[Amended 1-19-2016 by Ord. No. 2016-6]
It is the intent of the City Council in enacting
this Purchasing and Property Management Chapter to provide for the
City an economical and efficient system for the procurement and supply
of personal property and nonpersonal services, including related functions
such as contracting, inspection, storage, specifications, property
identification and classification, repairing and converting, establishment
of inventory levels and establishment of forms and procedures, the
utilization of available property and the disposal of surplus property
and records management.
As used in this chapter, the following terms
shall have the meaning given herein. When not inconsistent with the
context, words in the singular number include the plural, words in
the plural number include the singular, and words in the present tense
include the future.
AGENCY HEADS
The head or the deputy head of any City department, agency
or commission, and shall mean the head or the deputy head of any bureau
reporting directly to the Mayor.
[Amended 11-12-1985 by Ord. No. 85-480]
CITY
The City of Rochester, New York.
CONTRACTS
All types of agreements and orders for the procurement or
sale of supplies or services. It includes awards, notices of award,
letter contract, purchase orders, leases, rentals and bills of sale.
CONTRACTUAL SERVICES
All public works, including the construction, repair and
maintenance of buildings, roadways, equipment, machinery and other
City-owned real and personal property, and also all telephone, gas,
water, electric light, power, cleaning and similar services. The term
shall not include professional or other personal services which are
in their nature unique and not subject to competition.
EXCESS PROPERTY
Any property under the control of any using agency which
is not required for its needs and the discharge of its responsibilities
as determined by the head thereof.
INVITATION FOR BIDS
Includes the advertisement for bids and all of the proposed
contract documents, including any plans and specifications, instructions
to bidders, proposals, contract agreements and addenda thereto.
MINOR INFORMALITY OR IRREGULARITY IN A BID
An informality or irregularity which is merely a matter of
form and not of substance or which pertains to some immaterial or
inconsequential defect or variation of a bid from the exact requirements
of the invitation for bids, the correction or waiver of which would
not be prejudicial to other bidders. The defect or variation in the
bid is "immaterial and inconsequential" when its significance as to
price, quantity, quality or delivery is trivial or negligible when
contrasted with the total cost or scope of the supplies or services
being procured.
SUPPLIES
All supplies, materials and equipment and other personal
property.
SURPLUS PROPERTY
Any excess personal property not required for the needs and
the discharge of the responsibilities of all using agencies in the
City government, as determined by the Purchasing Agent.
USING AGENCY
Any department, agency, commission, bureau, establishment
or other unit in the City government which derives its support wholly
or in part from the City and which uses supplies or procures contractual
services.
[Amended 11-10-1992 by Ord. No. 92-403]
Except in the event of a public emergency requiring
immediate action which cannot await certification, the Purchasing
Agent shall not make any contract nor issue any order for delivery
or performance on a contract unless it has been approved by the Director
of Finance or Deputy Director of Finance of the City.
[Amended 10-22-1974 by Ord. No. 74-363; 8-9-1983 by Ord. No. 83-340; 12-17-1991 by Ord. No.
91-528]
Except in an emergency and except as otherwise
authorized by law, including any provision of the Charter or the Code
of the City, all contracts for public work and all purchase contracts
involving expenditures above the limits established by § 103
of the General Municipal Law of the State of New York shall be entered
into pursuant to the formal contract procedure set forth in this chapter.
[Amended 2-14-2006 by Ord. No. 2006-22; 1-19-2016 by Ord. No. 2016-6]
All contracts for public work, and all purchase contracts, rentals
and leases of supplies, and all sales of personal property of the
City which may be purchased or sold without the formal contract procedure
shall be made on the open market. All open-market purchases shall,
wherever feasible, be based on at least three competitive bids, and
shall be awarded to the bidder who shall satisfy the Purchasing Agent
as to his or her responsibility and whose bid is most advantageous
to the City, price and other factors considered. All open-market sales
shall, wherever feasible, be based on at least two competitive bids,
or through a public or Internet auction process, or if such bids cannot
reasonably be obtained, on such other form of evaluation as the Purchasing
Agent shall deem reasonable, and shall be awarded to the responsible
bidder whose bid is most advantageous to the City, price and other
factors considered. The Purchasing Agent shall solicit bids by such
method or methods as he or she deems suitable to insure open and fair
competition, including but not limited to direct mail, electronic
mail, telephone and the Internet marketplace.
Storerooms and storage places may be established
by the Purchasing Agent to facilitate buying for future needs, in
which case a store's revolving fund of a fixed amount shall be provided
by the City Council. All such storerooms, store places and stores
therein contained shall be under the direction and control of the
Purchasing Agent. The Purchasing Agent may arrange for the operation
by any using agency of warehouses, supply centers, repair shops, fuel
yards and other similar facilities.
[Amended 11-12-1985 by Ord. No. 85-480]
A. By Purchasing Agent. In case of an apparent emergency
which requires the immediate purchasing of supplies or contractual
services, and with the approval of the Mayor, the Purchasing Agent
may secure by open market procedure set forth in this chapter, at
the lowest obtainable price, any supplies or contractual services
regardless of the amount of the expenditure. A full report of the
circumstances of an emergency purchase, including the dates upon which
any officer or employee of the City and the Purchasing Agent became
aware of the need for the purchase and an explanation setting forth
the reasons why the purchase was required to be made immediately,
shall be filed by the Purchasing Agent with the Director of Finance.
[Amended 11-10-1992 by Ord. No. 92-403]
B. By heads of using agencies. In the case of a public emergency requiring immediate action, and with the consent of the Purchasing Agent and with the approval of the Mayor, the head of any using agency may purchase directly any supplies whose immediate procurement is essential to protect the life, health, safety or property of the inhabitants of the City. The Purchasing Agent shall prescribe by rules and regulations the procedure under which emergency purchases by heads of using agencies may be made. The head of such using agency shall send to the Purchasing Agent a requisition and a copy of the delivery record together with a full written report of the circumstances of the emergency, which report shall conform to the requirements of and shall be filed in the manner provided in Subsection
A of this section.
[Amended 4-22-1975 by Ord. No. 75-139; 11-12-1985 by Ord. No. 85-480; 1-19-2016 by Ord. No. 2016-6]
A. The Mayor shall have the authority to join with other units of government
in cooperative purchasing plans when the best interests of the City
would be served thereby.
B. The Purchasing Agent shall have the authority to purchase apparatus,
materials, equipment or supplies, or to contract for services related
to the installation, maintenance or repair of apparatus, materials,
equipment or supplies, through the use of a contract let by the United
States of America or any agency thereof, any state or other political
subdivision or district therein in accordance with the requirements
of § 103 of the General Municipal Law of the State of New
York, when the best interest of the City would be served thereby.
The Purchasing Agent may exercise this authority for purchases subject
to the formal contract procedure and for purchases and sales subject
to the open market procedure.
In acquiring personal property, the Purchasing
Agent may exchange or sell similar items with the approval of the
head of the using agency in which said items may be located, and may
apply the exchange allowance or proceeds of sale in such cases in
whole or in part payment for the property acquired, provided that
any transaction carried out under the authority of this section shall
be evidenced in writing.
[Added 1-16-2001 by Ord. No. No. 2001-36]
A. Title and purpose. This section shall be known as
the "Rochester Living Wage Ordinance." The purpose of this section
is to ensure that employees of substantial City contractors and subcontractors
earn an hourly wage that is sufficient for a family to live at or
above the federal poverty guideline.
B. Definitions. The following definitions shall apply
throughout this section:
BUSINESS ASSISTANCE
Any grant or loan of at least $50,000 realized by or through
the authority or approval of the City, excluding welfare-to-work,
job training or youth employment programs.
CASUAL EMPLOYEE
An occasional employee without regular or set hours, or an
employee regularly working fewer than 20 hours a week.
CITY
The City of Rochester.
CONTRACTOR
Any person who enters into a service contract with the City,
except other governmental units.
COVERED EMPLOYEE
A person employed either part-time or full-time by the covered
employer who directly expends his or her time on a service contract
with the City, for the time said person actually spends on the service
contract, or a person employed either part-time or full-time by a
business assistance beneficiary at a workplace which has received
business assistance from the City; provided, however, that persons
who are employed in construction work covered pursuant to federal
or state prevailing wage laws shall be exempt from this section, as
shall participants in welfare-to-work, job training or youth employment
programs, and workers with disabilities, full-time students, messengers,
learners, student-learners and apprentices for whom the covered employer
has received a certificate to pay special minimum wages pursuant to
Section 14 of the Federal Fair Labor Standards Act (FLSA) (29 U.S.C.
§ 214). "Covered employee" shall not include a casual employee
or seasonal employee.
COVERED EMPLOYER
Any person who is a contractor or subcontractor directly
involved in providing a service to the City pursuant to a service
contract as defined herein.
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, trust, unincorporated
organizations, trustees in bankruptcy, receivers, fiduciaries and
all other entities recognized at law by the City.
SEASONAL EMPLOYEE
An employee hired temporarily for a period not to exceed
90 days at any given time within a six-month period.
SERVICE CONTRACT
A contract awarded to a contractor by the City primarily
for furnishing services to or for the City (excluding the purchase
of goods or other property, the leasing of property or the development,
redevelopment or rehabilitation of real property) and that involves
an expenditure by the City to the contractor of at least $50,000,
or the retention by the contractor of fees of at least $50,000, during
a period of one year. Said threshold of $50,000 shall not include
funds provided by the City to be passed through to eligible participants
in federal- or state-funded programs. For the purposes of this section
"service contract" shall not include any contract awarded through
competitive bidding pursuant to General Municipal Law § 103.
"Service contract" shall include unit price contracts that are designated
by the City, where, based on experience or expected level of work,
the City anticipates an expenditure to the contractor of at least
$50,000 during a period of one year. "Service contract" shall not
include separate contracts in amounts of less than $50,000 with the
same contractor for different services which may involve a total expenditure
by the City to the contractor of more than $50,000 during a period
of one year. However, contracts may not be segmented to fall under
the threshold, and multiple contracts with the same contractor for
the same services shall be aggregated to determine the total expenditure
for purposes of application of this section. Where an amendatory agreement
or additional agreement with the same contractor causes the total
expenditure to exceed $50,000 during a period of one year, this section
shall apply to the amendatory agreement or additional agreement.
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, including any temporary employment agency that enters
into a contract with a contractor or business assistance beneficiary
to provide employees to assist the primary contractor in performing
a service contract or to perform services for a business assistance
beneficiary at a workplace which has received business assistance
from the City.
C. Living wage.
(1) Applicability. Covered employers and business assistance
beneficiaries shall pay no less than a living wage to their covered
employees, which, for covered employees working on a service contract,
shall be for the time directly expended on the service contract.
(2) Amount of wage. The living wage shall be calculated
on an hourly basis as paying $8.52 to covered employees who are offered
health insurance benefits by the covered employer or business assistance
beneficiary and $9.52 to covered employees who are not offered health
insurance benefits by the covered employer or business assistance
beneficiary.
(3) Revision process. This section shall be reviewed and
evaluated two years after adoption in order to evaluate the effectiveness
of the legislation in terms of its policy goals, and monitoring and
enforcement procedures. The amount of the living wage shall be increased
annually to reflect inflation as captured by the unadjusted consumer
price index for all urban consumers (CPI-U), United States city average,
as published by the Bureau of Labor statistics of the United States
Department of Labor. The first indexing adjustment shall occur July
1, 2002, in proportion to the increase of the United States city average
of the CPI-U at the immediately preceding April 30 over the year earlier
April 30, and shall be adjusted every July 1 thereafter.
(4) No reduction in wage rates or hours. Nothing in this
section shall require or authorize any covered employer or business
assistance beneficiary to reduce wages or work hours of any covered
employee, and a covered employer or business assistance beneficiary
shall not reduce wages or work hours as a result of coverage by this
section, and this section shall not be construed so as to reduce wages
required under any prevailing wage law.
(5) Notifying employees of their potential right to the
federal earned income credit. Covered employers and business assistance
beneficiaries shall inform employees making less than $12 per hour
of their possible right to the Federal Earned Income Credit (EIC)
under section 32 of the Internal Revenue Code of 1954, 26 U.S.C. § 32,
and shall make available to employees information about the EIC and
how to obtain forms required to secure advance EIC payments from the
employer.
(6) Tipped employees. Covered employers who elect to receive
credit for tips received by covered employees in accordance with the
provisions of the FLSA may also include as wages under this section
an additional amount on account of tips received by a covered employee,
provided that the tip amount is at least equal to the difference between
the wages paid the covered employee and the living wage. The additional
amount on account of tips may not exceed the value of the tips actually
received by the covered employee. This subsection shall not apply
to any covered employee unless such employee has been informed by
the covered employer that his or her direct wages shall be less than
the living wage, provided that the amount of tips plus direct wages
received by such employee at least equals the living wage, and provided
that all tips received by such employee have been retained by the
employee. This subsection shall not be construed to prohibit the pooling
of tips among employees who customarily and regularly receive tips.
If a covered employee's tips combined with the covered employer's
direct wages do not equal the living wage, the covered employer must
make up the difference. It is the responsibility of the covered employer
to prove, upon request by the City, the payment of at least a living
wage in combined direct wages and tips to the covered employee. FLSA
requirements shall be applied to determine eligibility for including
tips as wages and calculating the total amount of wages and tips.
D. Employer responsibility, compliance and sanctions.
(1) Application for contract or business assistance. Every
proposal or application for a service contract or business assistance
shall include a written commitment by the applicant to pay all covered
employees a living wage as defined by this section and shall include
a list of job titles and wage levels of all covered employees in each
of the years for which the contract or business assistance is sought.
(2) Reports from covered employers and business assistance
beneficiaries. Covered employers and business assistance beneficiaries
shall provide to the City publicly available annual reports of job
titles and wage rates of covered employees during the term of the
service contract or business assistance. For service contracts or
business assistance of less than one year, covered employers and business
assistance beneficiaries shall provide such reports at the beginning
and end of the contract or business assistance.
(3) Compliance, enforcement and sanctions.
(a)
Covered employer and business assistance beneficiary
cooperation. The covered employer or business assistance beneficiary
shall permit representatives from the City to observe the work being
performed at its place of work; furthermore, the covered employer
or the business assistance beneficiary shall permit said representatives
to interview employees and to examine its books and records relating
to employment and payroll to determine if the covered employer or
the business assistance beneficiary is in compliance with the provisions
of this section. Covered employers and business assistance beneficiaries
shall maintain for a period of at least three years all necessary
records to document the wages paid to each covered employee, and the
time expended by each covered employee on a service contract.
(b)
Posting. Every covered employer and business
assistance beneficiary shall post and keep in conspicuous places on
their premises, where notices to employees and applicants for employment
are customarily posted, a notice supplied by the City informing employees
of their rights under this section. Included in this posting shall
be a phone number at the City that covered employees may call to lodge
complaints. If the covered employer or subcontractor is a temporary
employment agency, this notice shall be mailed to all covered employees
before or in conjunction with the receipt of the covered employees'
first paycheck.
(c)
Grievance procedure. A covered employee who
believes that his or her employer is not complying with requirements
of this section has the right to file a complaint with the City. Complaints
by covered employees of alleged violations shall be made within one
year of the date of the violation and shall be investigated promptly
by the City. Written and oral statements made by a covered employee
shall be treated as confidential and shall not be disclosed to the
covered employer or business assistance beneficiary without the consent
of the employee. While protection of the employee's confidentiality
shall be a priority for the City, this provision shall not prevent
the City from informing the covered employer of the name of the covered
employee and the basis of the complaint in order to access information
necessary to investigate the complaint.
(d)
Duties of the City.
[1]
It shall be the responsibility of the City to
create guidelines for investigating and handling grievances under
this section; to examine the pay rolls, as necessary, to determine
compliance and cause investigations to be made, as necessary, to monitor
compliance with the provisions of this section.
[2]
The City shall promptly investigate complaints
alleging noncompliance by covered employers and business assistance
beneficiaries. The contracting agency may, in accordance with the
powers herein granted, require the production by the employer of such
evidence as required to determine compliance.
(e)
Covered employer or business assistance beneficiary
may dispute finding of noncompliance. A covered employer or business
assistance beneficiary may dispute a finding of noncompliance by requesting
a hearing with a representative of the City. A covered employer or
business assistance beneficiary must request such a hearing within
60 days after receiving notice of a finding of noncompliance.
(f)
Sanctions. A covered employer or business assistance
beneficiary found to be in violation of any provision in this section
shall be sanctioned as follows:
[1]
The City shall withhold payment of so much of
any amount due in business assistance or on a service contract or
on any other contract in effect with the same covered employer or
business assistance beneficiary which is equal to the alleged underpayment
to a covered employee, order wage restitution for each affected employee
and serve a written notice of violation on the covered employer or
business assistance beneficiary.
[2]
For willful or repeated violations, the City
shall additionally impose a fine not to exceed $100 per day on the
covered employer or business assistance beneficiary for each employee
found to be paid less than the living wage, and may order the covered
employer or business assistance beneficiary to repay business assistance
awarded by the City and any amounts paid on service contracts for
services not yet rendered terminate ongoing service contracts or business
assistance and declare the covered employer or business assistance
beneficiary ineligible for further City service contracts or business
assistance for three years, after which time the covered employer
or business assistance beneficiary may be eligible for reinstatement
if all underpayments and fines are paid.
[3]
All sanctions will be a matter of public record.
(g)
Retaliation and discrimination barred. A covered
employer or business assistance beneficiary shall not discharge, reduce
compensation or otherwise discriminate against any employee because
that employee made a complaint or otherwise asserted his or her rights
under this section, or participated in any of its proceedings. The
contracting agency shall investigate allegations of retaliation or
discrimination and shall, if found to be true, after notice and hearing,
order appropriate relief, including restitution and reinstatement
of the discharged employee with back pay to the date of the violation.
(h)
Enforcement. The City or any person aggrieved
by a violation of this section may bring an action in any court of
competent jurisdiction, and in the event that the City or aggrieved
person prevails in such action, the court may award damages and reasonable
costs and attorney fees, and if said action is brought by an individual
for underpayment of wages, the court shall also award said individual
an additional amount as liquidated damages equal to 25% of the wages
found to be due.
E. Exemptions.
(1) Service contracts and business assistance in existence
prior to the effective date of this section shall be exempt from this
section, except that any amendment or modification of such service
contracts and business assistance occurring on or after the effective
date of this section shall be subject to the conditions specified
in this section.
(2) Welfare-to-work, youth employment programs and job
training programs shall be exempt from this section as they relate
to the pay scale of participating youth workers aged 21 or younger,
or to participants in a bona fide job-training program or welfare-to-work
program.
(3) This section shall not apply to covered employees
compensated in accordance with the terms of a collective bargaining
agreement.
F. Severability. In the event that any provision of this
section shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable
any other provisions hereof.