[HISTORY: Adopted by the Township Committee of the Township
of Delaware 9-24-2012 by Ord. No.
2012-16A. Amendments noted where applicable.]
It shall be the purpose of this chapter to foster competition
in the contracting process that is exempt from public bidding and
thereby to avoid the appearance of improper influence in public contracting
through unregulated contributions to public officials who award contracts
by business entities who seek public contracts.
As used in this chapter, the following terms shall have the
meanings set forth below:
An individual person; firm; corporation; professional corporation;
partnership; organization; or association. When a business entity
is a natural person, a contribution by that person's spouse or
any child living at home shall be deemed to be a contribution by the
business entity. When a business entity is other than a natural person,
a contribution by all principals, partners, officers, or directors
of the entity or their spouses; any subsidiaries directly or indirectly
controlled by the entity; or any political organization organized
under § 527 of the Internal Revenue Code that is directly
or indirectly controlled by the entity shall be deemed to be a contribution
by the business entity.
Includes:
Every candidate for Township of Delaware elective municipal
office;
Every candidate committee established by or for the benefit
of a candidate for Township of Delaware elective municipal office;
Every joint candidate committee established in whole or in part
by or for the benefit of a candidate for Township of Delaware elective
municipal office; and
Every political party committee of the Township of Delaware.
The terms in the foregoing subsection have the meaning set forth
in N.J.A.C. 19:25-1.7.
All contracts for professional services and/or extraordinary
unspecifiable services as such terms are used in the Local Public
Contracts Law at N.J.S.A. 40A:11-5.
Has the meaning set forth in N.J.A.C. 19:25-1.7. By way of
illustration, and not limitation, this definition includes gifts,
pledges, loans, and in-kind contributions.
A.
To the extent that it is not inconsistent with state or federal law,
the Township of Delaware and any of its departments, instrumentalities,
Chief Financial Officer, or purchasing agents, shall not enter into
any agreement or otherwise procure a contract for professional or
extraordinary services from any business entity if such business entity
has solicited or made any contribution in excess of $250 to a candidate
or a holder of public office in the Township of Delaware having ultimate
responsibility for the award of a contract within one calendar year
immediately preceding the date of the contract or agreement.
B.
No business entity who submits a proposal for, enters into negotiations
for, or agrees to any contract or agreement with the Township of Delaware
or any of its departments or instrumentalities, for the rendition
of professional services or extraordinary unspecified services, shall
knowingly solicit or make any contribution in excess of $250 to a
candidate or a holder of public office in the Township of Delaware
having ultimate responsibility for the award of a contract between
the time of first communication between that business entity and the
municipality regarding a specific agreement for professional services
or extraordinary unspecified services, and the later of the termination
of negotiations or rejection of any proposal, or the completion of
the performance or specified time period of that contract or agreement.
C.
For purposes of this section, the office that is considered to have
ultimate responsibility for the award of the contract shall be:
(1)
The Township of Delaware governing body (including the Mayor), if
the contract requires approval or appropriation from the Mayor or
governing body; or
(2)
The Mayor of the Township of Delaware if the contract requires approval
of the Mayor, or if a public officer who is responsible for the award
of a contract is appointed by the Mayor.
D.
No person may be awarded a subcontract to perform under a contract subject to this chapter if the subcontractor would be disqualified by Subsection A from receiving the contract at the time that the subcontract is awarded. Nor may any person who would be disqualified by Subsection A from receiving the contract perform substantially all of the obligations described in a contract for professional or extraordinary services that is subject to this chapter.
No contribution or solicitation of a contribution made prior
to the effective date of this chapter shall be deemed to give rise
to a violation of this chapter.
No contract subject to this chapter may be renewed, extended,
or materially modified unless the resulting renewal, extension, or
modification would be allowable under the provisions of this chapter
if it were an initial contract.
A.
Prior to awarding any contract for professional or extraordinary
services to any business entity, the Township of Delaware or its Chief
Financial Officer, purchasing agents and departments, as the case
may be, shall receive a sworn statement from said business entity
which is the intended recipient of said contract that he/she/it has
not made a contribution in violation of this chapter. The Township
of Delaware, its Chief Financial Officer, purchasing agents and departments
shall be responsible for informing the Township Committee that the
aforementioned sworn statement has been received and that the business
entity is not in violation of this chapter, prior to awarding the
contract or agreement.
B.
A business entity shall have a continuing duty to report to the Township
of Delaware any contribution that constitutes a violation of this
chapter made during the negotiation, proposal process or the duration
of a contract. The Township of Delaware, its purchasing agents and
departments shall be responsible for informing the governing body
within 10 business days after receipt of said report from the business
entity, or at the next Township Committee meeting following receipt
of said report from the business entity, whichever comes first.
C.
The certification required under this section shall be made prior
to entry into the contract or agreement with the Township of Delaware,
or prior to the provision of services or goods, as the case may be,
and shall be in addition to any other certifications that may be required
by any other provision of law.
A business entity that is a party to a contract for professional or extraordinary services may cure a violation of § 74-3 of this chapter, if, within 30 days after the date on which the applicable ELEC report is published, said business entity notifies the municipality in writing and seeks and receives reimbursement of the contribution from the recipient of such contribution.
The contribution prohibition prior to entering into a contract
contained in this chapter does not apply to contracts which are awarded
to the lowest responsible bidder after public advertising for bids
and bidding therefor within the meaning of N.J.S.A. 40A:11-4, or are
awarded in the case of emergency under N.J.S.A. 40A:11-6. There is
no exemption for contracts awarded pursuant to a "fair and open process"
under N.J.S.A. 19:44A-20 et seq.
A.
It shall be material breach of the terms of a Township of Delaware
contract for professional or extraordinary services if a business
entity that is a party to such agreement or contract has:
(1)
Made or solicited a contribution in violation of this chapter;
(2)
Knowingly concealed or misrepresented a contribution given or received;
(3)
Made or solicited contributions through intermediaries for the purpose
of concealing or misrepresenting the source of the contribution;
(4)
Made or solicited any contribution on the condition or with the agreement
that it will be recontributed to a candidate or holder of public office
having ultimate responsibility for the award of a contract;
(5)
Engaged or employed a lobbyist or consultant with the intent or understanding
that such lobbyist or consultant would make or solicit any contribution,
which if made or solicited by the business entity itself, would subject
the business entity to the restrictions of this chapter;
(6)
Funded contributions made by third parties, including consultants,
attorneys, family members, and employees;
(7)
Engaged in any exchange of contributions to circumvent the intent
of this chapter; or
(8)
Directly or indirectly, through or by any other person or means,
done any act which if done directly would subject the business entity
to the restrictions of this chapter.
B.
Any business entity that violates this chapter shall be disqualified
from eligibility for future Township of Delaware contracts for a period
of four calendar years from the date of violation.
C.
Notwithstanding the foregoing, any business entity who violates any
provision of this chapter shall, upon conviction, be liable to the
penalties set forth in the Code of the Township of Delaware.
