[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.