[HISTORY: Adopted by the Rochester City Council
8-8-1972 by Ord. 72-423. Amendments noted where applicable.]
[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.
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]
The City of Rochester, New York.
The Council of the City of Rochester.
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.
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.
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.
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.
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.
Includes any individual, association, partnership, corporation,
firm, trust, estate or other entity.
The designated purchasing agent of the City of Rochester.
All supplies, materials and equipment and other personal
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.
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.
A.
The Purchasing Agent shall have the powers and duties
prescribed by law, by this chapter and by any rules or regulations
as may be prescribed by the Mayor.
[Amended 11-12-1985 by Ord. No. 85-480; 11-10-1987 by Ord. No. 87-368]
B.
Scope of purchasing authority. The Purchasing Agent
shall have the power and it shall be his or her duty to enter into
purchase rental and lease contracts for supplies and to enter into
contracts for public work and other contractual services, except professional
and other personal services which are in their nature unique and not
subject to competition, needed by any using agency in the City government
and to sell surplus property and other personal property owned by
the City.
[Amended 2-14-2006 by Ord. No. 2006-22]
C.
The Purchasing Agent shall assume charge and control
of, and be responsible for, the general conduct of the business of
his or her office and for the faithful discharge of the duties of
his or her deputy and other persons under his or her direct supervision
and control. Provided he or she remains so responsible, the Purchasing
Agent may designate persons under his or her direct supervision and
control to place orders for the purchase of supplies and contractual
services.
[Amended 2-14-2006 by Ord. No. 2006-22]
D.
Except as herein provided and except for persons under
the direct supervision and control of the Purchasing Agent, it shall
be unlawful for any City officer or employee or any using agency to
order the purchase of any supplies or make any contract within the
purview of this chapter other than through the Purchasing Agent. Any
purchase ordered or contract made contrary to the provisions hereof
shall not be approved by the City officials, and the City shall not
be bound thereby.
E.
Other powers and duties. In addition to the purchasing authority conferred in Subsection B of this section, and in addition to any other powers and duties conferred by this chapter, the Purchasing Agent shall:
(1)
Act to procure for the City the highest quality in
supplies and contractual services at the least expense or best value
to the City.
[Amended 1-19-2016 by Ord. No. 2016-6]
(2)
Seek to establish uniform specifications for the City where practical,
so that the City may obtain favorable quantity and volume pricing.
[Amended 1-19-2016 by Ord. No. 2016-6]
(3)
Discourage uniform bidding and endeavor to obtain full and open competition
on all purchases and sales.
[Amended 1-19-2016 by Ord. No. 2016-6]
(4)
Prescribe rules and regulations for the implementation of this chapter,
including policies and methods relating to procurement, storage and
use of goods and services.
(5)
Prescribe and maintain such forms as he or she shall
find reasonably necessary to the operation of this chapter.
[Amended 2-14-2006 by Ord. No. 2006-22]
(6)
Cooperate with the Department of Finance so as to
secure for the City the maximum efficiency in budgeting and accounting.
(7)
Maintain a list of bidders from which to seek bids for supplies,
products and services.
[Amended 1-19-2016 by Ord. No. 2016-6]
A.
The Purchasing Agent shall have the power to require
any using agency to file with him or her detailed estimates of its
requirements for supplies and contractual services in such manner,
at such times and for such future periods as he or she shall prescribe.
A using agency shall not be prevented from filing, in the same manner,
with the Purchasing Agent at any time a revised estimate for any supplies
and contractual services, the need for which was not foreseen when
the detailed estimates were filed.
[Amended 2-14-2006 by Ord. No. 2006-22]
B.
The Purchasing Agent shall examine each requisition
or estimate and shall have the authority to return it for revision
as to quantity, quality or estimated costs.
[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.
A.
Specifications.
(1)
Unless the City Council shall have stated a need for
standardization, all invitations for bid shall be based upon specifications
which are definite and certain and which shall permit competition.
(2)
All invitations for bid shall be approved by the head
of the using agency for which the contract is to be made or, for contracts
used by multiple city agencies, by one or more agency heads as requested
by the Purchasing Agent or designated by the Mayor.
[Amended 11-12-1985 by Ord. No. 85-480; 1-19-2016 by Ord. No.
2016-6]
B.
Advertisement
for bids.
[Amended 2-14-2006 by Ord. No. 2006-22; 1-19-2016 by Ord. No. 2016-6]
(1)
Advertisement for bids shall be published by the Purchasing Agent
in an official newspaper of the City in accordance with the requirements
of § 103 of the General Municipal Law of the State of New
York.
(2)
Bulletin board. The Purchasing Agent shall also publish all advertisements
for public bids by notices posted on a public bulletin board and on
the City's website.
C.
Bid security.
[Amended 2-14-2006 by Ord. No. 2006-22]
(1)
When deemed necessary by the Purchasing Agent, he
or she shall prescribe a bid security of a certified check, money,
bonds or other obligations as a condition precedent to the consideration
of a bid. Such bid security shall be set forth in the invitation for
bids. No bond shall be submitted to the City having as surety thereon,
either as coinsurer or as reinsurer, any surety company not authorized
to do business in the State of New York. All bid securities shall
be subject to approval by the City as to form and sufficiency of surety.
(2)
The Purchasing Agent, after the bids have been opened,
shall retain the bid security of the three lowest bidders, and may
in his or her discretion return the bid security of all other bidders.
The Purchasing Agent shall also retain the bid securities of the three
lowest bidders for 10 days following an award of a contract, notwithstanding
that such award shall be the first or any subsequent award. A bidder
may withdraw his or her bid security not less than 10 days after an
award of the contract within the time specified, or if no award of
the contract be made, within 45 days after the date of opening bids
therefor, whichever date is later, and upon such withdrawal his or
her bid security shall be forthwith returned. The Purchasing Agent
shall forthwith return all bid securities in the event all bids are
rejected, and he and she may return any bid security which a bidder
is entitled to withdraw.
(3)
A bidder shall forfeit any bid security required upon
failure on his or her part to execute a contract in a form approved
by the City and to furnish the required insurance and security within
10 days after the award, or within such other time as may be specified
in the invitation for bids. A bidder shall be deemed to have failed
to execute any contract upon failure on his or her part to provide
or make available any materials or documents required to be so made
by the invitation for bids or by law within 10 days after request
therefor by the City, or within such other time as may be specified
in the invitation for bids or by law.
D.
Bid
opening procedure. Sealed bids and sealed offers, as that term applies
to contracts, shall be submitted to the Purchasing Agent and shall
be publicly opened and read at the time and place stated in the advertisement
for bids. The Purchasing Agent is authorized to accept sealed bids
and sealed offers submitted in an electronic format pursuant to the
requirements of § 103 of the General Municipal Law of the
State of New York. A tabulation of all bids received shall be prepared
and made available for public inspection.
[Amended 1-19-2016 by Ord. No. 2016-6]
E.
Rejection
of bids. The Purchasing Agent is authorized to reject any or all bids
or parts of bids when the interests of the City will be served thereby.
[Amended 1-19-2016 by Ord. No. 2016-6]
F.
Bid modifications and mistakes.
(1)
Late modification. A late modification of the otherwise
successful bid shall be opened at any time it is received; and if
in the judgment of the Purchasing Agent it makes the terms of the
bid more favorable to the City, it shall be considered.
(2)
Minor informalities or irregularities in bids. The
Purchasing Agent shall either give a bidder an opportunity to cure
any deficiency resulting from a minor informality or irregularity
in a bid or waive such deficiency, whichever is to the advantage of
the City.
(3)
Mistakes in bids. Where a mistake in a bid is alleged
prior to award and where the bid, as submitted, is responsive to the
invitation for bids, the Purchasing Agent, with the approval of the
Corporation Counsel, may:
[Amended 2-14-2006 by Ord. No. 2006-22]
(a)
Determine that the bidder may withdraw his or her
bid where the bidder requests permission to do so and clear and convincing
evidence establishes the existence of a mistake; however, if the evidence
is clear and convincing both as to the existence of a mistake and
as to the bid actually intended, and if the bid, both as uncorrected
and corrected, is the one most favorable to the City, the Purchasing
Agent may correct the bid and not permit its withdrawal.
(b)
Determine that the bidder may correct his or her bid
where the bidder requests permission to do so and clear and convincing
evidence establishes both the existence of a mistake and the bid actually
intended, provided that such correction shall not be made where it
would result in displacing one or more bids, unless the existence
of the mistake and the bid actually intended are ascertainable substantially
from the invitation and the bid itself.
(4)
When a determination is made concerning an alleged
bid mistake, a full and complete statement of the reasons for making
the determination shall be prepared by or under the direction of the
Purchasing Agent, which statement shall be filed with the other papers
relating to the transaction.
(5)
Unless the Purchasing Agent determines, as provided
in this section, that a bid may be withdrawn or corrected, no plea
of mistake in a bid shall be available to the bidder for the recovery
of his or her bid security or as a defense to any action based upon
such bid, except with the approval of 3/4 of the City Council.
[Amended 2-14-2006 by Ord. No. 2006-22]
G.
Award of contract.
(1)
The Purchasing Agent is authorized to award and execute contracts
within the purview of this chapter with the lowest responsible bidder
whose proposal shall conform to the invitation for bids. The Purchasing
Agent is further authorized to award and execute purchase contracts
for supplies and contractual services (except for purchase contracts
necessary for the completion of public works pursuant to Article 8
of the Labor Law), on the basis of best value pursuant to the requirements
of § 103 of the General Municipal Law of the State of New
York.
[Amended 1-19-2016 by Ord. No. 2016-6]
(2)
Determination of responsibility and nonresponsibility.
No purchase shall be made from, and no contract shall be awarded to,
any bidder unless the Purchasing Agent first determines that the bidder
is responsible. The bidder shall demonstrate affirmatively responsibility,
including, when necessary, that of proposed subcontractors. Any failure
by a bidder to supply or to make available any materials or documents
required by the Purchasing Agent or by any other officers of the City
for the purpose of determining the bidder's responsibility shall subject
the bidder to forfeiture of any bid security. In determining the responsibility
of a bidder, the Purchasing Agent shall consider:
[Amended 11-10-1992 by Ord. No. 92-403; 5-11-1993 by Ord. No. 93-150]
(a)
The adequacy of the bidder's financial resources or
ability to obtain such resources. The Purchasing Agent may require
that any bidder submit verified statements as to financial responsibility
and experience, which statements shall be made on forms prescribed
by the Purchasing Agent. Supplemental statements may be required at
any time.
(b)
The ability of the bidder to comply with the required
or proposed delivery or performance schedule.
(c)
The record of performance of the bidder and any proposed
subcontractors on other contracts, and particularly on similar contracts
had with the City.
(d)
The record of integrity of the bidder.
(e)
The availability to the bidder of the necessary organization,
experience, operational controls and technical skills, and the necessary
production, construction and technical equipment and facilities required
for performance of the contract.
(f)
The compliance by the bidder with any special or general
standards of responsibility set forth in the invitation for bids.
(g)
The compliance by the bidder with any other standards
which may be established by the Purchasing Agent pursuant to rule
or regulation.
(h)
No bidder shall be determined to be responsible who
is in default on the payment of any taxes, licenses or other moneys
due the City, or who has defaulted within two years for any reason
on a contract had with the City.
(i)
The Purchasing Agent shall inform a bidder in writing
of a nonresponsibility determination and the reasons therefor.
(j)
Upon making a nonresponsibility determination, the
Purchasing Agent may bar the bidder and affiliated organizations,
as further set forth herein, from bidding on City contracts for a
period of not to exceed two years. If a corporation is found to be
a nonresponsible bidder, that finding may be applied to a parent,
affiliate or subsidiary corporation, if the Purchasing Agent finds
that an officer, director or person directly or indirectly controlling
10% or more of the stock of the corporation found to be nonresponsible
is an officer, director or person directly or indirectly controlling
10% or more of the stock of the parent, affiliate or subsidiary corporation.
If an unincorporated association is found to be nonresponsible, that
finding may be extended to other related associations upon a finding
by the Purchasing Agent that the related associations have substantially
the same ownership, management or operating personnel.
(3)
Guidelines for responsibility determinations for the
award of public works contracts and contracts for services.
(a)
In determining the responsibility of a bidder for a public works contract or a contract for services in excess of $50,000, or a contract for services that is not in a fixed amount if in either of the prior two years a substantially similar contract was in excess of $50,000, the Purchasing Agent shall consider the following items in addition to the requirements already established in Subsection G(2) above. In the case of a contract for services that is bid in two or more parts, this section shall apply if the combined total of all such parts exceeds $50,000:
[1]
Lack of adequate expertise, prior experience
with comparable projects or financial resources to perform the work
of the contract in a timely, competent and acceptable manner. Evidence
of such a lack of ability to perform may include, but shall not be
limited to, evidence of suspension or revocation for cause of any
professional license of any director or officer, or any holder of
5% or more of the bidder's stock or equity; failure to submit satisfactory
evidence of insurance, surety bonds or financial responsibility; the
status of bankruptcy petitions; suspension or debarment by state or
federal government; or a history of termination of prior contracts
for cause.
[2]
Criminal conduct in connection with government
contracts or business activities. Evidence of such conduct may include
a judgment of conviction or information obtained as a result of a
formal grant of immunity in connection with a criminal prosecution
of the bidder, any director or officer, or holder of 5% or more of
the shares or equity of the bidder or any affiliate of the bidder.
[3]
Violations of safety and/or training standards
as evidenced by a pattern of OSHA violations or the existence of willful
OSHA violations.
[4]
Willful noncompliance with the prevailing wage
and supplements payment requirements of the Labor Law by the bidder
or any affiliate of the bidder.
[5]
Any other significant Labor Law violations,
including but not limited to Child Labor Law violations, failure to
pay wages or unemployment insurance tax delinquencies.
[6]
Any significant violation of the Workers' Compensation
Law, including but not limited to the failure of a bidder to provide
proof of workers' compensation or disability benefits coverage.
[7]
Any criminal conduct involving violations of
the Environmental Conservation Law or other federal or state environmental
statutes, or repeated or significant civil violations of federal or
state environmental statutes or regulations.
[8]
Any criminal conviction concerning formation
of, or any business association with, an allegedly false or fraudulent
women's or minority business enterprise (W/MBE), or any denial, decertification,
revocation or forfeiture of W/MBE status by New York State.
[9]
Any other cause of so serious or compelling
a nature that it raises questions about the responsibility of a bidder,
including but not limited to submission to the City of a false or
misleading statement on a sworn statement of bidder qualifications,
or in some other form, in connection with a bid for or award of a
contract.
[10]
In addition to the factors specified above,
the Purchasing Agent may also give due consideration to any other
factors considered to bear upon bidder responsibility, including but
not limited to, any mitigating factors brought to the City's attention
by the bidder.
(b)
The Director of Finance shall develop rules and regulations
to implement these guidelines, including a sworn statement of bidder
qualifications to gather the information set forth above in the guidelines.
Said sworn statement shall be completed by the apparent low bidder
and the second low bidder on public works contracts in excess of $50,000.
The Purchasing Agent shall use the information contained in the response
to the sworn statement in making a determination of bidder responsibility
before awarding the contract.
[1]
Editor's Note: This ordinance also provided
for the renumbering of former Subsection G(3) through (5) as Subsection
G(4) through (6), respectively.
(4)
A nonresponsibility determination by the Purchasing
Agent may be appealed by the bidder to the Director of Finance by
delivery to the Director of Finance of a written notice of appeal
within 10 days after receipt of the determination of the Purchasing
Agent. The Director of Finance shall offer the bidder an opportunity
to be heard, at which the Director of Finance or the Director's designee
shall preside. Such hearing shall be scheduled as soon as possible
after a request. The bidder shall be permitted to be represented by
counsel, to submit evidence and summon witnesses on his or her behalf
and to inspect documents and cross-examine opposing witnesses. Compliance
with the technical rules of evidence shall not be required. The hearing
officer, if other than the Director of Finance, shall make a recommendation
to the Director of Finance. The Director of Finance shall make the
final determination in writing, based upon evidence produced at the
hearing. In the final determination, the Director of Finance may accept,
reject or modify the determination and penalty imposed by the Purchasing
Agent. The determination of the Director of Finance shall be subject
to review pursuant to Article 78 of the Civil Practice Law and Rules.
[Amended 11-12-1985 by Ord. No. 85-480; 11-10-1992 by Ord. No. 92-403; 5-11-1993 by Ord. No. 93-150]
(5)
Award to other than low bidder. When the award is
not given to the lowest bidder, a full and complete statement of the
reasons for placing the award elsewhere shall be prepared by or under
the direction of the Purchasing Agent, which statement shall be filed
with the other papers relating to the transaction.
[Amended 11-12-1985 by Ord. No. 85-480; 5-11-1993 by Ord. No. 93-150]
(6)
Tie bids. In cases where two or more responsible bidders
furnishing the required security submit identical bids as to price,
the Purchasing Agent may award the contract to any of such bidders.
H.
Prohibition against subdivision. No contract, purchase
or sale shall be subdivided to avoid the requirements of this section.
[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.
A.
Except as provided in Subsection B of this section, contracts negotiated on behalf of the City by the Purchasing Agent may be of any type which in the opinion of the Purchasing Agent will promote the best interests of the City. The Purchasing Agent shall determine that the method of contracting for a negotiated contract is likely to be less costly than other methods, that the prospective vendor is responsible, that the supplies or contractual services to be provided are of the kind and quality required by the City and that the price is fair and reasonable.
B.
The cost-plus-a-percentage-of-cost system of contracting
shall not be used, and in the case of a cost-plus-a-fixed-fee contract,
the fee shall not exceed 15% of the estimated cost of the contract,
exclusive of the fee, as determined by the Purchasing Agent at the
time of entering into such contract. The Purchasing Agent, or his
or her designate, shall have the right to inspect the plans and to
audit the books and records of any prime contractor or subcontractor
engaged in the performance of a cost or cost-plus-a-fixed-fee contract.
[Amended 2-14-2006 by Ord. No. 2006-22]
C.
All contracts negotiated pursuant to authority contained
in this section shall include a clause to the effect that the Purchasing
Agent or his or her duly authorized representative shall until the
expiration of three years after final payment have access to and the
right to examine any directly pertinent books, documents, papers and
records of the contractor or any of his or her subcontractors engaged
in the performance of and involving transactions related to such contracts
or subcontracts. Such clause may be omitted from contracts where the
Purchasing Agent determines, after taking into account the price and
availability of the property of services from other sources, that
the public interest would be best served by the omission of such clause.
[Amended 2-14-2006 by Ord. No. 2006-22]
A.
The Purchasing Agent shall have the authority to require
on any and all contracts a performance bond for the faithful performance
of the contract and a payment bond for the protection of all persons
supplying labor and material in the prosecution of the work provided
in the contract in such amounts as he or she shall find reasonably
necessary to protect the best interests of the City. The Purchasing
Agent shall require such performance and payment bonds having a penal
sum at least equal to 50% of the total amount payable by the terms
of the contract on all contracts for contractual services involving
an expenditure of $100,000 or more. The Purchasing Agent may require
such performance or payment bonds at any time, notwithstanding that
the invitation for bids shall not specifically require performance
or payment bonds.
[Amended 8-11-1992 by Ord. No. 92-325; 7-12-1994 by Ord. No. 94-214; 2-14-2006 by Ord. No. 2006-22]
B.
The Purchasing Agent or the Director of Finance may
require additional performance or payment bond protection in the event
that a modification or aggregate of modifications to a contract may
be expected to increase the contract price by $50,000 or 25% of the
basic contract price, whichever is less, or if a modification is for
new or additional work which is beyond the scope of the existing contract.
[Amended 8-11-1992 by Ord. No. 92-325]
C.
Notwithstanding the provisions of Subsection A of this section, where the contract is not for the construction, alteration or repair of any public building or other public work, the Purchasing Agent, with the approval of the Director of Finance, may defer the filing and execution of a performance or payment bond, provided that at least 50% of the contract price shall be withheld until acceptance of the work under the contract, and provided further that the bid security shall be retained in lieu of all or any part of the performance and payment security. Upon completion and acceptance of such work, the Purchasing Agent may waive the execution and filing of the performance or payment bond.
[Amended 8-11-1992 by Ord. No. 92-325]
D.
All bonds submitted pursuant to this section shall
be subject to approval by the City as to form and sufficiency of surety.
No bond shall be submitted to the City having as surety thereon, either
as coinsurer or as reinsurer, any surety company not authorized to
do business in the State of New York.
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.
A.
The Purchasing Agent shall inspect or supervise the
inspection of all deliveries of supplies or contractual services to
determine their conformance with the specifications set forth in the
order or contract.
B.
The Purchasing Agent may authorize using agencies
having the staff and facilities for adequate inspection to inspect
all deliveries made to such using agencies under such rules and regulations
as the Purchasing Agent may prescribe.
C.
The Purchasing Agent is authorized in his or her discretion
to require chemical, physical or other tests of samples submitted
with bids and samples of deliveries to determine their quality and
conformance with the specifications. In the performance of such tests,
the Purchasing Agent shall have the authority to make use of the laboratory
and other testing facilities of any agency of the City government
and of any outside laboratory.
[Amended 2-14-2006 by Ord. No. 2006-22]
[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.
A.
Reports. All using agencies shall submit to the Purchasing
Agent at such times and in such form as he or she shall prescribe
reports showing all excess property with a reportable value of $5,000
or more that is under the control of such using agency.
[Amended 2-14-2006 by Ord. No. 2006-22; 1-19-2016 by Ord. No. 2016-6]
B.
The Purchasing Agent is authorized to transfer excess
property to other using agencies.
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.
A.
The Purchasing Agent shall have supervision and direction
over the disposition of surplus property. The Purchasing Agent is
authorized to dispose of surplus property by sale, exchange, lease,
permit or transfer, for cash, credit or other property, with or without
warranty, and upon such other terms and conditions as the Purchasing
Agent deems proper, and he or she may execute such documents for the
transfer of title or other interest in property and take such other
action as he or she deems necessary or proper to dispose of such property
under the provisions of this chapter. Any transaction carried out
under the authority of this section shall be evidenced in writing.
The Purchasing Agent shall not dispose of any surplus property unless
such property has been designated as excess property by the head of
the using agency in which such property is located; nor shall the
Purchasing Agent dispose of any individual item of surplus property,
other than as an exchange of surplus property included in a bid obtained
through the formal contract procedure, having an estimated value exceeding
$10,000, unless the Mayor shall have authorized the disposition of
such property.
[Amended 11-12-1985 by Ord. No. 85-480; 2-14-2006 by Ord. No. 2006-22; 1-19-2016 by Ord. No. 2016-6]
B.
A deed, bill of sale, lease or other instrument executed
by the Purchasing Agent purporting to transfer title or any other
interest in surplus property under this chapter shall be conclusive
evidence of compliance with the provisions of this chapter insofar
as concerns title or other interest of any bona fide grantee or transferee
for value and without notice of lack of such compliance.
C.
The care and handling of surplus property pending
its disposition may be performed by the Purchasing Agent or, when
so determined by the Purchasing Agent, by the using agency in possession
thereof or by any other using agency consenting thereto.
D.
All disposals or contracts for disposals of surplus property shall be made by the Purchasing Agent using auctioneer services authorized as professional services agreements, or by soliciting competitive bids in conformance with the formal contract procedure for surplus property having an estimated value exceeding $10,000 or the open market procedure for surplus property having an estimated value of $10,000 or less, except as provided in Subsection E of this section.
[Amended 1-19-2016 by Ord. No. 2016-6]
E.
Disposals and contracts for disposal may be negotiated,
but subject to obtaining such competition as is feasible under the
circumstances, if:
(1)
The public health, safety or welfare requires a particular
disposal of personal property;
(2)
Public exigency will not admit of the delay incident
to advertising certain personal property;
(3)
Bid prices after advertising therefor are not reasonable,
either as to all or some part of the property, or have not been independently
arrived at in open competition;
(4)
The personal property involved is exchanged or sold
for similar items pursuant to this Purchasing Chapter;
(5)
The personal property involved is abandoned, destroyed
or donated, provided that the approval of the Mayor shall be obtained
for any donation; or
[Amended 11-12-1985 by Ord. No. 85-480]
(6)
Otherwise authorized by this chapter or other law,
including the Charter or Code of the City.
F.
Personal property and movable fixtures and equipment
purchased by the City or contractors and subcontractors of the City
with funds received by the City from the federal government pursuant
to federal grants or programs, title to which property or fixtures
and equipment either has remained with the City or reverts to the
City upon termination of the grant, program or contract, may be deemed
excess and surplus property and shall be disposed of as set forth
in this chapter. Prior to disposition as surplus, the Purchasing Agent
shall obtain the legal opinion of the Corporation Counsel regarding
title.
[Added 11-25-1975 by Ord. No. 75-465; amended 11-12-1985 by Ord. No. 85-480; 1-19-2016 by Ord. No. 2016-6]
[Added 1-16-2001 by Ord. No. No. 2001-36[1]]
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.
BUSINESS ASSISTANCE
BUSINESS ASSISTANCE BENEFICIARY
CASUAL EMPLOYEE
CITY
CONTRACTOR
COVERED EMPLOYEE
COVERED EMPLOYER
PERSON
SEASONAL EMPLOYEE
SERVICE CONTRACT
SUBCONTRACTOR
Definitions. The following definitions shall apply
throughout this section:
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.
Any direct recipient of at least $50,000 of business assistance.
An occasional employee without regular or set hours, or an
employee regularly working fewer than 20 hours a week.
The City of Rochester.
Any person who enters into a service contract with the City,
except other governmental units.
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.
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.
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.
An employee hired temporarily for a period not to exceed
90 days at any given time within a six-month period.
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.
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.
[1]
Editor's Note: This ordinance provided that
the provisions of this chapter that relate to Business Assistance
and Business Assistance Beneficiaries shall take effect upon enactment
of substantially similar legislation by Monroe County as determined
by the Mayor; all other provisions of this ordinance shall take effect
on July 1, 2001.
