[HISTORY: Derived from the Charter and Ordinances, 1974,
of the City of Buffalo as indicated in article histories. Amendments
noted where applicable.]
[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]
H.
Workforce development and diversification apprenticeship training
program.
[Added 6-13-2006, effective 6-27-2006]
(1)
COMMISSIONER
CONSTRUCTION CONTRACT
CONSTRUCTION SUBCONTRACT
CONSTRUCTION WORKER
CONTRACTOR OR SUBCONTRACTOR
WORKER TRAINING PROGRAM
(a)
(b)
(c)
(d)
(e)
(f)
Definitions. As used in this Subsection H, the following terms shall have the meanings indicated:
The Commissioner of the City of Buffalo Department of Public
Works.
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.
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.
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.
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.
A state-registered apprenticeship program through New York
State Department of Labor that includes the following standards:
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
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
Equal opportunity and affirmative action plans; and
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
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
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.
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.
CITY
COMMISSION ON A LIVING WAGE
CONTRACT
CONTRACTOR
COVERED EMPLOYEE AND/OR EMPLOYEE
COVERED EMPLOYER
NOT-FOR-PROFIT ORGANIZATION
PERSON
SUBCONTRACTOR
Definitions. The following definitions shall apply throughout this
section:
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.
The body created by this section charged with overseeing
and evaluating this section and holding hearings to investigate noncompliance
with its provisions.
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.
Any person that enters into a service contract with the City.
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.
The City of Buffalo or any contractor or subcontractor directly
involved in providing a covered service to the City of Buffalo.
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.
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.
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:
(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:
(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.
