contract is sought.
(b) 
A description of the project or service for which the contract is sought.
(c) 
A statement of project number of employees, by classification, under the prospective contract.
(d) 
A statement of the projected wage levels of all covered employees in each of the years for which the contract is sought.
(e) 
A written commitment to pay all covered employees a living wage as defined by this section.
(2) 
Quarterly reports from covered employers. Covered employers shall provide publicly available quarterly reports to the Commission on a Living Wage regarding their employment activities, including the name, address, classification, period of employment and wage rate of covered employees hired and laid off during the quarter.
(3) 
Compliance, enforcement and sanctions.
(a) 
Posting. Every employer shall post and keep in conspicuous places in its premises, where notices to employees and applicants for employment are customarily posted, two copies of this section or other materials designed by regulation, informing employees of their rights under this section.
(b) 
Grievance procedure. An employee who believes that his or her employer is not complying with the requirements of this section has the right to file a grievance with the Commission on a Living Wage. Such grievances may be made at any time and shall be investigated as soon as possible by the Commission on a Living Wage. Written and oral statements made by an employee shall be treated as confidential and shall not be disclosed to the covered employer without the consent of the employee.
(c) 
Sanctions for failure to pay a living wage. Where appropriate, following the receipt of a grievance, the Commission shall have the authority to conduct a hearing to determine the validity of the grievance or complaint. After such a hearing, by majority vote of the Commission, the Commission may recommend that sanctions be imposed by the City department head responsible for the service contract in question. The recommended sanctions may include one or more of the following:
[1] 
Withholding payment of any amount due.
[2] 
Wage restitution for each affected employee.
[3] 
Suspension or termination of ongoing contracts.
[4] 
Ineligibility for further City contracts for up to three years or until all penalties and restitution have been paid in full.
(d) 
Sanctions for retaliation. A covered employer shall not discharge, reduce the compensation of or otherwise discriminate against any employee for making a grievance, otherwise asserting his or her rights under this section, or participating in any of its proceedings. The Commission shall investigate allegations of retaliation and, if such allegations shall be found to be true, after notice and hearing, shall recommend, to the City department head responsible for the contract in question, appropriate relief, including but not limited to:
[1] 
Reinstatement of a discharged or demoted employee;
[2] 
Back pay to the date of the violation; or
[3] 
The sanctions in Subsection E(3)(c)[1], [3], or [4] above.
(e) 
The Commission shall make a recommendation to the City department head who has a contract with the covered employer. Within 30 days of the Commission's recommendation, the department head will be obliged to choose one or more of the listed above.
F. 
Enforcement.
(1) 
Private right of action. An employee claiming violation of this section shall have the right to file an action against an employer in the appropriate court, within two years after discovery of the alleged violation. The court may award any employee who files suit pursuant to this provision, as to the relevant period of time, the following:
(a) 
For failure to pay the living wage required by this section: the difference between the living wage required herein and the amount actually paid to the employee.
(b) 
For retaliation for exercise of any rights provided for under this section: reinstatement, back pay, and/or any other relief that a court may deem appropriate.
(c) 
The court may award reasonable attorney's fees and costs to an employee who prevails in any such private action and such other remedies as the court may determine to be just.
(2) 
Each service contract to which these regulations apply shall provide that violation of this section shall enable any aggrieved employee to file an action against the contractor for damage. In addition, such service contract shall also indicate that the City has the discretion to terminate the service contract and pursue any other legal remedies available to the City if the contractor fails to comply with this section. Notwithstanding the failure of a service contract to provide the foregoing information, that failure shall not alleviate the responsibility of a contractor to comply with the requirements of this section.
(3) 
Retaliation prohibited. A covered employer shall not discharge, reduce the compensation of or otherwise discriminate against any employee for making a complaint, otherwise asserting his or her rights under this section, or participating in any of its proceedings.
(4) 
City enforcement. The City may, in its sole discretion, investigate and address any alleged violation of this section's requirements. However, the City's failure to investigate an alleged violation or otherwise enforce any of the provisions of this section shall not create any right to recover damages from the City by any person, including but not limited to an aggrieved employee.
G. 
The Commission on a Living Wage: duties and powers. The City hereby establishes a Living Wage Commission to evaluate the efficacy and enforcement of the section.
[Amended 6-27-2017]
(1) 
Powers. The Living Wage Commission shall have the following powers:
(a) 
To evaluate the enforcement of the Living Wage Ordinance, issue an annual public report and such other reports as it shall deem necessary, and make legislative recommendations regarding needed changes in this ordinance;
(b) 
To help notify City department heads responsible for entering into contracts of their obligations under the law and to assist in their understanding of the law;
(c) 
To hold monthly meetings;
(d) 
To hold public and private hearings and take testimony under oath;
(e) 
To receive, investigate, and hold hearings in connection with complaints by employees of noncompliance with this section and retaliation by employers against employees asserting their rights under this section;
(f) 
To issue and make public written findings in connection with investigations of complaints or other allegations of noncompliance;
(g) 
To recommend sanctions in connection with findings of noncompliance after a notice and hearing to employers;
(h) 
To receive charitable contributions and grants to facilitate its work;
(i) 
To retain private counsel to assist the Commission in its work, provided that such counsel must agree to work free of any charge for legal services or costs unless attorney's fees are awarded by Court;
(j) 
To have access to and the right to duplicate the contracts governed by this section;
(k) 
To select a chairperson, by majority vote of the Commission; and
(l) 
To adopt rules for the operation of meetings and to carry out the powers enumerated above.
(2) 
The right to receive a listing of contracts and to duplicate designated contracts at the Commission's expense.
(a) 
Upon written request to the Comptroller, the Comptroller shall forward a listing of the contract that the City entered into for a stated period of time. That listing shall contain the name and address of the contractor, the amount of the contract, and a description of the services being provided.
(b) 
After reviewing the list provided by the Comptroller, members of the Commission or their designated representative are authorized to view any contract they believe may be governed by this section in the Office of the Comptroller.
(c) 
The Commissioners or their designated representative are authorized to duplicate any contract they may wish to copy, at the Commission's expense, at a cost charged by the City not to exceed $0.10 a page.
(3) 
Composition and selection of Commissioners. The Commission shall be composed of nine members, each serving a three-year term. Commissioners shall serve without compensation. They shall be selected, by written notice to the Common Council, on the following basis:
(a) 
A representative selected by the Mayor;
(b) 
A representative selected by the Common Council;
(c) 
A representative from the Cornell School of Industrial Labor Relations;
(d) 
A representative selected by the Coalition of Black Trade Unionists;
(e) 
Two representatives selected by the Network of Religious Communities;
(f) 
A representative selected by the Buffalo Niagara Partnership;
(g) 
A representative selected by the Western New York Area Labor Federation;
(h) 
A representative selected by the Western New York Welfare Monitoring Task Force.
(4) 
Procedures governing the selection of Commissioners.
(a) 
Each organization designated above shall have three months from the effective date of this section to notify the Common Council in writing of its designated representative. Representatives shall be authorized to take their seat on the Commission at the first monthly meeting following their designation by each organization.
(b) 
If any organization listed above ceases to exist following the passage of this section, the Chairperson of the Commission shall designate a community organization with a comparable organizational mission to select a representative to serve on the Commission.
(c) 
The failure of a designated organization to name a representative shall not affect the authority of the Commission to perform its functions.
(d) 
Consideration with regard to diversity of both race and gender ought to be given in the selection of Commissioners.
(e) 
A majority of the Commission should be residents of the City of Buffalo.
H. 
Exemptions.
(1) 
Grounds for granting exemptions. The Mayor may request that the Common Council grant a partial or whole exemption to the requirements of this section.
(a) 
General exemption. Exemptions may be granted where application of this section to a particular contract is found by the City to violate specific state or federal statutory, regulatory or constitutional provision or provisions, and Common Council approves the exemption on that basis.
(b) 
Youth employment exemption. An exemption to this section may be granted where a covered employer is an organization who regularly employs individuals under the age of 21 in a summer youth program, school-to-work program, or other related seasonal part-time work. The exemption shall only apply to these employees. The City of Buffalo shall be considered such an organization.
(c) 
Not-for-profit organizations. An exemption to this section may be granted to not-for-profit organizations which perform services for the City or its departments.
(2) 
Contents. All general exemption requests shall include the following:
(a) 
The nature of the contract to which this section applies, and the specific or official name of the contract, the statutory or regulatory authority for the granting of the contract, and a copy of that authorit;
(b) 
The conflicting statutory, regulatory or constitutional provision or provisions that make complaints with the section unlawful, and a copy of each provision; and
(c) 
A factual explication and legal analysis of how compliance with this section would violate the cited provision or provisions, and the legal consequences that would attach if this violation were to occur.
(3) 
Common Council review and approval of exemption requests. The Common Council shall consider exemption requests, along with their supporting documentation and analysis, and may hold a public hearing to consider the views of the public, before approving the exemption. The Common Council may approve or deny all or part of a request.
I. 
Severability. In the event any court of competent jurisdiction shall hold any provision of this section invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provisions hereof.
J. 
Effective date. This section shall be effective immediately upon enactment.