Section 6-101
§ 6-101 Contracts; certificate of comptroller. a. Any contract, except
as otherwise provided in this section, shall not be binding or of any
force, unless the comptroller shall indorse thereon the comptroller's
certificate that there remains unexpended and unapplied a balance of the
appropriation or fund applicable thereto, sufficient to pay the
estimated expense of executing such contract, as certified by the
officer making the same.
b. In contracts for the purchase of food supplies, forage, fuel,
printing, stationery, books and other supplies required for daily or
continuous use, or of supplies, materials and equipment needed for use
immediately after the beginning of the next succeeding fiscal year, to
be delivered within a period of one year from the date thereof, the
comptroller shall indorse thereon the comptroller's certificate that
there remains unexpended and unapplied a balance of the appropriation or
fund applicable thereto, sufficient to pay the estimated expense of
executing such contract in so far as the same is to be executed during
the current fiscal year, as certified by the officer making the same.
Upon the first of the following fiscal year the comptroller shall
certify by indorsement upon such contract as to the portion of such
contract then unexecuted, and such certification by the comptroller
shall make any such contract binding and of full force.
c. It shall be the duty of the comptroller to make such indorsement
upon every contract so presented to him or her, if there remains
unapplied and unexpended the amount so specified by the officer making
the contract, and thereafter to hold and retain such sum to pay the
expense incurred until such contract shall be fully performed. Such
indorsement shall be sufficient evidence of such appropriation or fund
in any action.
d. The provisions of this section shall not apply to supplies,
materials and equipment purchased directly by any agency pursuant to
subdivisions (c) and (d) of section three hundred forty-four of the
charter.
Section 6-102
§ 6-102 Performance of contracts. a. Each agency shall require and
enforce the faithful performance of every contract made by it.
b. If the contractor or contractors shall fail in any respect to
fulfill the contract within the time limited for its performance, then
the agency in charge thereof shall complete the same in the manner
provided for in the contract. The cost of such completion shall be a
charge against such delinquent contractor or contractors.
c. If any work shall be abandoned by any contractor, the appropriate
agency, if the best interest of the city be thereby served, and subject
to the approval of the board of estimate, may adopt all subcontracts
made by such contractor for such work. All subcontractors shall be bound
by such adoption. The agency shall readvertise and relet the work
specified in the original contract, exclusive of so much thereof as
shall be provided for in the subcontracts so adopted.
Section 6-103
§ 6-103 Extension of time for performance. The board of estimate, by a
unanimous vote, may extend the time for the performance of any contract.
Section 6-104
§ 6-104 Release from fines. a. It shall be unlawful for the
comptroller to release any contractor from any fine or penalty incurred
under a contract, except upon the unanimous recommendation of the board
of estimate.
b. The board of estimate may, by resolution, authorize the comptroller
to dispose of such cases without reference to or further action by the
board where the sum released does not exceed five hundred dollars.
Section 6-105
§ 6-105 Vouchers. The comptroller shall issue warrants for work done
or supplies furnished only upon proper vouchers rendered by the head of
the appropriate agency.
Section 6-106
§ 6-106 Certificate of completion. Within five days after his or her
acceptance of any work under contract, the head of an agency shall file
with the comptroller a final certificate of the completion and
acceptance thereof, signed by the chief engineer or head of such agency.
The filing of such certificate shall be presumptive evidence that such
work has been completed according to contract.
Section 6-107
§ 6-107 Warrants upon vouchers. a. All warrants upon vouchers for
payment of amounts due under contracts, duly audited and approved, shall
refer by number or other description to the voucher, the fund and the
contract upon which the payment is to be made. All checks issued by the
commissioner of finance on warrants duly approved and executed pursuant
to law, as payments on contracts, may be mailed or delivered to the
contractor or the contractor's authorized representative.
b. The indorsement by the contractor upon a check attached to such a
warrant, which has been paid by the bank or depository upon which the
same has been drawn, shall be considered as a receipt for the amount of
such check.
Section 6-107.1
§ 6-107.1 Payments to city contractors to be made by electronic funds
transfer.
a. Definitions. For purposes of this section:
(1) "Contract" means any written agreement, purchase order or
instrument whereby the city is committed to expend or does expend funds
in an amount greater than twenty-five thousand dollars in return for
work, labor, services, supplies, equipment, materials, or any
combination of the foregoing;
(2) "Contractor" means any business, individual, partnership,
corporation, firm, company, or other form of doing business to which a
contract has been awarded; and
(3) "Electronic funds transfer" means any transfer of funds, other
than a transaction originated by check, draft or similar paper
instrument, which is initiated through an electronic terminal,
telephonic instrument or computer or magnetic tape so as to order,
instruct or authorize a financial institution to debit or credit an
account.
b. Notwithstanding any other provision of law, except as otherwise
provided in this section all payments made by the city of New York to
any contractor of the city shall be paid by electronic funds transfer.
c. Each contractor shall, prior to the first payment made under a
contract to which this law applies, designate one financial institution
or other authorized payment agent and provide the commissioner of
finance information necessary for the contractor to receive electronic
funds transfer payments through the financial institution or other
authorized payment agent so designated.
d. (1) The commissioner of finance and the comptroller may jointly
issue standards pursuant to which contracting agencies may waive the
application of this section to payments: (i) for individuals or classes
of individuals for whom compliance imposes a hardship; (ii) for
classifications or types of checks; or (iii) in other circumstances as
may be necessary in the interest of the city.
(2) In addition, an agency head may waive the application of this
section to payments on contracts entered into pursuant to section three
hundred fifteen of the city charter and any rules promulgated
thereunder.
e. The crediting of the amount of a payment to the appropriate account
on the books of a financial institution or other authorized payment
agent designated by a contractor under this section shall constitute
full satisfaction by the city of New York for the amount of the payment.
f. The department of finance shall assure the confidentiality of
information supplied by contractors in effecting electronic funds
transfers to the full extent provided by law.
g. This section shall apply to any payments made by the city of New
York on contracts entered into on or after January first, two thousand
eight to a contractor of the city. Further, this section shall apply to
any payments made by the city of New York on contracts entered into
prior to January first, two thousand eight, provided that where a
contractor refuses to supply some portion of the required information
necessary to effect payment by electronic funds transfer, the agency
head may waive the application of this section where the need for the
goods, services or construction is such that it is in the interest of
the city to exempt the contractor from the requirements of this section.
Section 6-108
§ 6-108 Discrimination in employment. a. It shall be unlawful for any
person engaged in the construction, alteration or repair of buildings or
engaged in the construction or repair of streets or highways pursuant to
a contract with the city, or engaged in the manufacture, sale or
distribution of materials, equipment or supplies pursuant to a contract
with the city to refuse to employ or to refuse to continue in any
employment any person on account of the race, color or creed of such
person.
b. It shall be unlawful for any person or any servant, agent or
employee of any person described in subdivision a to ask, indicate or
transmit, orally or in writing, directly or indirectly, the race, color
or creed or religious affiliation of any person employed or seeking
employment from such person, firm or corporation.
c. The wording of subdivisions a and b of this section shall appear on
all contracts entered into by the city, and disobedience thereto shall
be deemed a violation of a material provision of the contract.
d. Any person, or the employee, manager or owner of or officer of a
firm or corporation who shall violate any of the provisions of this
section shall, upon conviction thereof, be punished by a fine of not
more than one hundred dollars or by imprisonment for not more than
thirty days, or both.
Section 6-108.1
§ 6-108.1 Locally based enterprises. a. Definitions. As used in this
section, the following terms have the following meanings:
(1) "Contract" means any written agreement whereby the city is
committed to expend or does expend funds in connection with any
construction project, except the term "contract" shall not include:
(a) contracts for financial or other assistance between the city and a
government or government agency; or
(b) contracts, resolutions, indentures, declarations of trust, or
other instruments authorizing or relating to the authorization,
issuance, award, and sale of bonds, certificates of indebtedness, notes,
or other fiscal obligations of the city, or consisting thereof; or
(c) any other types of contracts, to be designated in rules and
regulations, to which the mayor determines that application of the
provisions of this section is inappropriate.
(2) "Contracting agency" means a city, county, borough, or other
office, position, administration, department, division, bureau, board or
commission, or a corporation, institution or agency of government, the
expenses of which are paid in whole or in part from the city treasury.
(3) "Construction project" means any construction, reconstruction,
rehabilitation, alteration, conversion, extension, improvement, repair
or demolition of real property contracted by a contracting agency.
(4) "Economic development area" means an area of the city designated
as eligible for participation in the community development block grant
program of the United States department of housing and urban development
and any other area designated by the mayor by the adoption of a rule or
regulation, after consultation with the council, upon a determination
that such area has a special need for development of business and jobs
in construction.
(5) "Economically disadvantaged person" means a person who, at the
time of hiring by a locally based enterprise if such hiring occurred not
more than three tax years prior to the time of such business's
application for certification, or at the time of such application, is:
(a) a resident in a single person household who receives (i) wages not
in excess of seventy percent of the lower-level "urban family budget"
for the city as determined by the United States department of labor
bureau of labor statistics; or (ii) cash welfare payments under a
federal, state or local welfare program; or
(b) a member of a family which (i) has a family income less than
seventy percent of the lower-level "urban family budget" for the city as
determined by the United States department of labor, bureau of labor
statistics, or (ii) receives cash welfare payments under a federal,
state or local welfare program; or
(c) a Vietnam era veteran as defined by applicable federal law who has
been unable to obtain non-government subsidized employment since
discharge from the armed services; or
(d) a displaced homemaker who has not been in the labor force for five
years but has during those years worked in the home providing unpaid
services for family members and was (i) dependent on public assistance
or the income of another family member but is no longer supported by
that income, or (ii) receiving public assistance for dependent children
in the home and that assistance will soon be terminated.
(6) "Locally based enterprise" means a business which:
(a) at the time of application for certification has received gross
receipts in the last three tax years averaging no more than six hundred
twenty-five thousand dollars or such higher amount as may have been
established by regulation for the relevant category of locally based
enterprise pursuant to subdivision g of this section; and
(b) in the tax year preceding such application, has
(i) earned at least twenty-five percent of its gross receipts from
work performed in economic development areas, or
(ii) employed a workforce of which at least twenty-five percent were
economically disadvantaged persons.
(7) "Mayor" means the mayor of the city of New York or the mayor's
designee.
(8) "Graduate locally based enterprise" means a business which has
been certified as a locally based enterprise and is not qualified for
renewal of such certification because, during the three-year period
immediately preceding its application for certification as a graduate
locally based enterprise, its gross receipts averaged more than the
amount established pursuant to subparagraph a of paragraph six of this
subdivision, but not more than one million five hundred thousand dollars
or such higher amount as may have been established by regulation for the
relevant category of graduate locally based enterprise pursuant to
subdivision g of this section.
b. Each contracting agency shall, consistent with the requirements of
applicable city, state and federal law, including applicable competitive
bidding requirements, seek to ensure that not less than ten percent of
the total dollar amount of all contracts awarded for construction
projects during each fiscal year shall be awarded to locally based
enterprises or graduate locally based enterprises.
c. Each contracting agency shall, consistent with the requirements of
applicable city, state and federal law, include in every contract to
which it becomes a party such terms and conditions as may be required by
regulation promulgated pursuant to this section to provide that if any
or all of the contract is subcontracted, not less than ten percent of
the total dollar amount of the contract shall be awarded to locally
based enterprises or graduate locally based enterprises; except that,
where an amount less than such percentage is subcontracted, such lesser
percentage shall be so awarded.
d. Consistent with the rules and regulations of the board of estimate,
a full or partial waiver of performance and completion bonds may, with
the approval of the corporation counsel, be granted by a contracting
agency where such bonds are not deemed in the best interests of the
city. Contractors shall not require performance and payment bonds from
subcontractors which are locally based enterprises and graduate locally
based enterprises.
e. The contracting agency may grant a full or partial waiver of the
requirements of this section upon a finding that an emergency exists, or
that no qualified locally based enterprise or graduate locally based
enterprise is available to perform a subcontract on reasonable terms, or
for other good cause. Any such finding shall be made in writing and
shall set forth the reasons therefor. No waiver shall be granted without
the approval of the mayor and timely written notification of such waiver
to the council.
f. (1) The mayor shall establish a procedure for the certification of
businesses which meet the requirements of this section and regulations
promulgated hereunder as locally based enterprises or graduate locally
based enterprises. Such procedure may provide for a business to be
certified as a graduate locally based enterprise for a period not to
exceed two years, to commence immediately after the expiration of its
certification as a locally based enterprise. A business which has been
in existence for less than one year prior to the date of application for
certification, and which would otherwise qualify as a locally based
enterprise except that it does not meet the criteria set forth in
subparagraph (b) of paragraph six of subdivision a of this section, may
nevertheless be certified as a locally based enterprise, provided
however that such certification shall be rescinded unless the business
meets the criteria set forth in such subparagraph within one year from
the date of its certification. The mayor shall maintain a list of
certified locally based enterprises and graduate locally based
enterprises for each borough which identifies the companies which have
performed work in such borough to qualify as a locally based enterprise
or a graduate locally based enterprise. The contracting agency shall
provide to contractors for their consideration the appropriate list of
certified locally based enterprises and graduate locally based
enterprises for the borough in which the construction contract on which
they are bidding is located.
(2) The mayor may rescind the certification of a locally based
enterprise or graduate locally based enterprise after providing notice
and an opportunity to be heard to the business upon a finding that such
business is not in compliance with the requirements of this section or
the regulations promulgated hereunder.
g. The mayor shall promulgate such rules and regulations as may be
necessary for the purpose of implementing the provisions of this
section. Such regulations may increase the gross receipts limitation
provided by subparagraph (a) of paragraph six of subdivision a of this
section to an amount not to exceed two million dollars, and may increase
the gross receipts limitation provided by paragraph eight of such
subdivision to an amount not to exceed five million dollars, for all or
specifically designated categories of locally based enterprises and
graduate locally based enterprises, so as to effectuate the purposes of
this section. By regulation, such gross receipts limitations may be
further adjusted every two years to be higher than the amounts specified
in this subdivision, as necessary to account for the effects of
inflation as indicated by an appropriate index of costs in the
construction industry, developed by the director of the office of
construction, office of the mayor. Such regulations may also adjust
upward the income limitation in paragraph five of subdivision a of this
section to allow for increases in the cost of living. Any contractual
terms and conditions for contractors and subcontractors provided for in
any such regulation, including any sanctions to be imposed for failure
to comply with this section, shall be approved as to form by the
corporation counsel. All rules and regulations pursuant to and in
furtherance of this section shall be adopted and amended in accordance
with chapter forty-five of the charter.
h. The mayor shall submit an annual report to the council, on or
before April first of each year, concerning the administration of the
program established pursuant to this section.
Section 6-108.2
* § 6-108.2 Small business enterprises.
a. Definitions. For purposes of this section only, the following terms
shall have the following meanings:
(1) "Base amount", for the time period commencing on the effective
date of this paragraph and ending on December thirty-first, nineteen
hundred eighty-nine, means the amount of seven hundred thousand dollars;
for the year nineteen hundred ninety, means eight hundred fifty thousand
dollars; for the year nineteen hundred ninety-one, means nine hundred
thousand dollars; and for the time period commencing on January first,
nineteen hundred ninety-two and ending on June thirtieth, nineteen
hundred ninety-two, means nine hundred fifty thousand dollars.
(2) "Contract" means any contract, agreement, open market order,
purchase order or any other means of procurement between a contracting
agency and one or more parties: (a) for the purchase of goods for an
amount in excess of five hundred dollars, or (b) for the performance of
services.
(3) "Goods contract" means any contract for the purchase of goods of
the categories specified by the mayor or mayor's designee pursuant to
this section and the rules promulgated hereunder. Provided, however,
that such term shall not include contracts which are awarded to the
United States government and its instrumentalities, New York state, its
political subdivisions and instrumentalities, and not-for-profit
organizations which have not been certified as small business
enterprises.
(4) "Professional services contract" means any contract for the
performance of professional services of the categories specified by the
mayor or mayor's designee pursuant to this section and the rules
promulgated hereunder. Provided, however, that such term shall not
include contracts which are awarded to the United States government and
its instrumentalities, New York state, its political subdivisions and
instrumentalities, and not-for-profit organizations which have not been
certified as small business enterprises.
(5) "Commercial services contract" means any contract for the
performance of commercial services of the categories specified by the
mayor or mayor's designee pursuant to this section and the rules
promulgated hereunder. Provided, however, that such term shall not
include contracts which are awarded to the United States government and
its instrumentalities, New York state, its political subdivisions and
instrumentalities, and not-for-profit organizations which have not been
certified as small business enterprises.
(6) "Small business enterprise" means a small business enterprise
vendor, a small professional services business enterprise or a small
commercial services business enterprise.
(7) "Small commercial services business enterprise" means a business
offering commercial services,
(a) in which annualized gross receipts for the performance of services
did not exceed the base amount for the applicable year, as defined in
paragraph one of this subdivision, in two of the three tax years
immediately preceding the date of application for certification;
provided, however, that a business which has been in existence for less
than three tax years shall meet the requirements of this subparagraph
for each tax year of its existence; and
(b) which has its principal place of business in the city as
determined in accordance with rules promulgated pursuant to subdivision
e of this section; and
(c) which is subject to the general corporation tax or the city
unincorporated business income tax, and has paid such taxes as required;
and
(d) which has been operating for at least twelve months prior to the
date of application for certification; and
(e) which has been certified according to the procedure provided for
in subdivision d of this section.
(8) "Small business enterprise vendor" means a business supplying
goods,
(a) in which, in two of the three tax years immediately preceding the
date of application for certification, either:
(i) its annualized gross sales of goods were two million dollars or
less, or
(ii) the difference between its annualized gross sales and its cost
for goods sold was two hundred thousand dollars or less; provided,
however, that a business which has been in existence for less than three
tax years must meet the requirements of clause (i) or (ii) of this
subparagraph for each year of its existence; and
(b) which has its principal place of business in the city as
determined in accordance with rules promulgated pursuant to subdivision
e of this section; and
(c) which is subject to the general corporation tax or the city
unincorporated business income tax, and has paid such taxes as required;
and
(d) which has been operating for at least twelve months prior to the
date of application for certification; and
(e) which has been certified according to the procedure provided for
in subdivision d of this section.
(9) "Small professional services business enterprise" means a business
offering professional services,
(a) in which annualized gross receipts for the performance of services
did not exceed the base amount for the applicable year, as defined in
paragraph one of this subdivision, in two of the three tax years
immediately preceding the date of application for certification;
provided, however, that a business which has been in existence for less
than three tax years shall meet the requirements of this subparagraph
for each tax year of its existence; and
(b) which has its principal place of business in the city as
determined in accordance with rules promulgated pursuant to subdivision
e of this section; and
(c) which is subject to the general corporation tax or the city
unincorporated business income tax, and has paid such taxes as required;
and
(d) which has been operating for at least twelve months prior to the
date of application for certification; and
(e) which has been certified according to the procedure provided for
in subdivision d of this section.
(10) "Not-for-profit organization" means an entity that is either:
(a) incorporated as a not-for-profit corporation under the laws of the
state of its incorporation; or
(b) exempt from federal income tax pursuant to subdivision c of
section five hundred one of the internal revenue code of nineteen
hundred eighty-six, as amended.
b. Goods contracts.
Each contracting agency shall, in a manner consistent with the
requirements of applicable city, state and federal law, seek to ensure
that not less than twenty percent of the total dollar amount of all
goods contracts awarded by such agency for an amount not more than ten
thousand dollars during each fiscal year shall be awarded to small
business enterprise vendors. The mayor or the mayor's designee shall
promulgate rules pursuant to subdivision e of this section setting forth
the contracts and the categories of goods which, because of the capacity
of small business enterprises to provide such goods, and the
appropriateness of contracting with such enterprises for the provision
of such goods, shall be subject to the procedures set forth in this
subdivision.
c. Professional and commercial services contracts.
(1) Each contracting agency shall, in a manner consistent with the
requirements of applicable city, state and federal law, seek to ensure
that not less than ten percent of the total dollar amount of all
professional services contracts awarded during each fiscal year shall be
awarded to small professional services business enterprises. Contracting
agencies shall seek to divide needed work into smaller units, if
practicable and economically feasible, so that it may be bid on and
successfully completed by small professional services business
enterprises. The mayor or the mayor's designee shall promulgate rules
pursuant to subdivision e of this section setting forth the contracts
and the professional services which, because of the capacity of small
business enterprises to provide such services, and the appropriateness
of contracting with such enterprises for the provision of particular
professional services, shall be subject to the procedures set forth in
this subdivision.
(2) Each contracting agency shall, in a manner consistent with the
requirements of applicable city, state and federal law, seek to ensure
that not less than ten percent of the total dollar amount of all
commercial services contracts awarded during each fiscal year shall be
awarded to small commercial services business enterprises. Contracting
agencies shall seek to divide needed work into smaller units, if
practicable and economically feasible, so that it may be bid on and
successfully completed by small commercial services business
enterprises. The mayor or the mayor's designee shall promulgate rules
pursuant to subdivision e of this section setting forth the contracts
and the commercial services which, because of the capacity of small
business enterprises to provide such services, and the appropriateness
of contracting with such enterprises for the provision of particular
commercial services, shall be subject to the procedures set forth in
this subdivision.
d. (1) The mayor or the mayor's designee shall establish a procedure
for the certification of businesses which meet the requirements of this
section and rules promulgated hereunder as either small business
enterprise vendors, small professional services business enterprises or
small commercial services business enterprises. Such rules shall set
forth criteria to ensure that any business certified as a small business
enterprise is an independent business and not substantially owned or
controlled by any other business entity which would not qualify as a
small business enterprise. Such rules shall further require each
business certified as a small business enterprise to submit periodic
reports providing information as to its continuing qualification as a
small business enterprise. Certification granted pursuant to this
subdivision shall be valid for a period of three years.
(2) The mayor or the mayor's designee may rescind the certification of
a small business enterprise after providing notice and an opportunity to
be heard to the business upon a finding that such business is not in
compliance with the requirements of this section or the rules
promulgated hereunder.
e. The mayor or the mayor's designee shall promulgate such rules as
may be necessary for the purpose of implementing the provisions of this
section. Such rules shall require contracting agencies to submit monthly
reports to the mayor or the mayor's designee concerning contract awards
to small business enterprises. All rules pursuant to and in furtherance
of this section shall be adopted and amended in accordance with the city
administrative procedure act, chapter forty-five of the charter.
* NB Expired June 30, 1992
Section 6-109.
Section 6-109. a. Definitions. For purposes of this section, the
following terms shall have the following meanings:
(1) "City" means the City of New York.
(2) "Entity" or "Person" means any individual, sole proprietorship,
partnership, association, joint venture, limited liability company,
corporation or any other form of doing business.
(3) "Homecare Services" means the provision of homecare services under
the city's Medicaid Personal Care/Home Attendant or Housekeeping
Programs, including but not limited to the In-Home Services for the
Elderly Programs administered by the Department for the Aging.
(4) "Building Services" means work performing any custodial,
janitorial, groundskeeping or security guard services, including but not
limited to, washing and waxing floors, cleaning windows, cleaning of
curtains, rugs, or drapes, and disinfecting and exterminating services.
(5) "Day Care Services" means provision of day care services through
the city's center-based day care program administered under contract
with the city's administration for children's services. No other day
care programs shall be covered, including family-based day care programs
administered by city-contracted day care centers.
(6) "Head Start Services" means provision of head start services
through the city's center-based head start program administered under
contract with the city's administration for children's services. No
other head start programs shall be covered.
(7) "Services to Persons with Cerebral Palsy" means provision of
services which enable persons with cerebral palsy and related
disabilities to lead independent and productive lives through an agency
that provides health care, education, employment, housing and technology
resources to such persons under contract with the city or the department
of education.
(8) "Food Services" means the work preparing and/or providing food.
Such services shall include, but not be limited to, those as performed
by workers employed under the titles as described in the federal
dictionary of occupational titles for cook, kitchen helper, cafeteria
attendant, and counter attendant. Any contracting agency letting a food
services contract under which workers will be employed who do not fall
within the foregoing definitions must request that the comptroller
establish classifications and prevailing wage rates for such workers.
(9) "Temporary Services" means the provision of services pursuant to a
contract with a temporary services, staffing or employment agency or
other similar entity where the workers performing the services are not
employees of the contracting agency. Such services shall include those
performed by workers employed under the titles as described in the
federal dictionary of occupational titles for secretary, word processing
machine operator, data entry clerk, file clerk, and general clerk. Any
contracting agency letting a temporary services contract under which
workers will be employed who do not fall within the foregoing
definitions must request the comptroller to establish classifications
and prevailing wage rates for such workers.
(10) "City Service Contract" means any written agreement between any
entity and a contracting agency whereby a contracting agency is
committed to expend or does expend funds and the principle purpose of
such agreement is to provide homecare services, building services, day
care services, head start services, services to persons with cerebral
palsy, food services or temporary services where the value of the
agreement is greater than the city's small purchases limit pursuant to
section 314 of the city charter. This definition shall not include
contracts with not-for-profit organizations, provided however, that this
exception shall not apply to not-for-profit organizations providing
homecare, headstart, day care and services to persons with cerebral
palsy. This definition shall also not include contracts awarded pursuant
to the emergency procurement procedure as set forth in section 315 of
the city charter.
(11) "City Service Contractor" means any entity and/or person that
enters into a city service contract with a contracting agency. An entity
shall be deemed a city service contractor for the duration of the city
service contract that it receives or performs.
(12) "City Service Subcontractor" means any entity and/or person,
including, but not limited to, a temporary services, staffing or
employment agency or other similar entity, that is engaged by a city
service contractor to assist in performing any of the services to be
rendered pursuant to a city service contract. This definition does not
include any contractor or subcontractor that merely provides goods
relating to a city service contract or that provides services of a
general nature (such as relating to general office operations) to a city
service contractor which do not relate directly to performing the
services to be rendered pursuant to the city service contract. An entity
shall be deemed a city service contractor for the duration of the period
during which it assists the city service subcontractor in performing the
city service contract.
(13) "Contracting Agency" means the city, a city agency, the city
council, a county, a borough, or other office, position, administration,
department, division, bureau, board, commission, corporation, or an
institution or agency of government, the expenses of which are paid in
whole or in part from the city treasury or the department of education.
(14) "Covered Employer" means a city service contractor or a city
service subcontractor.
(15) "Employee" means any person who performs work on a full-time,
part-time, temporary, or seasonal basis and includes employees,
independent contractors, and contingent or contracted workers, including
persons made available to work through the services of a temporary
services, staffing or employment agency or similar entity. For purposes
of this definition and this section, "employ" means to maintain an
employee, as defined in this section. For purposes of counting numbers
of employees or employed persons when required by this section,
full-time, part-time, temporary, or seasonal employees shall be counted
as employees. Where an employer's work force fluctuates seasonally, it
shall be deemed to employ the highest number of employees that it
maintains for any three month period. However, in the case of city
service contractors and city service subcontractors that provide day
care services, independent contractors that are family-based day care
providers shall not be deemed employees of the agencies and shall not be
subject to the requirements of this section.
(16) "Covered Employee" means an employee entitled to be paid the
living wage or the prevailing wage and/or health benefits as provided in
subdivision b of this section.
(17) "Not-for-Profit Organization" means a corporation or entity
having tax exempt status under section 501(c)(3) of the United States
internal revenue code and incorporated under state not-for-profit law.
(18) "Prevailing Wage and Supplements" means the rate of wage and
supplemental benefits per hour paid in the locality to workers in the
same trade or occupation and annually determined by the comptroller in
accordance with the provisions of section 234 of the New York state
labor law or, for titles not specifically enumerated in or covered by
that law, determined by the comptroller at the request of a contracting
agency or a covered employer in accordance with the procedures of
section 234 of the New York state labor law. As provided under section
231 of the New York state labor law, the obligation of an employer to
pay prevailing supplements may be discharged by furnishing any
equivalent combinations of fringe benefits or by making equivalent or
differential payments in cash under rules and regulations established by
the comptroller.
(19) "Living Wage" has the meaning provided in paragraph 2 of
subdivision b of this section.
(20) "Health Benefits" has the meaning provided in paragraph 3 of
subdivision b of this section.
(21) "Health Benefits Supplement Rate" has the meaning provided in
subparagraph b of paragraph 3 of subdivision b of this section.
b. Living Wage, Prevailing Wage and Health Benefits. (1) Coverage. (a)
A city service contractor or city service subcontractor that provides
homecare services, day care services, head start services or services to
persons with cerebral palsy must pay its covered employees that directly
render such services in performance of the city service contract or
subcontract no less than the living wage and must either provide its
employees health benefits or must supplement their hourly wage rate by
an amount no less than the health benefits supplement rate. This
requirement applies for each hour that the employee works performing the
city service contract or subcontract.
(b) A city service contractor or city service subcontractor that
provides building services, food services or temporary services must pay
its employees that are engaged in performing the city service contract
or subcontract no less than the living wage or the prevailing wage,
whichever is greater. Where the living wage is greater than the
prevailing wage, the city service contractor or city service
subcontractor must either provide its employees health benefits or must
supplement their hourly wage rate by an amount no less than the health
benefits supplement rate. Where the prevailing wage is greater than the
living wage, the city service contractor or city service subcontractor
must provide its employees the prevailing wage and supplements as
provided in paragraph 18 of subdivision a of this section. These
requirements apply for each hour that the employee works performing the
city service contract or subcontract.
(2) The Living Wage. The living wage shall be an hourly wage rate of
ten dollars per hour and will be phased in as provided below. Provided,
however, that for homecare services under the Personal Care Services
program, the wage and health rates below shall only apply as long as the
state and federal government maintain their combined aggregate
proportionate share of funding and approved rates for homecare services
in effect as of the date of the enactment of this section:
(a) As of the effective date of this section, $8.10 per hour;
(b) As of July 1, 2003, $8.60 per hour;
(c) As of July 1, 2004, $9.10 per hour;
(d) As of July 1, 2005, $9.60 per hour;
(e) As of July 1, 2006, $10.00 per hour.
(3) Health Benefits. (a) Health Benefits means receipt by a covered
employee of a health care benefits package for the covered employee
and/or a health care benefits package for the covered employee and such
employee's family and/or dependents.
(b) The Health Benefits Supplement Rate shall be $1.50 per hour.
(c) For homecare services provided under the Personal Care Services
program, the wage and health rates above shall only apply as long as the
state and federal government maintain their combined aggregate
proportionate share of funding and approved rates for homecare services
in effect as of the date of the enactment of this section.
(d) In the case of city service contractors or subcontractors
providing homecare services, the health benefits requirements of this
section may be waived by the terms of a bona fide collective bargaining
agreement with respect to employees who have never worked a minimum of
eighty (80) hours per month for two consecutive months for that covered
employer, but such provision may not be waived for any employees once
they have achieved a minimum of eighty (80) hours for two consecutive
months and no other provisions of this section may be so waived.
(4) Exemption for Employment Programs for the Disadvantaged. The
following categories of employees shall not be subject to the
requirements of this section:
(a) Any employee who is:
(i) Under the age of eighteen who is claimed as a dependent for
federal income tax purposes and is employed as an after-school or summer
employee; or
(ii) Employed as a trainee in a bona fide training program consistent
with federal and state law where the training program has the goal that
the employee advances into a permanent position; provided, however, that
this exemption shall apply only when the trainee does not replace,
displace or lower the wages or benefits of any covered employee, and the
training does not exceed two years; and
(b) Any disabled employee, where such disabled employee:
(i) Is covered by a current sub-minimum wage certificate issued to the
employer by the United States department of labor; or
(ii) Would be covered by such a certificate but for the fact that the
employer is paying a wage equal to or higher than the federal minimum
wage.
(5) Retaliation and Discrimination Barred. It shall be unlawful for
any covered employer to retaliate, discharge, demote, suspend, take
adverse employment action in the terms and conditions of employment or
otherwise discriminate against any covered employee for reporting or
asserting a violation of this section, for seeking or communicating
information regarding rights conferred by this section, for exercising
any other rights protected under this section, or for participating in
any investigatory or court proceeding relating to this section. This
protection shall also apply to any covered employee or his or her
representative who in good faith alleges a violation of this section, or
who seeks or communicates information regarding rights conferred by this
section in circumstances where he or she in good faith believes this
section applies. Taking adverse employment action against a covered
employee(s) or his or her representative within sixty days of the
covered employee engaging in any of the aforementioned activities shall
raise a rebuttable presumption of having done so in retaliation for
those activities. Any covered employee subjected to any action that
violates this subsection may pursue administrative remedies or bring a
civil action pursuant to subsection e of this section in a court of
competent jurisdiction.
(6) Nothing in this section shall be construed to establish a wage or
benefit pattern or otherwise affect the establishment of wages or
benefits for city employees.
c. Obligations of Covered Employers. (1) A covered employer shall
comply with the wage, benefits and other requirements of this section.
(2) Certification of Compliance. (a) Prior to the award or renewal of
a city service contract, the applicant for award or renewal shall
provide to the extent permitted by law the awarding contracting agency a
certification containing the following information:
(i) The name, address, and telephone number of the chief executive
officer of the applicant;
(ii) A statement that, if the city service contract is awarded or
renewed, the applicant agrees to comply with the requirements of this
section, and with all applicable federal, state and local laws;
(iii) The following workforce information concerning employees of the
applicant that will be covered employees under the planned city service
contract: (a) the absolute number of covered employees and the number of
full-time equivalent covered employees; (b) for all categories of
covered employees, the following information broken down by category:
(1) job classifications of covered employees in each category; and (2)
the wages and benefits provided covered employees in each category
(including a description of individual and family health coverage, and
sick, annual and terminal leave). The applicant further agrees to
require all of its city service subcontractors to provide the same
workforce information as described herein;
(iv) To the extent permitted by law, a record of any instances during
the preceding five years in which the applicant has been found by a
court or government agency to have violated federal, state or local laws
regulating payment of wages or benefits, labor relations or occupational
safety and health, or to the extent permitted by law, in which any
government body initiated a judicial action, administrative proceeding
or investigation of the applicant in regard to such laws; and
(v) An acknowledgement that a finding by a contracting agency that the
applicant has violated the requirements of this section may result in
the cancellation or rescission of the city service contract.
The certification shall be signed under penalty of perjury by an
officer of the applicant, and shall be annexed to and form a part of the
city service contract. The certification (including updated
certifications) and the city service contract shall be public documents
and the contracting agency shall make them available to the public upon
request for inspection and copying pursuant to the state freedom of
information law.
(b) A city service contractor shall each year throughout the term of
the city service contract submit to the contracting agency an updated
certification, identifying any, if any exist, changes to the current
certification.
(c) A covered employer shall maintain original payroll records for
each of its covered employees reflecting the days and hours worked on
contracts, projects or assignments that are subject to the requirements
of this section, and the wages paid and benefits provided for such hours
worked. The covered employer shall maintain these records for the
duration of the term of the city service contract and shall retain them
for a period of four years after completion of the term of the city
service contract. Failure to maintain such records as required shall
create a rebuttable presumption that the covered employer did not pay
its covered employees the wages and benefits required under the section.
Upon the request of the comptroller or the contracting agency, the
covered employer shall provide a certified original payroll record.
(d) A city service contractor providing building services, food
services or temporary services shall, as required by the predecessor
version of this section, continue to submit copies of such payroll
records, certified by the city service contractor under penalty of
perjury to be true and accurate, to the contracting agency with every
requisition for payment.
(e) A city service contractor providing homecare, day care, head start
or services to persons with cerebral palsy may comply with the
certification and other reporting requirements of this paragraph by
submitting, as part of the contract proposal/contract and requests for
payment categorical information about the wages, benefits and job
classifications of covered employees of the city service contractor, and
of any city service subcontractors, which shall be the substantial
equivalent of the information required in clause iii of subparagraph (2)
(a) of this paragraph.
(3) A city service contractor shall ensure that its city service
subcontractors comply with the requirements of this section, and shall
provide written notification to its city service subcontractors of those
requirements, and include in any contract or agreement with its city
service subcontractors a provision requiring them to comply with those
requirements.
(4) No later than the day on which any work begins under a city
service contract subject to the requirements of this section, the
covered employer shall post in a prominent and accessible place at every
work site and provide each covered employee a copy of a written notice,
prepared by the comptroller, detailing the wages, benefits, and other
protections to which covered employees are entitled under this section.
Such notices shall be provided in english, spanish and other languages
spoken by ten percent or more of a covered employer's covered employees.
The comptroller shall provide contracting agencies with sample written
notices explaining the rights of covered employees and covered
employers' obligations under this section, and contracting agencies
shall in turn provide those written notices to city service contractors,
which shall in turn provide them to their subcontractors.
d. City Implementation and Reporting. (1) Coordination by the
Comptroller. The comptroller shall monitor, investigate, and audit the
compliance by all contracting agencies, and provide covered employers
and employees with the information and assistance necessary to ensure
that the section is implemented.
(a) The mayor or his or her designee shall promulgate implementing
rules and regulations as appropriate and consistent with this section
and may delegate such authority to the comptroller. The comptroller
shall be responsible for publishing the living wage and for calculating
and publishing all applicable prevailing wage and health benefits
supplement rates. The comptroller shall annually publish the adjusted
rates. The adjusted living wage and health benefits supplement rate
shall take effect on July 1 of each year, and the adjusted prevailing
wage rates shall take effect on whatever date revised prevailing wage
rates determined under section 230 of the state labor law are made
effective. At least 30 days prior to their effective date, the relevant
contracting agencies, shall provide notice of the adjusted rates to city
service contractors, which shall in turn provide written notification of
the rate adjustments to each of their covered employees, and to any city
service subcontractors, which shall in turn provide written notification
to each of their covered employees. Covered employers shall make
necessary wage and health benefits adjustments by the effective date of
the adjusted rates.
(b) The comptroller and the mayor shall ensure that the information
set forth in the certifications (including annual updated certifications
and alternatives to certifications authorized for city service
contractors providing homecare, day care, or head start services or
services to persons with cerebral palsy) required to be submitted under
paragraph 2 of subdivision c of this section is integrated into and
contained in the city's contracting and financial management database
established pursuant to section 6-116.2 of the administrative code. Such
information shall to the extent permitted by law be made available to
the public. Provided, however, that the comptroller and the mayor may
agree to restrict from disclosure to the public any information from the
certifications required under paragraph 2 of subdivision c of this
section that is of a personal nature.
(c) The comptroller shall submit annual reports to the mayor and the
city council summarizing and assessing the implementation and
enforcement of this section during the preceding year, and include such
information in the summary report on contracts required under section
6-116.2 of the administrative code.
(2) Implementation by Contracting Agencies. (a) Contracting agencies
shall comply with and enforce the requirements of this section. The
requirements of this section shall be a term and condition of any city
service contract. No contracting agency may expend city funds in
connection with any city service contract that does not comply with the
requirements of this section.
(b) Every city service contract shall have annexed to it the following
materials which shall form a part of the specifications for and terms of
the city service contract:
(i) A provision obligating the city service contractor to comply with
all applicable requirements under this section;
(ii) The certification required under paragraph 2 of subdivision c of
this section;
(iii) A schedule of the current living wage and health benefits
supplement rates, a schedule of job classifications for which payment of
the prevailing wage is required under this section together with the
applicable prevailing wage rates for each job classification, as
determined by the comptroller and notice that such rates are adjusted
annually; and
(iv) A provision providing that: (a) Failure to comply with the
requirements of this section may constitute a material breach by the
city service contractor of the terms of the city service contract; (b)
Such failure shall be determined by the contracting agency; and (c) If,
within thirty days after or pursuant to the terms of the city service
contract, whichever is longer, the city service contractor and/or
subcontractor receives written notice of such a breach, the city service
contractor fails to cure such breach, the city shall have the right to
pursue any rights or remedies available under the terms of the city
service contract or under applicable law, including termination of the
contract.
e. Monitoring, Investigation and Enforcement. (1) Enforcement. (a)
Whenever the comptroller has reason to believe that a covered employer
or other person has not complied with the requirements of this section,
or upon a verified complaint in writing from a covered employee, a
former employee, an employee's representative, a labor union with an
interest in the city service contract at issue, the comptroller shall
conduct an investigation to determine the facts relating thereto. In
conducting such investigation, the comptroller shall have the same
investigatory, hearing, and other powers as are conferred on the
comptroller by sections 234 and 235 of the state labor law. At the start
of such investigation, the comptroller may, in a manner consistent with
the withholding procedures established by section 235.2 of the state
labor law, instruct or, in the case of homecare services, day care
services, head start services or services to persons with cerebral
palsy, advise the relevant contracting agency to withhold any payment
due the covered employer in order to safeguard the rights of the covered
employees. Provided, however, that in the case of city service
contractors providing services to persons with cerebral palsy, day care
or head start services, no such withholding of payment may be ordered
until such time as the comptroller or contracting agency, as applicable,
has issued an order, determination or other disposition finding a
violation of this section and the city service contractor has failed to
cure the violation in a timely fashion. Based upon such investigation,
hearing, and findings, the comptroller shall report the results of such
investigation and hearing to the contracting agency, who shall issue
such order, determination or other disposition. Such disposition may:
(i) Direct payment of wages and/or the monetary equivalent of benefits
wrongly denied, including interest from the date of the underpayment to
the worker, based on the rate of interest per year then in effect as
prescribed by the superintendent of banks pursuant to section 14-a of
the state banking law, but in any event at a rate no less than six
percent per year;
(ii) Direct the filing or disclosure of any records that were not
filed or made available to the public as required by this section;
(iii) Direct the reinstatement of, or other appropriate relief for,
any person found to have been subject to retaliation or discrimination
in violation of this section;
(iv) Direct payment of a further sum as a civil penalty in an amount
not exceeding twenty-five percent of the total amount found to be due in
violation of this section;
(v) Direct payment of the sums withheld at the commencement of the
investigation and the interest that has accrued thereon to the covered
employer; and
(vi) Declare a finding of non-responsibility and bar the covered
employer from receiving city service contracts from the contracting
agency for a prescribed period of time.
In assessing an appropriate remedy, a contracting agency shall give
due consideration to the size of the employer's business, the employer's
good faith, the gravity of the violation, the history of previous
violations and the failure to comply with record-keeping, reporting,
anti-retaliation or other non-wage requirements. Any civil penalty shall
be deposited in the city general revenue fund.
(b) In circumstances where a city service contractor fails to perform
in accordance with any of the requirements of this section and there is
a continued need for the service, a contracting agency may obtain from
another source the required service as specified in the original
contract, or any part thereof, and may charge the non-performing city
service contractor for any difference in price resulting from the
alternative arrangements, may assess any administrative charge
established by the contracting agency, and may, as appropriate, invoke
such other sanctions as are available under the contract and applicable
law.
(c) Before issuing an order, determination or any other disposition,
the comptroller or contracting agency, as applicable, shall give notice
thereof together with a copy of the complaint, or a statement of the
facts disclosed upon investigation, which notice shall be served
personally or by mail on any person or covered employer affected
thereby. The comptroller or contracting agency, as applicable, may
negotiate an agreed upon stipulation of settlement or refer the matter
to the office of administrative trials and hearings for a hearing and
disposition. Such person or covered employer shall be notified of a
hearing date by the office of administrative trials and hearings and
shall have the opportunity to be heard in respect to such matters.
(d) In an investigation conducted under the provisions of this
section, the inquiry of the comptroller or contracting agency, as
applicable, shall not extend to work performed more than three years
prior to the filing of the complaint, or the commencement of such
investigation, whichever is earlier.
(e) When, pursuant to the provisions of this section, a final
disposition has been entered against a covered employer in two instances
within any consecutive six year period determining that such covered
employer has failed to comply with the wage, benefits, anti-retaliation,
record-keeping or reporting requirements of this section, such covered
employer, and any principal or officer of such covered employer who
knowingly participated in such failure, shall be ineligible to submit a
bid on or be awarded any city service contract for a period of five
years from the date of the second disposition.
(f) When a final determination has been made in favor of a covered
employee or other person and the person found violating this section has
failed to comply with the payment or other terms of the remedial order
of the comptroller or contracting agency, as applicable, and provided
that no proceeding for judicial review shall then be pending and the
time for initiation of such proceeding shall have expired, the
comptroller or contracting agency, as applicable, shall file a copy of
such order containing the amount found to be due with the city clerk of
the county of residence or place of business of the person found to have
violated this section, or of any principal or officer thereof who
knowingly participated in the violation of this section. The filing of
such order shall have the full force and effect of a judgment duly
docketed in the office of such clerk. The order may be enforced by and
in the name of the comptroller or contracting agency, as applicable, in
the same manner and with like effect as that prescribed by the state
civil practice law and rules for the enforcement of a money judgment.
(g) Before any further payment is made, or claim is permitted, of any
sums or benefits due under any city service contract covered by this
section, it shall be the duty of the contracting agency to require the
covered employer, including each city service subcontractor of the
covered employer, that has been found to have violated the law, to file
a written statement certifying to the amounts then due and owing from
each such covered employer to or on behalf of all covered employees, or
the city for wages or benefits wrongly denied them, or for civil
penalties assessed, and setting forth the names of the persons owed and
the amount due to or on behalf of each respectively. This statement
shall be verified as true and accurate by the covered employer under
penalty of perjury. If any interested person shall have previously filed
a protest in writing objecting to the payment to any covered employer on
the ground that payment is owing to one or more employees of the covered
employer for violations of this section, or if for any other reason it
may be deemed advisable, the comptroller, a contracting agency or the
city department of finance may deduct from the whole amount of any
payment to the covered employer sums admitted by the covered employer in
the verified statement or statements to be due and owing to any covered
employee before making payment of the amount certified for payment, and
may withhold the amount so deducted for the benefit of the employees or
persons that are owed payment as shown by the verified statements and
may pay directly to any person the amount shown by the statements to be
due them.
(h) The comptroller or any contracting agency shall be authorized to
contract with non-governmental agencies to investigate possible
violations of this section. Where a covered employer is found to have
violated the requirements of this section, the covered employer shall be
liable to the city for costs incurred in investigating and prosecuting
the violation.
(2) Enforcement by Private Right of Action. (a) When a final
determination has been made and such determination is in favor of a
covered employee, such covered employee may, in addition to any other
remedy provided by this section, institute an action in any court of
appropriate jurisdiction against the covered employer found to have
violated this section. For any violation of this section, including
failure to pay applicable wages, provide required benefits, or comply
with other requirements of this section, including protections against
retaliation and discrimination, the court may award any appropriate
remedy at law or equity including, but not limited to, back pay, payment
for wrongly denied benefits, interest, other equitable or make-whole
relief, reinstatement, injunctive relief and/or compensatory damages.
The court shall award reasonable attorney's fees and costs to any
complaining party who prevails in any such enforcement action.
(b) Notwithstanding any inconsistent provision of this section or of
any other general, special or local law, ordinance, city charter or
administrative code, an employee affected by this law shall not be
barred from the right to recover the difference between the amount paid
to the employee and the amount which should have been paid to the
employee under the provisions of this section because of the prior
receipt by the employee without protest of wages or benefits paid, or on
account of the employee's failure to state orally or in writing upon any
payroll or receipt which the employee is required to sign that the wages
or benefits received by the employee are received under protest, or on
account of the employee's failure to indicate a protest against the
amount, or that the amount so paid does not constitute payment in full
of wages or benefits due the employee for the period covered by such
payment.
(c) Such action must be commenced within three years of the date of
the alleged violation, or within three years of the final disposition of
any administrative complaint or action concerning the alleged violation
or, if such a disposition is reviewed in a proceeding pursuant to
article 78 of the state civil practice law and rules, within three years
of the termination of such review proceedings. No procedure or remedy
set forth in this section is intended to be exclusive or a prerequisite
for asserting a claim for relief to enforce any rights hereunder in a
court of law. This section shall not be construed to limit an employee's
right to bring a common law cause of action for wrongful termination.
f. Other provisions. (1) Except where expressly provided otherwise in
this section, the requirements of this section shall apply to city
service contracts entered into after the effective date of this section,
and shall not apply to any existing city service contract entered into
prior to that date. Where a city service contract is renewed or extended
after the effective date of this section, such renewal or extension
shall be deemed new city service contracts and shall trigger coverage
under this section if the terms of the renewed or extended city service
contract, otherwise meet the requirements for coverage under this
section. However, city service contractors and city service
subcontractors that provide services to persons with cerebral palsy, day
care services or head start services shall be subject to the
requirements of this section only upon the award or renewal of city
service contracts after the effective date of this section. City service
contractors and city service subcontractors that provide homecare
services shall be subject to the requirements of this section
immediately upon the effective date of this section.
(2) Members of the public shall have a right of access to documents or
information that is designated as public under article six of the public
officers law. Such public documents or information as pursuant to the
law shall be made available to the public for inspection and copying.
The custodians of such documents or information may charge a reasonable
fee, not to exceed twenty-five cents per page, for copying.
(3) Contracting agencies shall begin requiring city service
contractors to supplement the information currently required to be
submitted pursuant to section 6-116.2 of the administrative code with
the additional information specified in clause iii of subparagraph a of
paragraph 2 of subdivision c of this section. This information shall be
compiled by the contracting agency and included in the computerized
database jointly maintained by the mayor and the comptroller pursuant to
section 6-116.2 of the administrative code.
(4) Nothing in this section shall be construed as prohibiting or
conflicting with any other obligation or law, including any collective
bargaining agreement, that mandates the provision of higher or superior
wages, benefits, or protections to covered employees. No requirement or
provision of this section shall be construed as applying to any person
or circumstance where such coverage would be preempted by federal or
state law. However, in such circumstances, only those specific
applications or provisions of this section for which coverage would be
preempted shall be construed as not applying.
(5) In the event that any requirement or provision of this section, or
its application to any person or circumstance, should be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall
not invalidate or render unenforceable any other requirements or
provisions of this section, or the application of the requirement or
provision held invalid to any other person or circumstance.
Section 6-110
§ 6-110 Additional work. Any contract for work or supplies may contain
a provision to the effect that the head of the agency making the
contract may order additional work to be done or supplies furnished for
the purpose of completing such contract, at an expense not exceeding
five per centum of the amount thereof; provided, however, that the board
of estimate may by resolution adopt regulations providing that any
contract for work or supplies may contain a provision to the effect that
the head of the agency making the contract may order additional work to
be done or supplies furnished for the purpose of completing such
contract, at an expense not exceeding ten per centum of the amount
thereof.
Section 6-111
§ 6-111 Bids; opening of. All bids shall be publicly opened by the
officer or officers advertising therefor in the presence of the
comptroller, or the comptroller's representative. The opening of such
bids shall not be postponed if the comptroller or the comptroller's
representative shall, after due notice, fail to attend.
Section 6-111.1
§ 6-111.1 All requests for proposals and any other public notices of
opportunities to contract with the city shall, simultaneously with their
publication, be posted on the city's website in a location that is
accessible by the public.
Section 6-111.2
§ 6-111.2 Client services contracts. No request for proposal for new
client services program contracts shall be released to the public unless
at least 45 days prior to such release a concept report regarding such
request for proposal is released to the public. Prior to the release of
concept reports, the city shall publish a notification of the release in
five consecutive editions of the city record and electronically on the
city's website in a location that is accessible to the public, and upon
release, concept reports shall be posted on the city's website in a
location that is accessible by the public. For purposes of this
subdivision, the term, "new client services program" shall mean any
program that differs substantially in scope from an agency's current
contractual client services programs, including, but not limited to,
substantial differences in the number or types of clients, geographic
areas, evaluation criteria, service design or price maximums or ranges
per participant if applicable. For purposes of this subdivision, the
term, "concept report", shall mean a document outlining the basic
requirements of a request for proposal for client services contracts and
shall include, but not be limited to, statements explaining:
(i) the purpose of the request for proposal;
(ii) the planned method of evaluating proposals;
(iii) the proposed term of the contract;
(iv) the procurement timeline, including, but not limited to, the
expected start date for new contracts, expected request for proposal
release date, approximate proposal submission deadline and expected
award announcement date;
(v) funding information, including but not limited to, total funding
available for the request for proposal and sources of funding,
anticipated number of contracts to be awarded, average funding level of
contracts, anticipated funding minimums, maximums or ranges per
participant, if applicable, and funding match requirements;
(vi) program information, including, but not limited to, as
applicable, proposed model or program parameters, site, service hours,
participant population(s) to be served and participant minimums and/or
maximums; and
(vii) proposed vendor performance reporting requirements.
b. Notwithstanding the issuance of a concept report, the agency may
change the above-required information at any time after the issuance of
such concept report. Non-compliance with this section shall not be
grounds to invalidate a contract.
Section 6-111.3
§ 6-111.3 Online reverse auction pilot program. a. The mayor may
create a pilot program to determine the efficacy of online reverse
auctions. The pilot program shall be for a period of twenty-four months
during which period the mayor shall conduct at least six online reverse
auctions for purchase contracts chosen by the mayor the combined value
of which shall not be less than six million dollars. For purposes of
this section the term, "online reverse auction," shall mean an auction
for the purchase of goods by the city which is conducted online in
electronic interactive format during which potential vendors bid against
one another to provide goods for the city. The mayor may promulgate
rules to implement the requirements of this section. The mayor shall
submit a report to the Council and the Comptroller detailing the results
of the online reverse auction pilot program no more than 60 days after
the completion of such pilot program.
Section 6-112
§ 6-112 False statements. Any person who makes or causes to be made a
false, deceptive or fraudulent representation in any statement required
by the board of estimate to set forth the financial condition, present
plant and equipment, working organization, prior experience, and other
information pertinent to the qualifications of any bidder, shall be
guilty of an offense punishable by a fine of not less than one hundred
dollars nor more than one thousand dollars, by imprisonment for a period
not exceeding six months, or both; and the person on whose behalf such
false, deceptive or fraudulent representation was made, shall
thenceforth be disqualified from bidding on any contracts for the city.
Section 6-113
§ 6-113 Security. Each bidder whose bid is accepted shall give
security for the faithful performance of his or her contract in the
manner prescribed in the regulations of the board of estimate. The
adequacy and sufficiency of such security, as well as the justification
and acknowledgment thereof, shall be subject to the approval of the
comptroller.
Section 6-114
§ 6-114 Participation in an international boycott. a. Every contract
for or on behalf of the city for the manufacture, furnishing or
purchasing of supplies, material or equipment or for the furnishing of
work, labor or services, in an amount exceeding five thousand dollars,
shall contain a stipulation, as a material condition of the contract, by
which the contractor agrees that neither the contractor nor any
substantially-owned affiliated company is participating or shall
participate in an international boycott in violation of the provisions
of the export administration act of nineteen hundred sixty-nine, as
amended, or the regulations of the United States department of commerce
promulgated thereunder.
b. Upon the final determination by the commerce department or any
other agency of the United States as to, or conviction of any contractor
or substantially-owned affiliated company thereof, participation in an
international boycott in violation of the provisions of the export
administration act of nineteen hundred sixty-nine, as amended, or the
regulations promulgated thereunder, the comptroller may, at his or her
option, render forfeit and void any contract containing the conditions
specified in this section. In those instances where the comptroller
determines that no action shall be taken pursuant to this section, the
comptroller shall report the basis therefore to the city council.
c. Nothing contained herein shall operate to impair any existing
contract, except that any renewal, amendment or modification of such
contract occurring on or after the fourth of November, nineteen hundred
seventy-eight shall be subject to the conditions specified in this
section.
d. The comptroller shall have the power to issue rules and regulations
pursuant to this section.
Section 6-115
* § 6-115 a. With respect to contracts described in subdivisions b and
c of this section, and in accordance with such provisions, no city
agency shall contract for the supply of goods, services or construction
with any person who does not agree to stipulate to the following as
material conditions of the contract if there is another person who will
contract to supply goods, services or construction of comparable quality
at a comparable price:
(1) That the contractor and its affiliates shall not during the term
of such contract sell or agree to sell goods or services to Burma, the
Government of Burma, or to any entity owned or controlled by the
Government of Burma; and
(2) In the case of a contract to supply goods, that none of the goods
to be supplied to the city originated in Burma.
(3) The contractor and its affiliates do not do business in Burma or
the contractor and its affiliates are actively engaged in the withdrawal
of their operations from Burma and will have completed such withdrawal
in six months, provided, however, that any such company that has
withdrawn or is so engaged in withdrawing its operations from Burma that
maintains a presence in Burma after such six month period solely for the
purpose of liquidating its business shall not be ineligible for that
reason to make the certification provided for in this paragraph.
(4)(a) It shall not make new investments in Burma.
(b) If at any time during the course of the contract the contractor
acquires an entity which is doing business in Burma, the contractor
shall initiate withdrawal of its acquisition's operations from Burma.
(c) It shall not enter into any new agreement with a Burmese entity
allowing the use of its trademark, copyright or patent by such entity.
(5) In the case of a contract to supply motor vehicles, heavy
equipment, electronic data processing equipment and software, copying
machines or petroleum products, the contractor will, in addition to
providing the certification described in this section with respect to
itself and its affiliates, certify or provide a certification to the
contracting agency from the manufacturer or refiner of the product to be
supplied to the city that such manufacturer or refiner of the product to
be supplied to the city that such manufacturer or refiner and its
affiliates are in compliance with the terms set forth in this
subdivision and subdivision d of this section. The commissioner of the
department of citywide administrative services shall consider whether to
designate other goods supplied to the city to be subject to the
provisions of this paragraph, and by rule so designate any such goods as
he or she determine appropriate based upon considerations including
information that one or more manufacturers of such goods or affiliates
of such manufacturers have not withdrawn operations from Burma, the
effects on the city's procurement process, including the opportunities
of small, minority and women owned business enterprises to compete for
such contracts, and the recommendations of other agency heads.
(6) For the purposes of this subdivision, an entity shall be
considered to have withdrawn its operations from Burma if:
(a) it does not maintain any office, plant or employee in Burma other
than for the following purposes: (i) the activities of religious,
educational or charitable organizations; (ii) activities intended to
promote the exchange of information, including the publication or sale
of newspapers, magazines, books, films, television programming,
photographs, microfilm, microfiche, and similar materials; (iii) the
gathering or dissemination of information by news media organizations;
and (iv) the providing of telecommunications and mail services not
involving the sale or leasing of equipment;
(b) it has no investments in Burma; and
(c) it does not provide goods or services to any Burmese entity
pursuant to any non-equity agreement.
(7) The provisions of paragraphs four and six of this subdivision
concerning investments, agreements concerning trademarks, copyrights and
patents, and non-equity agreements shall not apply to the ownership or
agreements with entities engaged in activities described in clauses, i,
ii, iii and iv of subparagraph a of paragraph six.
(8) Notwithstanding the provisions of this section a city agency may
purchase medical supplies intended to preserve or prolong life or to
cure, prevent, or ameliorate diseases, including hospital, nutritional,
diagnostic, pharmaceutical and non-prescription products specifically
manufactured to satisfy identified health care needs, or for which there
is no medical substitute. The determination of whether no medical
substitute exists shall be made by the city agency requiring the supply,
pursuant to general standards of good medical and professional practice.
The city agency shall give notice to the city chief procurement officer
in writing, certifying compliance with this exemption, said notice and
certification being sufficient to allow the purchase of medical supplies
under this exemption.
To the extent that a person doing business in Burma is providing only
medical supplies, as described hereinabove, to persons in Burma, then
the supply of goods or equipment to the city by said person shall also
be exempt from the requirements of this section. This exemption from the
requirements of this section shall not apply in any case in which the
nature of any person's business dealings in Burma include both medical
and non-medical supplies.
(9) For the purposes of this subdivision:
(a) "Affiliates" of a contractor means the parent company of the
contractor, and any subsidiaries of the parent company, and any
subsidiaries of the contractor.
(b) "Parent company" shall mean an entity that directly controls the
contractor.
(c) "Subsidiary" shall mean an entity that is controlled directly or
indirectly through one or more intermediaries, by a contractor or the
contractor's parent company.
(d) "Control" shall mean holding five percent or more of the
outstanding voting securities of a corporation, or having an interest of
five percent or more in any other entity.
(e) "Entity" shall mean a sole proprietorship, partnership,
association, joint venture, company, corporation or any other form of
doing business.
(f) "Burmese entity" shall mean an entity organized in Burma, or a
branch or office in Burma of an entity that is domiciled or organized
outside Burma.
(g) "Investment" shall mean the beneficial ownership or control or a
controlling interest in a Burmese entity, but shall not include the
purchase of securities of a Burmese entity for a customer's account.
(h) "Non-equity agreement" shall mean a license, franchise,
distribution or other written agreement pursuant to which an entity
provides management, maintenance, or training services directly to a
Burmese entity, or supplies goods directly to a Burmese entity for
distribution by such Burmese entity, or for use as component parts in
the manufacture of other goods by such Burmese entity. In addition, a
non-equity agreement shall mean an original equipment manufacturer
agreement, as defined pursuant to rules promulgated by the commissioner
of the department of citywide administrative services, for equipment
sold by a manufacturer of computers, copiers, or telecommunication
equipment, which provides for or authorizes the sale of such equipment
alone or part of a finished product, to a Burmese entity. Such
commissioner shall consider whether to designate other equipment to be
subject to this provision regarding original equipment manufacturer
agreements, and by rule to so designate any such equipment as he or she
determines appropriate based upon considerations including the effects
on the city's procurement process, including the opportunities of small,
minority and women owned business enterprises to compete for such city
contracts.
b. In the case of contracts subject to competitive sealed bidding
pursuant to section three hundred thirteen of the charter, whenever the
lowest responsible bidder has not agreed to stipulate to the conditions
set forth in subdivision a of this section and another bidder who has
agreed to stipulate to such conditions has submitted a bid within five
percent of the lowest responsible bid for a contract to supply goods,
services or construction of comparable quality, the contracting agency
shall refer such bids to the mayor or such other official as may
exercise such power pursuant to section three hundred ten of the
charter, who, in accordance with subdivision b of section three hundred
thirteen of the charter may determine that it is in the best interest of
the city that the contract shall be awarded to other than the lowest
responsible bidder.
c. In the case of contracts for goods, services or construction
involving an expenditure of an amount greater than the amounts
established pursuant to subdivisions b and c of section three hundred
fourteen of the charter, the contracting agency shall not award to a
proposed contractor who has not agreed to stipulate to the conditions
set forth in subdivision a of this section unless the head of the agency
seeking to use the goods, services or construction determines that the
goods, services or construction supplied by such person are necessary
for the agency to perform its functions and there is no other
responsible contractor who will supply goods, services or construction
of comparable quality at a comparable price. Such determination shall be
made in writing and shall be forwarded to the procurement policy board
and the agency designated by the mayor pursuant to subdivision j of this
section, and published in the City Record.
d. No city agency shall enter into a contract for an amount in excess
of the amounts established pursuant to subdivisions b and c of section
three hundred fourteen of the charter with any proposed contractor who
does not agree to stipulate as a material condition of the contract that
such entity and its affiliates have not within the twelve months prior
to the award of such contract violated, and shall not during the period
of such contract violate the provisions of section 138 of the U.S.
customs and trade act of 1990 or any other sanctions imposed by the
United States government with regard to Burma.
e. Upon receiving information that a contractor, manufacturer or
refiner who has agreed to the conditions set forth in subdivision a of
this section is in violation thereof, the contracting agency shall
review such information and offer the contractor and such other entity
an opportunity to respond. If the contracting agency finds that a
violation of such conditions has occurred, or if a final determination
has been made by the commerce department or any other agency of the
United States or a finding has been made by a court that any such entity
has violated any provision of section 138 of the U.S. customs and trade
act of 1990 or any other sanctions imposed by the United States
government with regard to Burma, the contracting agency shall take such
actions as may be appropriate and provided by law, rule or contract,
including but not limited to imposing sanctions, seeking compliance,
recovering damages and declaring the contractor in default. The mayor
shall designate an agency to maintain records of actions taken in such
cases.
f. As used in this section the term "contract" shall not include
contracts with governmental and non-profit organizations, contracts
awarded pursuant to the emergency procurement procedure set forth in
section three hundred fifteen of the charter, or contracts, resolutions,
indentures, declarations of trust, or other instruments authorizing or
relating to the authorization, issuance, award, sale or purchase of
bonds, certificates of indebtedness, notes or other fiscal obligations
of the city, provided that agencies, shall consider the policies of this
law when selecting a consultant to provide financial or legal advice,
and when selecting managing underwriters in connection with such
activities.
g. The provisions of this section shall not apply to contracts for
which the city receives funds administered by the United States
department of transportation, except to the extent congress has directed
that the department of transportation, not to withhold funds from states
and localities that implement Burmese embargo policies, or to the extent
that such funds are not otherwise withheld by the department of
transportation.
h. The department of the citywide administrative services and any
other agency or agencies designated by the mayor shall conduct a study
to develop recommendations concerning the application of the policies
set forth in this section to procurement of goods, services or
construction for amounts less than or equal to the amounts established
pursuant to subdivisions b and c of section three hundred fourteen of
this charter, and shall, on or before January first, nineteen hundred
ninety-seven, submit a report to the mayor and the council containing
such recommendations.
i. Nothing in this section shall be construed to limit the authority
of a contracting agency or any official authorized by the charter to
approve the selection of a contractor from taking into account, in
making a determination to select or approve the selection of a
contractor, in a manner consistent with applicable law and rules, any
information concerning any direct or indirect relationship an entity may
have related to business activities in Burma.
j. (1) The mayor shall designate an agency or agencies to collect
information concerning entities doing business in Burma and to maintain
records of contractors which have or have not agreed to the conditions
set forth in subdivision a of this section. In October of each year,
beginning in nineteen hundred ninety-seven, such agency or agencies
shall submit a report to the mayor and the council setting forth
information concerning contractors that have and have not agreed to such
terms during the previous fiscal year, and the circumstances under which
any contract subject to this section was awarded to a contractor who did
not agree to such terms. The agency shall also report at such time on
the efforts of public and quasi-public entities operating in the city to
implement the Burmese embargo policies.
(2) The mayor shall designate an agency to collect information
concerning whether entities withdrawing from Burma have given or agreed
to give advance notification to their Burmese employees and
representative trade unions (or other representative employee
organizations if there are no appropriate unions) of the planned
termination of investment not less than six months prior to such
termination, and have engaged or agreed to engage in good faith
negotiations with such representative unions or organizations regarding
the terms of such termination, including but not limited to pension
benefits; relocation of employees; continuation of existing union
recognition agreements; severance pay; and acquisition of the terminated
business or its assets by representative trade unions, union-sponsored
workers trusts, other representative worker organizations or employees.
Such agency shall inform such entities of, and offer them an opportunity
to respond to, any such information it collects. In October of each
year, beginning in nineteen hundred ninety-seven, such agency shall
submit a report to the mayor and the council on the information
collected pursuant to this subdivision.
* NB Enacted without section heading.
Section 6-115.1
§ 6-115.1 Nondiscrimination in employment in Northern Ireland. a.
Definitions. For the purposes of this section "MacBride Principles"
shall mean those principles relating to nondiscrimination in employment
and freedom of workplace opportunity which require employers doing
business in Northern Ireland to:
(1) increase the representation of individuals from underrepresented
religious groups in the work force, including managerial, supervisory,
administrative, clerical and technical jobs;
(2) take steps to promote adequate security for the protection of
employees from underrepresented religious groups both at the workplace
and while traveling to and from work;
(3) ban provocative religious or political emblems from the workplace;
(4) publicly advertise all job openings and make special recruitment
efforts to attract applicants from underrepresented religious groups;
(5) establish layoff, recall and termination procedures which do not
in practice favor a particular religious group;
(6) abolish all job reservations, apprenticeship restrictions and
differential employment criteria which discriminate on the basis of
religion;
(7) develop training programs that will prepare substantial numbers of
current employees from underrepresented religious groups for skilled
jobs, including the expansion of existing programs and the creation of
new programs to train, upgrade and improve the skills of workers from
underrepresented religious groups;
(8) establish procedures to assess, identify and actively recruit
employees from underrepresented religious groups with potential for
further advancement; and
(9) appoint a senior management staff member to oversee affirmative
action efforts and develop a timetable to ensure their full
implementation.
b. 1. With respect to contracts described in paragraphs two and three
of this subdivision, and in accordance with such paragraphs, no agency,
elected official or the council shall contract for the supply of goods,
services or construction with any contractor who does not agree to
stipulate to the following, if there is another contractor who will
contract to supply goods, services or construction of comparable quality
at a comparable price: The contractor and any individual or legal entity
in which the contractor holds a ten percent or greater ownership
interest and any individual or legal entity that holds a ten percent or
greater ownership interest in the contractor either (a) have no business
operations in Northern Ireland, or (b) shall take lawful steps in good
faith to conduct any business operations they have in Northern Ireland
in accordance with the MacBride Principles, and shall permit independent
monitoring of their compliance with such principles.
2. In the case of contracts let by competitive sealed bidding,
whenever the lowest responsible bidder has not agreed to stipulate to
the conditions set forth in this section and another bidder who has
agreed to stipulate to such conditions has submitted a bid within five
percent of the lowest responsible bid for a contract to supply goods,
services or construction of comparable quality, the contracting entity
shall refer such bids to the mayor, the speaker or other official, as
appropriate, who may determine, in accordance with applicable law and
rules, that it is in the best interest of the city that the contract be
awarded to other than the lowest responsible bidder.
3. In the case of contracts let by other than competitive sealed
bidding for goods or services involving an expenditure of an amount
greater than ten thousand dollars, or for construction involving an
amount greater than fifteen thousand dollars, the contracting entity
shall not award to a proposed contractor who has not agreed to stipulate
to the conditions set forth in this section unless the entity seeking to
use the goods, services or construction determines that the goods,
services or construction are necessary for the entity to perform its
functions and there is no other responsible contractor who will supply
goods, services or construction of comparable quality at a comparable
price. Such determination shall be made in writing and shall be filed in
accordance with rules of the procurement policy board or any rules of
the council relating to procurement, as appropriate, and shall be
published in the City Record.
c. Upon receiving information that a contractor who has made the
stipulation required by this section is in violation thereof, the
contracting entity shall review such information and offer the
contractor an opportunity to respond. If the contracting entity finds
that a violation has occurred, it shall take such action as may be
appropriate and provided for by law, rule or contract, including, but
not limited to, imposing sanctions, seeking compliance, recovering
damages, declaring the contractor in default and/or seeking debarment or
suspension of the contractor.
d. As used in this section, the term "contract" shall not include
contracts with governmental and non-profit organizations, contracts
awarded pursuant to the emergency procurement procedure set forth in
section three hundred fifteen of the charter or in rules of the
procurement policy board or any rules of the council relating to
procurement, as appropriate, or contracts, resolutions, indentures,
declarations of trust or other instruments authorizing or relating to
the authorization, issuance, award, sale or purchase of bonds,
certificates of indebtedness, notes or other fiscal obligations of the
city, provided that the policies of this section shall be considered
when selecting a contractor to provide financial or legal advice, and
when selecting managing underwriters in connection with such activities.
e. The provisions of this section shall not apply to contracts for
which the city receives funds administered by the United States
department of transportation, except to the extent congress has directed
that the department of transportation not withhold funds from states and
localities that choose to implement selective purchasing policies based
on agreement to comply with the MacBride Principles, or to the extent
that such funds are not otherwise withheld by the department of
transportation.
Section 6-116
§ 6-116 Additional contract provisions. a. Every contract shall
contain a provision which permits the agency, in addition to any other
right or remedy, to give notice to the contractor that the agency finds
the contractor's performance to be improper, dilatory or otherwise not
in compliance with the requirements of the contract.
b. The contract shall provide that if such notice is given, upon the
termination of the contract the contractor may be declared not to be a
responsible bidder for a period of time which shall not exceed three
years, following notice and the opportunity for a hearing at which the
contractor shall have the right to be represented by counsel.
c. The provisions of the contract and the procedure set forth therein
for making the finding and declaration referred to in subdivisions a and
b shall be consistent with applicable rules and regulations of the board
of estimate.
Section 6-116.1
§ 6-116.1 Information required to be kept on contractor performance.
All agencies letting contracts shall monitor the performance of every
contractor. Information with respect to contractor performance shall be
maintained by the city at a central location and shall be accessible to
the members of the board of estimate, the members of the city council
and city agencies upon request.
Section 6-116.2.
§ 6-116.2. a. The comptroller and the mayor shall jointly maintain, at
the financial information services agency, a computerized data base.
Such data base shall contain information for every franchise and
concession and every contract for goods or services involving the
expenditure of more than ten thousand dollars or in the case of
construction, repair, rehabilitation or alteration, the expenditure of
more than fifteen thousand dollars, entered into by an agency, New York
city affiliated agency, elected official or the council, including, but
not limited to:
(1) the name, address, and federal taxpayer's identification number of
the contractor, franchisee or concessionaire where available in
accordance with applicable law;
(2) the dollar amount of each contract including original maximum and
revised maximum expenditure authorized, current encumbrance and actual
expenditures;
(3) the type of goods or services to be provided pursuant to the
contract;
(4) the term of the contract, or in the case of a construction
contract the starting and scheduled completion date of the contract and
the date final payment is authorized;
(5) the agency, New York city affiliated agency, elected official or
the council that awarded the contract, franchise or concession and the
contract registration number, if any, assigned by the comptroller;
(6) the manner in which the contractor, franchisee or concessionaire
was selected, including, but not limited to, in the case of a
contractor, whether the contractor was selected through public letting
and if so, whether the contractor was the lowest responsible bidder;
whether the contractor was selected through a request for proposal
procedure, and if so, whether the contractor's response to the request
offered the lowest price option; whether the contractor was selected
without competition or as a sole source; whether the contractor was
selected through the emergency procedure established in the charter or
the general municipal law, where applicable; or whether the contractor
was selected from a list of prequalified bidders, and if applicable,
whether the contractor was the lowest responsible bidder; and
(7) the date of any public hearing held with respect to the contract
and the date and agenda number of action taken with respect to a
concession or franchise by the franchise and concession review
committee; and
(8) the contract budget category to which the contract is assigned,
where applicable.
b. (i) The mayor and comptroller shall be responsible for the
maintenance of a computerized data system which shall contain
information for every contract, in the following manner: the mayor shall
be responsible for operation of the system; the mayor and the
comptroller shall be jointly responsible for all policy decisions
relating to the system. In addition, the mayor and the comptroller shall
jointly review the operation of the system to ensure that the
information required by this subdivision is maintained in a form that
will enable each of them, and agencies, New York city affiliated
agencies, elected officials and the council, to utilize the information
in the performance of their duties. This system shall have access to
information stored on other computerized data systems maintained by
agencies, which information shall collectively include, but not be
limited to:
(1) the current addresses and telephone numbers of:
A. the contractor's principal executive offices and the contractor's
primary place of business in the New York city metropolitan area, if
different,
B. the addresses of the three largest sites at which it is anticipated
that work would occur in connection with the proposed contract, based on
the number of persons to be employed at each site,
C. any other names under which the contractor has conducted business
within the prior five years, and
D. the addresses and telephone numbers of all principal places of
business and primary places of business in the New York city
metropolitan area, if different, where the contractor has conducted
business within the prior five years;
(2) the dun & bradstreet number of the contractor, if any;
(3) the taxpayer identification numbers, employer identification
numbers or social security numbers of the contractor or the division or
branch of the contractor which is actually entering into the contract;
(4) the type of business entity of the contractor including, but not
limited to, sole proprietorship, partnership, joint venture or
corporation;
(5) the date such business entity was formed, the state, county and
country, if not within the United States, in which it was formed and the
other counties within New York State in which a certificate of
incorporation, certificate of doing business, or the equivalent, has
been filed within the prior five years;
(6) the principal owners and officers of the contractor, their dates
of birth, taxpayer identification numbers, social security numbers and
their current business addresses and telephone numbers;
(7) the names, current business addresses and telephone numbers,
taxpayer identification numbers and employer identification numbers of
affiliates of the contractor;
(8) the principal owners and officers of affiliates of the contractor
and their current business addresses and telephone numbers;
(9) the principal owners and officers of every subcontractor;
(10) the type, amount and contract registration number of all other
contracts awarded to the contractor, as reflected in the database
maintained pursuant to subdivision a of this section;
(11) the contract sanction history of the contractor for the prior
five years, including, but not limited to, all cautions, suspensions,
debarments, cancellations of a contract based upon the contractor's
business conduct, declarations of default on any contract made by any
governmental entity, determinations of ineligibility to bid or propose
on contracts and whether any proceedings to determine eligibility to bid
or propose on contracts are pending;
(12) the contract sanction history for the prior five years of
affiliates of the contractor including, but not limited to, all
cautions, suspensions, debarments, cancellations of a contract based
upon such entity's business conduct, declarations of default on any
contract made by any governmental entity, determinations of
ineligibility to bid or propose on contracts and whether any proceedings
to determine eligibility to bid or propose on contracts are pending;
(13) the name and telephone number of the chief contracting officer or
other employee of the agency, elected official or the council
responsible for supervision of those charged with day-to-day management
of the contract;
(14) judgments or injunctions obtained within the prior five years in
any judicial actions or proceedings initiated by any agency, any elected
official or the council against the contractor with respect to a
contract and any such judicial actions or proceedings that are pending;
(15) record of all sanctions imposed within the prior five years as a
result of judicial or administrative disciplinary proceedings with
respect to any professional licenses held by the contractor, or a
principal owner or officer of the contractor;
(16) whether city of New York income tax returns, where required, have
been filed for the past five years;
(17) outstanding tax warrants and unsatisfied tax liens, as reflected
in the records of the city;
(18) information from public reports of the organized crime control
bureau and the New York state organized crime task force which indicates
involvement in criminal activity;
(19) criminal proceedings pending against the contractor, and any
principal owner or officer of such contractor;
(20) record of all criminal convictions of the contractor, any current
principal owner or officer for any crime related to truthfulness or
business conduct and for any other felony committed within the prior ten
years, and of any former principal owner or officer, within the prior
ten years, for any crime related to truthfulness or business conduct and
for any other felony committed while he or she held such position or
status;
(21) all pending bankruptcy proceedings and all bankruptcy proceedings
initiated within the past seven years by or against the contractor and
its affiliates;
(22) whether the contractor has certified that it was not founded or
established or is not operated in a manner to evade the application or
defeat the purpose of this section and is not the successor, assignee or
affiliate of an entity which is ineligible to bid or propose on
contracts or against which a proceeding to determine eligibility to bid
or propose on contracts is pending;
(23) the name and main business address of anyone who the contractor
retained, employed or designated to influence the preparation of
contract specifications or the solicitation or award of this contract.
(ii) When personnel from any agency, elected officials or their staff,
or members of the council or council staff learn that the certification
required by subparagraph twenty-two of paragraph (i) may not be
truthful, the appropriate law enforcement official shall be immediately
informed of such fact and the fact of such notification shall be
reflected in the data base, except when confidentiality is requested by
the law enforcement official.
(iii) Information required from a contractor consisting of a
contractor's social security number shall be obtained by the agency,
elected official or the council entering into a contract as part of the
administration of the taxes administered by the commissioner of finance
for the purpose of establishing the identification of persons affected
by such taxes.
(iv) In the event that procurement of goods, services or construction
must be made on an emergency basis, as provided for in section three
hundred fifteen of the charter, on an accelerated basis as provided for
in section three hundred twenty-six of the charter, or expedited action
is required due to urgent circumstances, or in such other circumstances
as may be determined by rule of the procurement policy board, where
applicable, or any rule of the council relating to procurement, where it
is not feasible to submit the information required by subdivision b
prior to contract award, the required information may be submitted after
award of the contract. However, all of the information required by
subdivision b herein shall be submitted no later than thirty days from
the date of the award. A contractor or subcontractor who fails to
provide such information as required by this paragraph shall be
ineligible to bid or propose on or otherwise be awarded a contract or
subcontract until such information is provided and shall be subject to
such other penalties as may be prescribed by rule of the procurement
policy board, where applicable, or any rule of the council relating to
procurement.
(v) Where a contractor or subcontractor becomes obligated to submit
information required by this subdivision by reason of having been
awarded a contract or subcontract, the value of which, when aggregated
with the value of all other contracts or subcontracts awarded to that
contractor or subcontractor during the immediately preceding
twelve-month period, is valued at one hundred thousand dollars, or more,
such information shall be submitted no later than thirty days after
registration of the contract which resulted in the obligation to submit
such information. A contractor or subcontractor who fails to provide
such information as required by this paragraph shall be ineligible to
bid or propose on a contract or subcontract until such information is
provided and shall be subject to such other penalties as may be
prescribed by rule of the procurement policy board, where applicable, or
any rule of the council relating to procurement.
(vi) For the calendar year commencing on January 1, 1992,
subcontractors shall be required to provide the information required by
subparagraph nine of paragraph i and on or after June 30, 1994,
subcontractors shall be subject to paragraph i in its entirety.
(vii) This subdivision shall not apply to any New York city affiliated
agency, except that such New York city affiliated agency shall report
cautionary information and the name and telephone number of the employee
responsible for responding to inquiries concerning such information.
c. The information maintained pursuant to subdivision b shall be made
accessible to the computerized data system established pursuant to
subdivision a of this section in a form or format agreed upon by the
mayor and the comptroller. The information contained in these
computerized data systems shall be made available to any other data
retrieval system maintained by an agency, New York city affiliated
agency, elected official or the council for the purpose of providing
information regarding contracts, franchises and concessions awarded and
the contractors, franchisees and concessionaires to which they were
awarded. The information concerning the past performance of contractors
that is contained in a computerized data base maintained pursuant to
section 6-116.1 of this code for such purposes shall be made available
to these data systems.
d. All of the information as required by subdivisions a and b
contained in these computerized data bases shall be made available
on-line in read-only form to personnel from any agency or New York city
affiliated agency, elected officials, members of the council and council
staff, and shall be made available to members of the public, in
accordance with sections three hundred thirty four and one thousand
sixty four of the charter and article six of the public officers law.
e. No contract for goods or services involving the expenditure of more
than ten thousand dollars or in the case of construction, repair,
rehabilitation or alteration, the expenditure of more than fifteen
thousand dollars, franchise or concession shall be let by an agency,
elected official or the council, unless the contract manager or other
person responsible for making the recommendation for award has certified
that these computerized data bases and the information maintained
pursuant to section 6-116.1 of this code have been examined. This shall
be in addition to any certifications required by chapter thirteen of the
charter, the rules of the procurement policy board, where applicable, or
any rules of the council relating to procurement.
f. Not later than January thirtieth following the close of each fiscal
year, the comptroller shall publish a summary report setting forth
information derived from the data base maintained pursuant to
subdivision a of this section and the following information for each
franchise, concession or contract for goods or services having a value
of more than ten thousand dollars or in the case of construction, having
a value of more than fifteen thousand dollars, including, but not
limited to:
(1) the types and dollar amount of each contract, franchise or
concession entered into during the previous fiscal year;
(2) the registration number assigned by the comptroller, if any;
(3) the agency, New York city affiliated agency, elected official or
the council entering into the contract, franchise or concession;
(4) the vendor entering into the contract, franchise or concession and
the subcontractors engaged pursuant to each contract;
(5) the reason or reasons why the award of each such contract was
deemed appropriate pursuant to subdivision a of section 312 of the
charter, where applicable; and
(6) the manner in which the contractor, franchisee or concessionaire
was selected, including, but not limited to, in the case of a
contractor, whether the contractor was selected through public letting
and if so, whether the contractor was the lowest responsible bidder;
whether the contractor was selected through a request for proposal
procedure and if so, whether the contractor's response to the request
offered the lowest price option; whether the contractor was selected
without competition or as a sole source; whether the contractor was
selected through the emergency procedure established in the charter or
the general municipal law, where applicable; or whether the contractor
was selected from a list of prequalified bidders, and if applicable,
whether the contractor was the lowest responsible bidder. For
franchises, this information shall also include whether the authorizing
resolution of the council was complied with.
g. Failure by an agency to check a contractor's record in the
computerized data base established pursuant to this section and the
information concerning the contractor that is maintained pursuant to
section 6-116.1 of this chapter or to make the certification set forth
in subdivision d of this section shall not render a contract to which it
is a party void.
h. Except for submissions to elected officials or to the council,
contractors or subcontractors may only be required to submit information
required under subdivision b of this section to a single agency, and any
such submission shall be applicable to all contracts or subcontracts or
bids for contracts or subcontracts of that contractor or subcontractor
with any agency. Any contractor or subcontractor that has submitted to
any agency, elected official or the council, the information required to
be provided in accordance with subdivision b of this section shall be
required to update that information only at three-year intervals, and
except as provided in paragraph iv or v of subdivision b, no contract or
subcontract shall be awarded unless the contractor or subcontractor has
certified that information previously submitted as to those requirements
is correct as of the time of the award of the contract or subcontract.
The contractor or subcontractor may only be required to submit such
updated information to a single agency and such submission shall be
applicable to all contracts or subcontracts or bids for contracts or
subcontracts of that contractor or subcontractor with any agency. The
procurement policy board may, by rule, provide for exceptions to this
subdivision.
i. Except as otherwise provided, for the purposes of subdivision b of
this section,
(1) "affiliate" shall mean an entity in which the parent of the
contractor owns more than fifty percent of the voting stock, or an
entity in which a group of principal owners which owns more than fifty
percent of the contractor also owns more than fifty per cent of the
voting stock;
(2) "cautionary information" shall mean, in regard to a contractor,
any adverse action by any New York city affiliated agency, including but
not limited to poor performance evaluation, default, non-responsibility
determination, debarment, suspension, withdrawal of prequalified status,
or denial of prequalified status;
(3) "contract" shall mean and include any agreement between an agency,
New York city affiliated agency, elected official or the council and a
contractor, or any agreement between such a contractor and a
subcontractor, which (a) is for the provision of goods, services or
construction and has a value that when aggregated with the values of all
other such agreements with the same contractor or subcontractor and any
franchises or concessions awarded to such contractor or subcontractor
during the immediately preceding twelve-month period is valued at one
hundred thousand dollars or more; or (b) is for the provision of goods,
services or construction, is awarded to a sole source and is valued at
ten thousand dollars or more; or (c) is a concession and has a value
that when aggregated with the value of all other contracts held by the
same concessionaire is valued at one hundred thousand dollars or more;
or (d) is a franchise. However, the amount provided for in clause a
herein may be varied by rule of the procurement policy board, where
applicable, or rule of the council relating to procurement, or, for
franchises and concessions, rule of the franchise and concession review
committee, as that amount applies to the information required by
paragraphs 7, 8, 9 and 12 of subdivision b of this section, and the
procurement policy board, where applicable, or the council, or, for
franchises and concessions, the franchise and concession review
committee, may by rule define specifically identified and limited
circumstances in which contractors may be exempt from the requirement to
submit information otherwise required by subdivision b of this section,
but the rulemaking procedure required by chapter forty-five of the
charter may not be initiated for such rule of the procurement policy
board or franchise and concession review committee less than forty-five
days after the submission by the procurement policy board or, for
franchises and concessions, the franchise and concession review
committee, to the council of a report stating the intention to
promulgate such rule, the proposed text of such rule and the reasons
therefor;
(4) "contractor" shall mean and include all individuals, sole
proprietorships, partnerships, joint ventures or corporations who enter
into a contract, as defined in paragraph three herein, with an agency,
New York city affiliated agency, elected official or the council;
(5) "officer" shall mean any individual who serves as chief executive
officer, chief financial officer, or chief operating officer of the
contractor, by whatever titles known;
(6) "New York city affiliated agency" shall mean any entity the
expenses of which are paid in whole or in part from the city treasury
and the majority of the members of whose board are city officials or are
appointed directly or indirectly by city officials, but shall not
include any entity established under the New York city charter, this
code or by executive order, any court or any corporation or institution
maintaining or operating a public library, museum, botanical garden,
arboretum, tomb, memorial building, aquarium, zoological garden or
similar facility;
(7) "parent" shall mean an individual, partnership, joint venture or
corporation which owns more than fifty percent of the voting stock of a
contractor;
(8) "principal owner" shall mean an individual, partnership, joint
venture or corporation which holds a ten percent or greater ownership
interest in a contractor or subcontractor;
(9) "subcontract" shall mean any contract, as defined in paragraph
three herein, between a subcontractor and a contractor; and
(10) "subcontractor" shall mean an individual, sole proprietorship,
partnership, joint venture or corporation which is engaged by a
contractor pursuant to a contract, as defined in paragraph three herein.
j. Notwithstanding any other provision of this section, the
information required to be submitted by New York city affiliated
agencies pursuant to this section shall be submitted in a form or format
and on a schedule to be determined by the mayor and the comptroller. In
no event shall New York city affiliated agencies be required to submit
such information prior to the award of any contract.
k. Notwithstanding any other provision of this section, the
information required to be submitted by New York city affiliated
agencies pursuant to this section shall be required only as to contracts
funded in whole or in part with city funds, although nothing shall
preclude New York city affiliated agencies from submitting information
on contracts funded by other than city funds.
Section 6-117
§ 6-117 Purchases; statement of. The department of citywide
administrative services shall furnish each agency for which it has
purchased supplies, materials and equipment with a monthly statement of
such purchases, with details of the quantities and prices paid, showing
the quantities delivered for the account of such agency.
Section 6-118
§ 6-118 Printing and stationery. The department of citywide
administrative services shall purchase all printing and stationery for
all agencies.
Section 6-119
§ 6-119 Copies; printing of. It shall be unlawful to print, apart from
the City Record, more than two thousand copies of any message of the
mayor or report of the head of any agency, or more than one thousand
copies of any report of a committee of the council.
Section 6-120
§ 6-120 Standards and specifications. The commissioner of citywide
administrative services shall have power to use the laboratory and
engineering facilities of any agency, together with the technical staff
thereof, in connection with work of preparing and adopting standards and
written specifications. The commissioner shall consult freely with the
heads and other officials of the various agencies to determine their
precise requirements, and shall endeavor to prescribe those standards
which meet the needs of the majority of such agencies. After adoption,
each standard specification shall, until revised or rescinded, apply
alike in terms and effect to every future purchase and contract for the
commodity described in such specification. The commissioner of citywide
administrative services, however, may exempt any such agency from the
use of the commodity described in such standard specification.
Section 6-121
§ 6-121 Purchase of low-emission motor vehicles. a. As used in this
section, the terms "as defined" and "as specified" shall mean as defined
and as specified from time to time in the relevant regulations of the
administrator of the United States environmental protection agency.
b. As used in this section, the term "low-emission motor vehicle"
shall mean a self-propelling light duty vehicle, as defined which is
certified in accordance with the terms of subdivision d of this section.
c. Low-emission motor vehicles which meet the standards prescribed by
subdivision e of this section, and which have been determined by the
department of citywide administrative services to be suitable for use as
a substitute for a class or model of motor vehicles presently in use by
the city of New York, shall be purchased by the city for use by the city
government in lieu of other vehicles, provided that the commissioner of
citywide administrative services shall first determine that such
low-emission motor vehicles have procurement and maintenance costs not
substantially greater than those of the class or model of motor vehicles
for which they are to be substituted.
d. The commissioner of environmental protection of the city of New
York shall, upon request of the commissioner of citywide administrative
services, and after such tests as he or she may deem appropriate,
certify as a low-emission motor vehicle any particular class or model of
motor vehicles that:
1. meets either (i) the hydrocarbon and carbon monoxide exhaust
emission standards as defined and as specified for nineteen hundred
seventy-five model year vehicles and the oxides of nitrogen exhaust
emission standard as defined and as specified for the then current model
year or (ii) the oxides of nitrogen exhaust emission standard as defined
and as specified for nineteen hundred seventy-six model year vehicles
and the hydrocarbon and carbon monoxide exhaust emission standards as
defined and as specified for the then current model year; and
2. meets the crankcase emission standard as defined and as specified
and the fuel evaporative emission standard as defined and as specified;
and
3. will not emit an air contaminant not emitted by the class or model
of motor vehicle presently in use in the city of New York unless the
commissioner of environmental protection determines that such air
contaminant will not cause significant detriment to the health, safety,
welfare or comfort of any person, or injury to plant and animal life, or
damage to property or business.
4. After conducting such tests the commissioner of environmental
protection shall advise the commissioner of citywide administrative
services whether such class or model of motor vehicles has been so
certified. Any such certification shall be valid until the end of the
then current model year unless sooner revoked by the commissioner of
environmental protection.
e. The commissioner of environmental protection of the city of New
York shall, upon request of the commissioner of citywide administrative
services, and after such tests as he or she may deem appropriate, advise
the commissioner of citywide administrative services, as to any class or
model of low-emission motor vehicle, with respect to:
(1) the safety of the vehicle;
(2) its performance characteristics;
(3) its reliability potential; and
(4) its fuel availability.
Section 6-123.
§ 6-123. Contractor human rights compliance. a. For purposes of this
section only, the following terms shall have the following meanings:
(1) "Contract" means any written agreement, purchase order or
instrument whereby the city is committed to expend or does expend funds
in return for work, labor, services, supplies, equipment, materials, or
any combination of the foregoing.
(a) For purposes of this section only, unless otherwise required by
law, the term "contract" shall include any city grant, loan, guarantee
or other city assistance for a construction project.
(b) The term "contract" shall not include: (i) contracts for financial
or other assistance between the city and a government or government
agency; or
(ii) contracts, resolutions, indentures, declarations of trust, or
other instruments authorizing or relating to the authorization,
issuance, award, and sale of bonds, certificates of indebtedness, notes
or other fiscal obligations of the city, or consisting thereof.
(2) "Contracting agency" means a city, county, borough, or other
office, position, administration, department, division, bureau, board or
commission, or a corporation, institution or agency of government, the
expenses of which are paid in whole or in part from the city treasury.
(3) "Contractor" means a person who is a party or a proposed party to
a contract with a contracting agency as those terms are defined herein.
b. All contractors doing business with the city without regard to the
dollar amount shall not engage in any unlawful discriminatory practice
as defined and pursuant to the terms of title viii of the administrative
code. Every contract in excess of $50,000 shall contain a provision or
provisions detailing the requirements of this section.
c. The contractor will not engage in any unlawful discriminatory
practice as defined in title viii of the administrative code. In the
case of a contract for supplies or services, the contractor shall
include a provision in any agreement with a first-level subcontractor
for an amount in excess of $50,000 that such subcontractor shall not
engage in such an unlawful discriminatory practice. In the case of a
contract for construction, the contractor shall include a provision in
all subcontracts in excess of $50,000 that the subcontractor shall not
engage in such an unlawful discriminatory practice.
d. Enforcement, remedies, and sanctions. Upon receiving a complaint or
at his or her own instance, the commissioner of business services,
acting pursuant to section 1305 of the charter, may conduct such
investigation as may be necessary to determine whether contractors and
subcontractors are in compliance with the equal employment opportunity
requirements of federal, state and local laws and executive orders. If
the commissioner has reason to believe that a contractor or
subcontractor is not in compliance with the provisions of this section,
or where there has been a final adjudication by the human rights
commission or a court of competent jurisdiction that a contractor has
violated one or more of the provisions of title viii of the
administrative code, as to its work subject to the contract with the
contracting agency, the commissioner of business services shall seek the
contractor's or subcontractor's agreement to adopt and adhere to an
employment program designed to ensure equal employment opportunity,
including but not limited to measures designed to remedy
underutilization of minorities and women in the contractor's or
subcontractor's workforce, and may, in addition, recommend to the
contracting agency that payments to the contractor be suspended pending
a determination of the contractor's or subcontractor's compliance with
such requirements. If the contractor or subcontractor does not agree to
adopt or does not adhere to such a program, the commissioner shall make
a determination as to whether the contractor or subcontractor is in
compliance with the provisions of this section, and shall notify the
head of the contracting agency of such determination and any sanctions,
including the withholding of payment, imposition of an employment
program, finding the contractor to be in default, cancellation of the
contract, or other sanction or remedy provided by law or by contract,
which the commissioner believes should be imposed. The head of the
contracting agency shall impose such sanction unless he or she notifies
the commissioner in writing that the agency head does not agree with the
recommendation, in which case the commissioner and the head of the
contracting agency shall jointly determine any sanction to be imposed.
If the agency head and the commissioner do not agree on the sanction to
be imposed, the matter shall be referred to the mayor, who shall
determine any sanction to be imposed.
e. Nothing in this section shall be construed to limit the city's
authority to cancel or terminate a contract, deny or withdraw approval
to perform a subcontract or provide supplies, issue a non-responsibility
finding, issue a non-responsiveness finding, deny a person or entity
pre-qualification, or otherwise deny a person or entity city business.
Section 6-124
* § 6-124 a. For purposes of this section only, the following terms
shall have the following meanings:
(1) "Contract" means any written agreement, purchase order or
instrument whereby the city is committed to expend or does expend funds
in return for work, labor, services, supplies, equipment, materials, or
any combination of the foregoing.
(2) "Responsible manufacturer" means that the manufacturer of apparel
and textiles is able to demonstrate current compliance with all
applicable wage, health, labor, environmental and safety laws, building
and fire codes and any laws relating to discrimination in hiring,
promotion or compensation on the basis of race, disability, national
origin, gender, sexual orientation or affiliation with any political,
non-governmental or civic group except when federal or state law
precludes the city from attaching the procurement conditions provided
herein. A responsible manufacturer for the purposes of this section
shall not engage in any abuse of its employees except where federal or
state law precludes the city from attaching the conditions provided
herein. A responsible manufacturer for the purposes of this section
shall pay a non-poverty wage as defined herein, and shall not contract
with any subcontractor operating in violation of any provision of this
section.
(3) "Contracting agency" means a city, county, borough,
administration, department, division, bureau, board or commission, or a
corporation, institution or agency of government, that purchases,
leases, or contracts for the purchase or lease of goods or services
financed in whole or in part from the city treasury, except where
partial federal or state funding precludes the city from attaching the
procurement conditions provided herein.
(4) "Contractor" means any supplier, by sale or lease, of apparel or
textiles to a contracting agency, including suppliers of uniforms for
purchase by city employees through any uniform or voucher system, and
any provider of laundering or other services to a contracting agency for
the cleansing, repair, or maintenance of apparel or textiles.
(5) "Subcontractor" means any person or enterprise who contracts with
a contractor, either directly or through other intermediary
subcontractors, for the manufacture or supply in whole or in part or for
the laundering or other servicing of apparel or textiles. Subcontractor
shall include beneficiaries of bankruptcies, assignment, transfer, sales
of operations, or other successorship intended to evade liability or
responsibility for any of the wrongful conduct enumerated in this
section.
(6) "Apparel or textiles" means all articles of clothing, cloth, or
goods produced by weaving, knitting, or felting, or any similar goods.
(7) "Non-poverty wage" means the nationwide hourly wage and health
benefit level sufficient to raise a family of three out of poverty.
(8) "Relative national standard of living index" means a ratio of the
standard of living in a given country to the standard of living in the
United States, when standard of living is defined as real per capita
income multiplied by the percentage of gross domestic product used for
non-military consumption.
(9) "Incentive pay" means any pay system contingent on performance.
b. A contracting agency shall only enter into a contract to purchase
or obtain for any purpose any apparel or textiles from a responsible
manufacturer. The provisions of this section shall apply to every
contract in excess of $2,500.
c. All contractors and subcontractors in the performance of a contract
with a contracting agency shall pay their employees a non-poverty wage.
The comptroller shall determine, and, if deemed necessary, annually
adjust the precise level of the non-poverty wage, and shall ensure that
it is no less than the level of wages and health benefits earned by a
full-time worker that is sufficient to ensure that a family of three
does not live in poverty as measured by the nationwide poverty
guidelines issued annually by the United States department of health and
human services in the federal register, and, in any event, no less than
$8.75 an hour, of which $7.50 must be paid in hourly wages; and, as
applied to employees of contractors and subcontractors outside of the
United States, a comparable nationwide wage and benefit level, adjusted
to reflect that country's level of economic development using a factor
such as the relative national standard of living index in order to raise
a family of three out of poverty. The comptroller shall have the
authority to promulgate such rules as deemed necessary for determining a
non-property wage. For contractors or subcontractors that pay employees
on an incentive pay basis, it shall be sufficient for the purposes of
this section for the contractor or subcontractor to ensure that average
pay for the lowest paid class of those employees engaged in the
performance of a contract with a contracting agency exceeds the
non-poverty wage.
d. A contracting agency shall not enter into a contract to purchase or
obtain for any purpose any apparel or textiles from a contractor unable
to provide certified documentation in writing:
(1) that such apparel and textiles are manufactured in accordance with
the requirements that constitute responsibly manufactured as defined in
this section;
(2) listing the names and addresses of each subcontractor to be
utilized in the performance of the contract;
(3) listing each manufacturing, processing, distributing, storing,
servicing, shipping or other facility or operation of the contractor and
its subcontractors for performance of the contract, and the location of
each such facility;
(4) listing the wages and health benefits by job classification
provided to all employees engaged in the manufacture, distribution or
servicing of apparel and textiles for contracting services at each such
facility.
The contracting agency must maintain this information in the agency
contract file and make it available for public inspection. Such
information shall also be made available to the comptroller's office.
e. A contracting agency shall not contract for apparel and textiles
with any contractor who does not agree to permit independent monitoring
at the request of the contracting agency or the comptroller of their
compliance with the requirements of this section. The contractor shall
be responsible for ensuring that subcontractors comply with the
independent monitoring requirements of this subdivision. If through
independent monitoring it is determined that the contractor or
subcontractor has failed to comply with the provisions of this section,
the costs associated with the independent monitoring to the city shall
be reimbursed by the contractor or subcontractor.
f. The comptroller shall collect and maintain information concerning
the city's apparel and textile contracts that have been awarded and
shall ensure that the information listed in subdivision d of this
section be made available to the public. The comptroller shall allow
interested third parties an opportunity to submit information relating
to the apparel and textile industry and shall review and consider such
submissions as they become available. In October of each year, beginning
one year after the enactment of this section, the comptroller shall
submit a report to the mayor and the council on the information
collected pursuant to this subdivision.
g. Upon information and belief that a contractor or subcontractor may
be in violation of this section, the comptroller shall review such
information and offer the contractor or subcontractor an opportunity to
respond. If the comptroller finds that a violation has occurred, it
shall present evidence of such violation to the contracting agency.
Where such evidence indicates a violation of the subcontractor, the
contractor shall be responsible for such violation. It shall be the duty
of the contracting agency to take such action as may be appropriate and
provided for by law, rule or contract, including, but not limited to,
imposing sanctions, seeking compliance, recovering damages, declaring
the contractor in default and/or seeking debarment or suspension of the
contractor or subcontractor. In circumstances where a contractor or
subcontractor fails to perform in accordance with any of the
requirements of this section, and there is a continued need for the
service, a contracting agency may obtain the required service as
specified in the original contract, or any part thereof, by issuing a
new solicitation, and charging the non-performing contractor or
subcontractor for any difference in price resulting from the new
solicitation, any administrative charge established by the contracting
agency, and shall, as appropriate, invoke such other sanctions as are
available under the contract and applicable law.
h. A contractor shall be liable for a civil penalty of not less than
$5,000 upon a determination that a contractor or subcontractor has been
found, through litigation or arbitration, to have made a false claim
under the provisions of this section with the contracting agency.
i. Every contract for or on behalf of all contracting agencies for the
supply and service of textiles and apparel shall contain a provision or
provisions detailing the requirements of this section.
j. In an investigation conducted under the provisions of this section,
the inquiry of the comptroller shall not extend to work performed more
than three years prior to: (i) the filing of a complaint of any
provision of this section; or (ii) the commencement of the investigation
of the comptroller's own volition, whichever is earlier.
k. Notwithstanding any inconsistent provision of this law or of any
other general, special or local law, ordinance, charter or
administrative code, an employee affected by this law shall not be
barred from the right to recover the difference between the amount paid
to the employee and the amount which should have been paid to the
employee because of the prior receipt by the employee without the
protest of wages paid or on account of the employee's failure to state
orally or in writing upon any payroll or receipt of which the employee
is required to sign that the wages received by the employee are received
under protest, or on account of the employee's failure to indicate a
protest against the amount, or that the amount so paid does not
constitute payment in full of wages due to the employee for the period
covered by such payment.
l. The requirements of this section shall be waived in writing under
the following circumstances:
(1) there is only one prospective contractor willing to enter into a
contract, where it is determined that all bidders to a contract are
deemed ineligible for purposes of this section; or
(2) where it is available from a sole source and the prospective
contractor is not currently disqualified from doing business with the
city; or
(3) the contract is necessary in order to respond to an emergency
which endangers the public health and safety and no entity which
complies with the requirements of this section capable of responding to
the emergency is immediately available; or
(4) where inclusion or application of such provisions will violate or
be inconsistent with the terms and conditions of a grant, subvention or
contract of the United States government or the instructions of an
authorized representative of any such agency with respect to any such
grant, subvention or contract.
m. All waivers shall become part of the contract file of the
contracting agency. Notwithstanding any waiver, the contracting agency
shall take every reasonable measure to contract with a contractor who
best satisfies the requirements of this section.
n. This section shall not apply to any contract with a contracting
agency entered into prior to the effective date of this local law,
except that renewal, amendment or modification of such contract
occurring on or after the effective date shall be subject to the
conditions specified in this section.
o. If any section, subsection, sentence, clause, phrase or other
portion of this local law is, for any reason, declared unconstitutional
or invalid, in whole or in part, by any court of competent jurisdiction
such portion shall be deemed severable, and such unconstitutionality or
invalidity shall not affect the validity of the remaining portions of
this law, which remaining portions shall continue in full force and
effect.
p. Nothing in this section shall be construed to limit the city's
authority to cancel or terminate a contract, deny or withdraw approval
to perform a subcontract or provide supplies, issue a non-responsibility
finding, issue a non-responsiveness finding, deny a person or entity
pre-qualification, or otherwise deny a person or entity city business.
* The validity of local law 20 of 2001 is currently a subject of
disagreement between the Mayor and the City Council. This certification
is not intended as a legal opinion as to the validity of the local law
other than certifying the truth of the facts presented herein.
Section 6-125.
§ 6-125. a. For the purposes of this section only, the following terms
shall have the following meanings:
(1) "City agency" means a city, county, borough, administration,
department, division bureau, board or commission, or a corporation,
institution or agency of government the expenses of which are paid in
whole or in part from the city treasury, but shall not include the
health and hospitals corporation.
(2) "Covered agreement" means any agreement, including but not limited
to, memoranda of understanding, and excluding contracts, entered into on
or after the effective date of the local law that added this section,
between a hospital and a city agency.
(3) "Covered contract" means any contract entered into on or after the
effective date of the local law that added this section, between a
hospital and a city agency.
(4) "Emergency contraception" shall mean one or more prescription
drugs, used separately or in combination, to be administered to or
self-administered by a patient in a dosage and manner intended to
prevent pregnancy when used within a medically recommended amount of
time following sexual intercourse and dispensed for that purpose in
accordance with professional standards of practice, and which has been
found safe and effective for such use by the United States food and drug
administration.
(5) "Hospital" means any facility operating pursuant to article 28 of
the public health law which provides emergency medical care.
(6) "Rape victim" means any female person who alleges or is alleged to
have been raped and presents to a hospital.
b. No city agency shall enter into a covered agreement or covered
contract with any hospital that does not contain a provision whereby
such hospital agrees to inform rape victims presenting to its emergency
department of the availability of emergency contraception and, if
requested, to administer, if medically appropriate, such contraception
in a timely manner.
c. No city agency shall enter into a covered agreement or covered
contract with any hospital that does not contain a provision whereby
such hospital agrees to provide the department of health and mental
hygiene, on an annual basis, a report indicating the following
information with respect to each reporting period: i) the number of rape
victims treated in such hospital's emergency department; ii) the number
of rape victims treated in such hospital's emergency department which
were offered emergency contraception; iii) the number of rape victims
treated in such hospital's emergency department for whom the
administration of emergency contraception was not medically indicated
and a brief explanation of the contraindication; and iv) the number of
times emergency contraception was accepted or declined by a rape victim
treated in such hospital's emergency department.
d. No city agency shall enter into a covered agreement or covered
contract with any hospital that does not contain a provision whereby
such hospital agrees to provide the department of health and mental
hygiene with a copy of its protocol for treatment of victims of sexual
assault, which hospitals are required to establish pursuant to section
405.19 of title 10 of the codes, rules and regulations of the state of
New York; provided however, that such hospital shall be required to
provide such protocol upon amendment or renewal of a covered agreement
or covered contract only if such protocol has been amended since the
date such hospital initially entered into such covered agreement or
covered contract.
e. A hospital shall be liable for a civil penalty of not less than
five thousand dollars upon a determination that such hospital has been
found, through litigation or arbitration, to have made a false claim
with respect to its provision of information to rape victims regarding
the availability of emergency contraception or its provision of
emergency contraception, if medically indicated, to rape victims in a
timely manner.
Section 6-126
§ 6-126 a. This section shall be known and may be cited as the "Equal
Benefits Law."
b. For purposes of this section only, the following terms shall have
the following meanings:
(1) "Contract" means any written agreement, purchase order or
instrument whereby the city is committed to expend or does expend funds
in return for an interest in real property, work, labor, services,
supplies, equipment, materials, construction, construction related
service or any combination of the foregoing.
(2) "Contracting agency" means a city, county, borough, or other
office, position, administration, department, division, bureau, board or
commission, or a corporation, institution or agency of government, the
expenses of which are paid in whole or in part from the city treasury.
(3) "Contractor" means any individual, sole proprietorship,
partnership, joint venture, corporation or other form of doing business.
(4) "Covered contract" means a contract between a contracting agency
and a contractor which by itself or when aggregated with all contracts
awarded to such contractor by any contracting agency during the
immediately preceding twelve months has a value of one hundred thousand
dollars or more.
(5) "Domestic partners" means persons who are domestic partners as
defined in section 3-240(a) of the administrative code, or who have
registered as domestic partners with a contractor pursuant to
subdivision n of this section.
(6) "Employee" means a person employed by a contractor.
(7) "Employment benefits" means benefits including, but not limited
to, health insurance, pension, retirement, disability and life
insurance, family, medical, parental, bereavement and other leave
policies, tuition reimbursement, legal assistance, adoption assistance,
dependent care insurance, moving and other relocation expenses,
membership or membership discounts, and travel benefits provided by a
contractor to its employees.
(8) "Equal benefits" means employment benefits equal to those provided
to employees with spouses and to their spouses.
(9) "Household member coverage" means the provision of equal benefits
to an employee and to one designated member of such employee's household
provided that such household member is eighteen years of age or older,
lives permanently with the employee, is unmarried, is not a dependent of
any other person and is not the tenant or landlord of the employee.
(10) "Implementing agency" means the city chief procurement officer or
any agency or officer that the mayor designates.
c. (1) No contracting agency shall enter into or renew any covered
contract with a contractor that discriminates in the provision of
employment benefits between employees with spouses and employees with
domestic partners and/or between the domestic partners and spouses of
such employees; and unless the contractor certifies that:
(a)(i) it offers equal benefits to employees with domestic partners;
or
(ii) if the contractor is a religious or denominational institution or
organization, or an organization operated for charitable or educational
purposes which is operated, supervised or controlled by or in connection
with a religious organization, and the certification required in
subsection c(1)(a)(i) of this section would, in the opinion of such
contractor, be inconsistent with the religious principles for which such
organization was established or maintained, it offers household member
coverage to its employees, provided that such employees shall not be
required to disclose to the contractor information concerning the nature
of their relationship with a designated household member beyond that
which such contractor deems necessary to determine eligibility for
household member coverage; and
(b) it will not retaliate against an employee in the terms and
conditions of employment in the event that such employee requests equal
benefits or informs the city that such contractor has failed to provide
equal benefits in violation of this section.
(2) Such certification shall be in writing and shall be signed by an
authorized officer of the contractor and delivered, along with a
description of the contractor's employee benefits plan or plans, to the
contracting agency and to the implementing agency prior to entering into
a covered contract. The implementing agency shall reject a contractor's
certification if it determines that such contractor discriminates in the
provision of employment benefits in violation of this section, or if the
implementing agency determines that the contractor was created, or is
being used, for the purpose of evading the requirements of this section.
d. Every covered contract shall contain a provision detailing the
contractor's obligations pursuant to this section, which shall be a
material provision of such contract.
e. The requirements of subdivision c shall apply to the employees of a
contractor who, during the term of such contract, work within the city
of New York, and to those employees of a contractor who work outside of
the city of New York and who work directly on fulfilling the terms of a
covered contract.
f. In the event that a contractor's actual cost of providing an equal
benefit or benefits exceeds that of providing the equivalent spousal
benefit or benefits, such contractor shall not be deemed to have
discriminated in the provision of employment benefits if such contractor
conditions the provision of such equal benefit or benefits upon the
employee agreeing to pay the excess costs.
g. Nothing in this section shall be construed to require a contractor
to pay income tax liabilities incurred through the provision of equal
benefits as required under this section.
h. (1) In the event a contractor is unable to provide a particular
equal benefit or benefits as required pursuant to this section despite
taking all reasonable measures to do so, such contractor shall not be
deemed to have discriminated in the provision of employment benefits for
failure to provide such employment benefit or benefits if such
contractor provides the cash equivalent of such employment benefit or
benefits to the affected employee(s). The contractor shall provide the
implementing agency with sufficient proof of such inability to provide
such benefit or benefits, which shall include the measures taken to
provide such benefit or benefits and the cash equivalent proposed, along
with the certification required pursuant to subdivision c of this
section. The implementing agency shall, based on submitted evidence,
determine whether the contractor's failure to provide such employment
benefit or benefits precludes such contractor from entering into a
covered contract pursuant to the requirements of this section.
(2) In the event that a contractor is unable to provide a particular
equal benefit or benefits as required pursuant to this section because
it would require administrative action that would delay the provision of
such equal benefit or benefits, then the contractor may request an
extension of time to take such administrative action which shall not
exceed three months. Applications for such extensions of time shall be
submitted to the implementing agency, which shall have the discretion to
grant such applications. A contractor may, if necessary, request an
additional extension of time to provide the delayed equal benefit or
benefits. Applications for such additional extensions of time shall be
submitted to the implementing agency, which shall have the discretion to
grant such applications provided that the contractor provides the cash
equivalent of any delayed equal benefit or benefits to the affected
employee(s) during the additional extension period. The implementing
agency shall monitor contracting agencies to which it grants extensions
of time to ensure compliance with the requirements of this section
within such extension periods.
i. Every contractor shall, to the extent permitted by law, provide the
contracting agency and the implementing agency access to its records for
the purpose of audits and/or investigations to ascertain compliance with
the provisions of this section, and upon request shall provide evidence
that the contractor is in compliance with the provisions of this
section.
j. If during the term of a covered contract a contractor fails to
provide equal benefits as required pursuant to this section, or if a
contractor retaliates against an employee in the terms and conditions of
employment for requesting equal benefits or for informing the city that
such contractor has failed to provide equal benefits, such failure
and/or retaliation shall be deemed a material breach of such contract.
Upon receiving information that a contractor has failed to provide equal
benefits as required pursuant to this section and/or retaliated against
an employee in violation of this section, the implementing agency shall
review such information, notify the contractor of such information and
offer the contractor an opportunity to respond. If it is found that a
violation has occurred, the implementing agency shall take such action
as may be appropriate and provided by law, rule or contract, including,
but not limited to, imposing sanctions, seeking compliance, recovering
damages, declaring the contractor in default and/or seeking a finding
that the contractor is not a responsible contractor pursuant to section
335 of the charter. Nothing in this subdivision shall be construed to
limit the remedies a contractor's employee or the domestic partner of
such employee may seek in law or equity in the event of such
contractor's non-compliance.
k. (1) The requirements of this section may be waived by the
implementing agency upon application by a contracting agency under the
following circumstances:
(i) for sole source contracts entered into pursuant to section 321 of
the charter, where the sole source is unwilling to comply with the
requirements of this section; or
(ii) for emergency contracts entered into pursuant to section 315 of
the charter and for which no entity which complies with the requirements
of this section and which is capable of fulfilling such contract is
immediately available; or
(iii) where compliance with the requirements of this section would
violate or be inconsistent with the terms or conditions of a grant,
subvention or contract with a public agency or the instructions of an
authorized representative of any such agency with respect to any such
grant, subvention or contract; or
(iv) where there are no prospective bidders for a contract that are
willing to comply with the requirements of this section and it is
essential for the city to enter into such contract.
(2) All applications for waivers pursuant to this subdivision shall be
made in writing. The implementing agency shall, within a reasonable
period of time, determine whether to grant such waiver applications. All
decisions regarding waivers shall be issued in writing and shall include
the reason for the granting or denial of such application. All decisions
granting waivers shall become part of the relevant contract file.
(3) Beginning twelve months after the effective date of the local law
that added this section and annually thereafter, the implementing agency
shall report to the council regarding the twelve month period
immediately preceding the report, the number and total dollar value of
waivers for which it received applications disaggregated by type of
waiver and contracting agency; the number and total dollar value of
waivers granted disaggregated by type of waiver and contracting agency;
and the number and total dollar value of waivers denied or withdrawn
disaggregated by type of waiver and contracting agency.
l. The requirements of this section shall not apply to contracts
relating to the investment of assets held in trust by the city or to the
investment of city monies.
m. The comptroller shall conduct annual investigations, on a sample
basis, to measure contractor compliance with the requirements of this
section. Contractors shall make such information available as is
necessary to conduct such investigations. Beginning twelve months after
the effective date of the local law that added this section and annually
thereafter, the comptroller shall report the results of such
investigations to the mayor and the council.
n. A contractor may institute an internal registry to allow for the
provision of equal benefits to employees with domestic partners who are
not domestic partners as defined in section 3-240(a) of the
administrative code, or who are located in a jurisdiction where no such
governmental domestic partnership registry exists; provided, however,
that a contractor that institutes such a registry shall not impose
criteria for registration that are more stringent than those required
for domestic partnership registration by the city of New York. A
contractor may also verify the existence of a domestic partnership or
marriage to the extent such verification is undertaken equally for
employees with domestic partners and employees with spouses.
o. Nothing in this section shall be construed to limit the city's
authority to cancel or terminate a contract, deny or withdraw approval
to perform a subcontract or provide supplies, issue a non-responsibility
finding, issue a non-responsiveness finding, deny a person or entity
pre-qualification, or to otherwise deny a person or entity city
business.
p. This section shall only apply to contracts entered into or renewed
on or after the effective date of the local law that added this section.
q. The procurement policy board may promulgate rules to implement the
requirements of this section.
Section 6-128.
* Section 6-128. a. Definitions. For purposes of this section only,
the following terms shall have the following meanings:
(1) "Affiliate" means any person that controls, is controlled by, or
is under common control with another person, including any successors in
interest. Control shall mean ownership of ten percent or more of any
class of outstanding stock of a company or the power to direct or cause
the direction of the management and policies of a person.
(2) "Annual Percentage Rate" means the annual percentage rate for a
home loan calculated according to the provisions of the federal truth in
lending act, as amended by the home ownership and equity protection act
of 1994 (15 U.S.C. § 1601, et seq.), and its implementing regulations,
as said statute or regulations may be amended from time to time.
(3) "Bona Fide Loan Discount Points" means discount points knowingly
paid by the borrower, funded through any source, for the purpose of
reducing, and which in fact result in a bona fide reduction of, the
interest rate or time-price differential applicable to the loan,
provided that the amount of the interest rate reduction purchased by the
discount points is reasonably consistent with established industry norms
and practices.
(4) "City Agency" means a city, county, borough, or other office,
department, division, bureau, board or commission, or a corporation,
institution or agency of government, the expenses of which are paid in
whole or in part from the city treasury.
(5) "Compliance Worksheet" means a form or forms contained in each
file of a high-cost home loan as defined by this section provided by
each lender certifying as to the presence or absence of each fact or
circumstance that could give rise to the classification of the loan as a
high-cost home loan, or a predatory home loan, including, without
limitation, underwriter judgments as to the credit worthiness of the
borrower for the loan and the tangible benefits to the borrower, the
compensation paid directly or indirectly to the mortgage broker for the
loan, if any, whether the high-cost home loan refinances a special
mortgage and whether the high-cost home loan refinances another
high-cost home loan made by the same lender or an affiliate of the
lender.
(6) "Financial Institution" means a bank, savings and loan
association, thrift, credit union, investment company, mortgage banker,
mortgage broker, trust company, savings bank, securities broker,
municipal securities broker, securities dealer, municipal securities
dealer, securities underwriter, municipal securities underwriter,
investment trust, bank holding company, finance company or financial
services holding company.
(7) "First-Lien Home Loan" means a home loan secured by a first lien
on residential real property, a condominium unit or cooperative shares.
(8) "High-Cost Home Loan" means a home loan that meets or exceeds the
threshold set forth in either subparagraph a or b of this definition:
(a) the total points and fees on the loan exceed four percent of the
total loan amount if the total loan amount is fifty thousand dollars or
more; or the greater of five percent of the total loan or one thousand
five hundred dollars, if the total loan amount is less than fifty
thousand dollars; provided that up to and including four bona fide loan
discount points payable by the borrower in connection with the loan
transaction shall be excluded from the calculation of the total points
and fees payable by the borrower, but only if the interest rate from
which the loan's interest rate will be discounted does not exceed by
more than two percentage points the required net yield for a ninety-day
standard mandatory delivery commitment for a reasonably comparable loan
from either the federal national mortgage association or the federal
home loan mortgage corporation, whichever is greater; or
(b) for a first-lien home loan, the annual percentage rate of the home
loan at consummation of the transaction equals or exceeds six percentage
points over the yield on United States treasury securities having
comparable periods of maturity to the loan maturity, measured as of the
fifteenth day of the month immediately preceding the month in which the
application for the extension of credit is received by the lender; or
for a junior-lien home loan, the annual percentage rate of the home loan
at consummation of the transaction equals or exceeds eight percentage
points over the yield on United States treasury securities having
comparable periods of maturity to the loan maturity, measured as of the
fifteenth day of the month immediately preceding the month in which the
application for the extension of credit is received by the lender. For
purposes of subparagraph b of this definition, if the terms of the home
loan offer any initial or introductory period, and the annual percentage
rate is less than that which will apply after the end of such initial or
introductory period, then the annual percentage rate that shall be taken
into account for purposes of this section shall be the rate that is
calculated and disclosed on the initial disclosure statement required
under section 226.6 of title 12 of the code of federal regulations for
the period after the initial or introductory period.
(9) "Home Loan" means a residential mortgage, other than a reverse
mortgage transaction, but including an open-end line of credit, in
which:
(a) the borrower is a natural person;
(b) the loan is secured by a mortgage on real estate upon which there
is located or there is to be located a structure or structures intended
principally for occupancy by from one to four families, or by a
residential condominium or by a cooperative unit, or shares issued in
respect thereof, which is or will be occupied by the borrower as the
borrower's principal residence;
(c) the property is located in the city of New York;
(d) the principal amount of the loan does not exceed the greater of:
(i) the conforming loan size limit for a comparable dwelling as
established from time to time by the federal national mortgage
association; or
(ii) three hundred thousand dollars;
(e) the loan is primarily for personal, family or household purposes;
and
(f) the loan is entered into on or after the date this section takes
effect.
(10) "Junior-Lien Home Loan" means a home loan secured by a lien on
residential real property, condominium unit or cooperative shares that
is junior in priority to a first-lien home loan with respect to such
property.
(11) "Lender" means any person that extends, purchases or invests in,
directly or indirectly, including through collective investment or
securitization entities, one or more home loans, or any person that
arranges, directly or indirectly, including through collective
investment or securitization, for the extension, purchase of or
investment in one or more home loans, including, but not limited to, the
securities trust trustee and underwriter, and any mortgage broker with
respect to home loans. However, for purposes of this definition, a
lender shall not be deemed to be:
(a) collective investment entities, including, without limitation,
investment companies as defined under the Investment Company Act of
1940, hedge funds, bank collective trust funds, offshore funds and
similar entities that are not created to and do not acquire pools of
mortgage loans, or issue securities based on and backed by pools of
mortgage loans, and any passive investor in the interests created
therein that exercises no discretion regarding such interests other than
to buy, hold or sell them;
(b) purchasers of mortgage loans or mortgage related securities where
the seller is obligated by written agreement and, in fact, intends to
repurchase all the loans or securities within 180 days of such sale;
(c) lenders whose interest in high-cost home loans is limited to a
security interest or who acquire title as a result of the foreclosure of
such security interest, except that such lenders shall not extend credit
to a person found to be a predatory lender as defined by this section;
(d) securities broker dealers that trade in but otherwise are not
involved in any material respect in the securitization of the underlying
mortgages; or
(e) any passive investor in securities or interests in securities
based on or backed by a pool of high-cost home loans that exercises no
discretion regarding the securities other than to buy, hold or sell
them.
(12) "Mortgage Broker" means any person engaged in the business of
soliciting, processing, placing, or negotiating home loans who functions
as an intermediary for compensation, paid directly or indirectly,
between the borrower and the lender in the making of a home loan.
(13) "Person" means any natural person, domestic corporation, foreign
corporation, association, syndicate, joint stock company, partnership,
joint venture or unincorporated association, or other like organization,
engaged in a business or commercial enterprise.
(14) "Points and Fees" means:
(a) all items listed in 15 U.S.C. sections 1605(a)(1) through (4),
except interest or the time-price differential;
(b) all charges for items listed under section 226.4(c)(7) of title 12
of the code of federal regulations, as amended from time to time, but
only if the lender receives direct or indirect compensation in
connection with the charge or the charge is paid to an affiliate of the
lender;
(c) all compensation not otherwise specified in this definition paid
directly or indirectly to a mortgage broker, including a broker that
originates a home loan in its own name through an advance of funds and
subsequently assigns the home loan to the person advancing the funds;
(d) the premium of any single-premium credit life, credit disability,
credit property, credit unemployment or other life or health insurance,
including any payments for debt cancellation or suspension, except that
insurance premiums calculated and paid on a monthly basis shall not be
included; and
(e) all prepayment fees or penalties that are charged to the borrower
if the loan refinances a prior loan made by the same lender or an
affiliate of the lender.
(15) "Predatory Lender" means:
(a) a lender that, in the aggregate for such lender and its
affiliates, extends, purchases or invests in, during a twelve-month
period, the lesser of:
(i) ten individual predatory loans, or
(ii) any number of predatory loans constituting five percent of the
total number of home loans made, purchased or invested in during such
twelve-month period by such lender and its affiliates.
(b) Notwithstanding subparagraph a of this definition, any lender
shall not be a predatory lender if:
(i) the lender obtains the approval of the comptroller of the city
of New York for a plan to discontinue the practice of making, purchasing
or otherwise investing in predatory loans by the lender and its
affiliates, and the lender and its affiliates then completely cease
making, purchasing or otherwise investing in predatory loans within 60
days after the plan is approved by the comptroller; and
(ii) the lender and its affiliates remain in compliance with such
plan; provided that no more than one plan may be submitted to the
comptroller on behalf of any lender, except a subsequent plan may be
submitted to the comptroller:
(A) if ten or more years have passed since the same lender submitted a
prior plan pursuant to this section; or
(B) by a person solely in connection with the acquisition of a
predatory lender after the date of submission of a prior plan if such
plan will discontinue the practice of making, purchasing or otherwise
investing in predatory loans by the acquired predatory lender within 90
days of such acquisition; or
(iii) when directly or indirectly purchasing or investing in
high-cost home loans, or arranging for the purchase or investment in
high-cost home loans by collective investment or securitization, the
lender reasonably believes, after reasonable investigation, conducted by
or on behalf of such lender, based upon reasonable procedures consistent
with industry practice for the review of the terms and other
characteristics of home loans in connection with the purchase or
securitization of, or investment in, high-cost home loans generally,
that the home loans purchased or invested in do not constitute predatory
loans as defined by this section. For purposes of this clause iii,
"procedures consistent with industry practice" shall include, but not be
limited to, a random statistical sample of not less than ten percent of
the home loans for real property located in the city of New York
included in the home loan pool to be securitized or purchased, except
that if the lender has an established business relationship with the
originator or wholesaler of the home loans being purchased or
securitized, as demonstrated by the lender having completed not less
than four transactions with said entity during the preceding two years,
the lender may conduct a random statistical sample of not less than five
percent of the home loans described above. Furthermore, for purposes of
this clause, the lender may rely on a complete Compliance Worksheet, as
defined in this section, to establish a reasonable belief that a
high-cost home loan is not a predatory loan as defined in subparagraphs
a, b, d (only with respect to the lender or an affiliate not having
advised or recommended that the borrower obtain a waiver of home loan
counseling), o, p and q of paragraph 16 of this subdivision; or
(iv) the lender is an exempt organization qualified under section
501(c)(3) of the internal revenue code, and operates to remediate
predatory loans with the approval of, or in association with, a city,
state or federal agency.
(16) "Predatory Loan" means any high-cost home loan with one or more
of the following characteristics:
(a) Proceeds of the high-cost home loan are used to pay all or part of
an existing home loan and the borrower does not receive a reasonable and
tangible benefit from the new home loan considering all the
circumstances, including the terms of both the new and existing home
loan and any other debt being refinanced by the new loan, the cost of
the new home loan, and the borrower's circumstances. For purposes of
this subparagraph, there shall be a presumption that the borrower has
received a reasonable and tangible benefit if, at the time the refinance
loan is made, any of the following is true:
(i) as a result of the refinance there is a net reduction in the
borrower's total monthly payments on all debts consolidated into the new
home loan, and this reduction will continue for at least thirty-six
months after the refinance;
(ii) as a result of the refinance there is a reduction in the
borrower's blended interest rate on all debts consolidated into the new
home loan, and it will not take more than five years for the borrower to
recoup the points and fees charged for the refinance; or
(iii) the refinance loan is necessary to prevent default under an
existing home loan or other secured debt of the borrower, provided that
the lender for the refinanced loan is not the same as or an affiliate of
the lender for the existing home loan or other secured debt.
(b) The lender does not reasonably believe at the time it makes the
high-cost home loan that the borrower will be able to make the scheduled
payments, based upon a consideration of the borrower's current and
expected income, current obligations, employment status, and other
financial resources (other than equity in the home being financed).
There shall be a presumption that the borrower is able to make the
scheduled payments if, at the time the loan is made:
(i) the scheduled monthly payments (after giving effect to any index
adjustments with respect to the loan) on the loan (including principal,
interest, taxes, insurance, assessments, condominium fees, cooperative
maintenance expenses) combined with the scheduled payments for all other
debt, do not exceed fifty percent of the borrower's documented and
verified monthly gross income; and
(ii) the borrower has sufficient residual income as defined in the
guidelines established in section 36.4337(e) of title 38 of the code of
federal regulations and United States department of veteran
administration form 26-6393 to pay essential monthly expenses after
paying the scheduled monthly payments and any additional debt; or
(iii) if clauses (i) or (ii) of this subparagraph do not apply, the
home loan shall be a predatory loan unless the lender determines and
documents prior to the closing of the loan that the making of the loan
is justified based upon specific compensating factors, such as the
borrower's long-term credit history, the borrower's demonstrated ability
to make payments under comparable or greater debt obligations to income
ratios, the conservative use of credit standards, the borrower's
significant liquid assets or other reasonable factors.
(c) The lender finances points and fees, as defined in paragraph 14 of
subdivision a of this section, in an amount that exceeds four percent of
the total loan amount for a closed-end high-cost home loan or four
percent of the maximum line of credit amount for an open-end line of
credit.
(d) Prior to making the high-cost home loan, the lender does not
receive a written certification from an independent housing or credit
counselor, approved by the United States department of housing and urban
development, that the borrower received counseling on the advisability
of the loan transaction and the appropriateness of the loan for the
borrower, or waived the loan counseling. Provided that a borrower may
waive the loan counseling required pursuant to this subparagraph only by
contacting such an independent housing or credit counselor by personal
meeting or live telephone conversation at least three days prior to the
closing of the home loan and certifying in a notarized written statement
to the counselor that he or she has elected to waive the loan
counseling, and no such waiver shall be valid if the lender or any of
its affiliates has recommended or advised the borrower to make such
waiver.
(e) More than two periodic payments required under the high-cost home
loan are consolidated and paid in advance from the loan proceeds
provided to the borrower other than a loan issued by or guaranteed by an
instrumentality of the United States or of any state or any city agency,
such as loan products offered by the United States department of
veterans administration, fair housing administration or state of New
York mortgage agency.
(f) Default by the borrower triggers an interest rate increase. This
provision does not apply to periodic interest rate changes in a variable
rate loan otherwise consistent with the provisions of the loan
agreement, provided the change in the interest rate is not occasioned by
the event of a default or the acceleration of the indebtedness.
(g) The lender, at its sole discretion, may accelerate the
indebtedness and demand repayment of the entire outstanding balance of a
high-cost home loan. This prohibition does not apply when repayment of
the loan has been accelerated by bona fide default, pursuant to a
due-on-sale provision, or pursuant to some other provision of the loan
agreement unrelated to the payment schedule, such as bankruptcy or
receivership.
(h) The payment schedule for the high-cost home loan requires regular
periodic payments that cause the principal balance to increase, except
as a result of a temporary forbearance sought by the borrower.
(i) There is a required scheduled payment that is twice as large as
the average of the earlier scheduled payments, unless such increases are
justified by a reamortization as a result of a new withdrawal in an
open-ended line of credit. This provision does not apply:
(i) when the payment schedule is adjusted to the seasonal or
irregular income of the borrower; or
(ii) if the purpose of the loan is a construction bridge loan
connected with the construction of a dwelling intended to become the
borrower's principal residence.
(j) The loan agreement imposes a penalty or fee on the borrower in
violation of section 5-501(3)(b) of the general obligations law or
section 393(2) of the banking law for paying the balance of the loan, in
whole or in part.
(k) The loan agreement contains a mandatory arbitration clause that is
oppressive, unfair, unconscionable, or substantially in derogation of
the rights of the borrower.
(l) Any of the proceeds of the high-cost home loan are paid to either
a home improvement contractor that is an affiliate of the lender or any
home improvement contractor other than:
(i) by an instrument payable solely to the borrower; or
(ii) at the election of the borrower, through a third-party escrow
agent in accordance with terms established in a written agreement signed
by the borrower, the lender and the contractor prior to the
disbursement.
(m) The high-cost home loan finances any credit life, credit
disability, credit property, credit unemployment, health or life
insurance, or proceeds of the loan are used to make payments pursuant to
debt cancellation or suspension agreements. Insurance premiums
calculated and paid on a monthly basis shall not be considered financed
by the home loan.
(n) The borrower is charged any fees or other charges to modify,
renew, extend or amend a high-cost home loan or to defer any payment due
under the terms of the loan if, after the modification, renewal,
extension or amendment, the loan is still a high-cost home loan or, if
no longer a high-cost home loan, the annual percentage rate has not been
decreased by at least two percentage points. For purposes of this
subparagraph, fees shall not include interest that is otherwise payable
and consistent with the provisions of the loan documents. This
subparagraph shall not apply to a home loan where the lender is charging
points and fees in connection with any additional proceeds received by
the borrower in connection with the modification, renewal, extension or
amendment (over and above the current principal balance of the existing
high-cost home loan) provided that the points and fees charged on the
additional sum must reflect the lender's typical point and fee structure
for high-cost home loans.
(o) The high-cost home loan refinances an existing home loan that is a
special mortgage originated, subsidized or guaranteed by or through a
state, tribal or local government, or non profit organization, which
bears either a below-market interest rate at the time of origination, or
has nonstandard payment terms beneficial to the borrower, such as
payments that vary with income, are limited to a percentage of income,
or where no payments are required under specified conditions, and where,
as a result of the refinancing, the borrower would lose one or more of
the benefits of the special mortgage, unless the lender is provided
prior to the loan closing documentation by an independent housing or
credit counselor, approved by the United States department of housing
and urban development, or the lender who originally made the special
mortgage, that a borrower has received home loan counseling on the
advantages and disadvantages of the refinancing. There shall be no
waiver of the home loan counseling requirement of this subparagraph.
(p) The lender charges points and fees on a high-cost home loan that
refinances a prior high-cost home loan extended by the same lender or an
affiliate of the lender and the refinancing occurs within five years of
the extension of the prior home loan.
(q) The home loan is secured as a result of fraudulent or deceptive
marketing or sales efforts.
(r) The home loan violates any applicable provision of the federal
truth in lending act, as amended by the home ownership and equity
protection act of 1994 (15 U.S.C. 1601, et seq.), the federal real
estate settlement procedures act of 1974 (12 U.S.C. § 2601, et seq.), or
any regulations implementing these statutes, or the restrictions and
limitations on high-cost home loans in the general regulations of the
New York state banking board (3 NYCRR Part 41), as these statutes and
these regulations may be amended from time to time.
b. City Financial Assistance. (1) No city agency shall approve, grant,
award, pay, distribute or issue any city financial assistance to a
financial institution where the financial institution or an affiliate of
the financial institution is a predatory lender as defined by this
section.
(2) As a condition to receiving any form of financial assistance from
a city agency, a financial institution shall provide a statement to the
city agency certifying that neither the financial institution nor any of
its affiliates is or will become a predatory lender. The statement shall
be certified by the chief executive or chief financial officer of the
institution, or the designee of any such person, and shall be made a
part of the award, grant or assistance agreement. A violation of any
provision of the certified statement shall constitute a material
violation of the conditions of the award, grant or assistance agreement.
(3) After the approval or issuance of an award, grant, or any other
financial assistance, the comptroller may conduct an investigation
pursuant to subdivision f of this section to determine whether a
financial institution or any of its affiliates is a predatory lender as
defined by this section. Upon determining that the financial institution
or its affiliate is a predatory lender, and where no cure is effected or
corrective plan filed pursuant to subparagraph b of paragraph three of
subdivision f of this section and approved by the comptroller, the
comptroller shall provide evidence to the city agency that approved or
issued the financial assistance that the financial institution or its
affiliate is a predatory lender and request in writing that the city
agency take the appropriate actions to rescind or otherwise void the
award, grant or assistance. Upon receipt of the comptroller's request,
the city agency shall then make a finding whether or not the financial
institution or its affiliate is a predatory lender in violation of this
section. Upon making a finding of violation, the city agency shall take
such action as may be appropriate and provided for by law, rule or
contract, including, but not limited to: declaring the financial
institution in default of the award, grant or financial assistance
agreement; imposing sanctions; recovering the funds advanced; or
requiring repayment of any taxes or interest abated or deferred. Within
sixty days of receiving notification from the comptroller, the city
agency shall place a written explanation in the financial institution's
file regarding any action the city agency has taken pursuant to this
section, or the reasons no action was taken. Copies of the written
explanation shall be immediately forwarded to the comptroller and to the
city council. Nothing in this paragraph shall preclude a city agency, in
the absence of a request from the comptroller, from investigating and
making a determination whether or not a financial institution or its
affiliate is a predatory lender in violation of this section.
(4) For the purposes of this section, city financial assistance shall
include, but not be limited to, tax abatements (including, but not
limited to, abatements of property, sales or mortgage recording taxes),
cash payments or grants.
(5) Nothing in this section shall operate to impair any contract or
agreement regarding financial assistance in effect on the date this
section takes effect, except that renewal, amendment or modification of
such contract or agreement occurring on or after the enactment of this
section shall be subject to all conditions specified in this section.
(6) Notwithstanding any city laws, rules or regulations to the
contrary, any financial institution or its affiliate that has been found
by a city agency to be a predatory lender shall be prohibited from
applying for or receiving any city financial assistance from any city
agency for a period of three years from the date of the last
disbursement or approval of an award, grant or other financial
assistance, or from the date of the finding, whichever is later.
c. City Contracts. (1) No city agency shall enter into a contract for
goods or services with a financial institution or an affiliate of a
financial institution where either the financial institution or its
affiliate is a predatory lender as defined by this section.
(2) As a condition of contracting with a city agency, the financial
institution or its affiliate shall provide a statement to the city
agency certifying that neither the financial institution nor any of its
affiliates is or will become a predatory lender. The statement shall be
certified by the chief executive or chief financial officer of the
institution or affiliate, or the designee of any such person, and shall
be made a part of the contract or agreement. A violation of any
provision of the certified statement shall constitute a material breach
of the contract.
(3) During the period of a city contract, the comptroller may conduct
an investigation pursuant to subdivision f of this section to determine
whether a financial institution or one of its affiliates is a predatory
lender as defined by this section. Upon determining that the financial
institution or its affiliate is a predatory lender, and where no cure is
effected or corrective plan filed pursuant to subparagraph b of
paragraph three of subdivision f of this section and approved by the
comptroller, the comptroller shall provide evidence to the city agency
that issued the contract that the financial institution or its affiliate
is a predatory lender and request in writing that the city agency take
the appropriate actions to rescind or otherwise void the contract. Upon
receipt of the comptroller's request, the city agency that issued the
contract shall then make a finding whether or not the financial
institution or its affiliate is a predatory lender in violation of this
section. Upon making a finding of violation, the city agency shall take
such action as may be appropriate and provided for by law, rule or
contract, including, but not limited to: declaring the financial
institution or the affiliate in default; arranging for the alternate
procurement of the goods or services to which such contract relates in
such manner as to prevent any loss to the city agency that otherwise
might result from the immediate cessation of the contract; imposing
sanctions; or recovering damages. Within sixty days of receiving
notification from the comptroller, the city agency shall place a written
explanation in the financial institution's or affiliate's contract file
regarding any action the city agency has taken pursuant to this section,
or the reasons no action was taken. Copies of the written explanation
shall be immediately forwarded to the comptroller and to the city
council. Nothing in this paragraph shall preclude a city agency, in the
absence of a request from the comptroller, from investigating and making
a determination whether or not a financial institution or its affiliate
is a predatory lender in violation of this section.
(4) This subdivision shall not apply to any contract evidencing or
establishing the terms of any debt obligations issued by or on behalf of
the city agency, but shall apply to contracts with respect to agency,
underwriting and other services provided in connection with any issuance
thereof.
(5) Nothing in this section shall operate to impair any contract in
effect on the date this section takes effect, except that renewal,
amendment or modification of such contract occurring on or after the
enactment of this section shall be subject to all conditions specified
in this section.
(6) Nothing in this section shall be construed to limit the authority
to cancel or terminate a contract, deny or withdraw approval to perform
a subcontract or provide supplies, issue a non-responsibility finding,
issue a non-responsiveness finding, deny a person or entity
pre-qualification, or otherwise deny a person or entity city business.
(7) Notwithstanding any city laws, rules or regulations to the
contrary, any financial institution or affiliate that has been found by
a city agency to be a predatory lender shall be prohibited from
contracting with any city agency for a period of three years from the
termination date of the contract or the date of the finding, whichever
is later.
d. Deposits. (1) A financial institution that is a predatory lender as
defined by this section, or that has affiliates that are predatory
lenders, shall not be a depository for the funds of any city agency.
(2) As a condition for being a depository of city agency funds, the
financial institution shall provide a statement to the city banking
commission certifying that neither the financial institution nor any of
its affiliates is or will become a predatory lender. The statement shall
be certified by the chief executive or chief financial officer of the
institution, or the designee of any such person, and shall constitute a
material provision of the deposit contract or agreement.
(3) The comptroller shall have the authority to investigate a
financial institution that is a depository for city funds or its
affiliates pursuant to subdivision f of this section to determine
whether the financial institution or any of its affiliates is a
predatory lender as defined by this section. Upon determining that the
financial institution or its affiliate is a predatory lender, and where
no cure is effected or corrective plan filed pursuant to subparagraph b
of paragraph three of subdivision f of this section and approved by the
comptroller, the comptroller shall provide evidence to the banking
commission that the financial institution or its affiliate is a
predatory lender and request that the banking commission revoke the
designation of the financial institution as a depository pursuant to
section 1524 of the city charter. The banking commission shall then make
a finding whether the financial institution or its affiliate is a
predatory lender pursuant to this section and is in violation of its
certification pursuant to section 1524(2)(a)(4) of the city charter.
Upon making a finding of violation, the banking commission shall take
appropriate action to revoke the financial institution's or affiliate's
designation as a depository of the funds of any city agency.
e. Investments. (1) The comptroller may, in his or her discretion,
recommend that city moneys or funds not be invested or permitted to
remain invested in the stocks, securities or other obligations of any
financial institution that is a predatory lender or of an affiliate of a
predatory lender.
(2) The comptroller, when investing city funds in a financial
institution or an affiliate of the financial institution, may consider
the institution or affiliate's compliance with federal, state and local
laws or regulations governing predatory lending. The comptroller, in his
or her discretion and in accordance with his or her sound investment
judgment, may remove investments with financial institutions or their
affiliates that fail to comply with such federal, state or local laws or
regulation. Provided that in cases where the comptroller decides, in the
exercise of his or her discretion and sound investment judgment, not to
remove investments in a financial institution or its affiliate that is a
predatory lender as defined by this section, the comptroller shall
immediately place a written explanation in the financial institution or
affiliate's file regarding the reasons for his or her decision not to
remove the investments, and forward a copy of the written explanation to
the city council.
f. Enforcement. (1) The comptroller shall have the authority to
investigate whether financial institutions or their affiliates are
predatory lenders as defined in this section.
(2) Whenever the comptroller has reason to believe that a financial
institution or its affiliate has violated any provisions of this
section, or upon a verified complaint in writing by an aggrieved
borrower, the comptroller may conduct an investigation to determine
whether a violation has occurred. The verified complaint shall, at a
minimum, describe the violation and contain a release signed by the
borrower authorizing the comptroller to obtain or otherwise gain access
to all loan documents pertaining to the complaint and to any other
records, files or information deemed necessary by the comptroller to
conduct the investigation. An investigation by the comptroller may
include, but is not limited to, reviewing information from regulatory or
oversight agencies regarding lending or other activities of a financial
institution as it relates to high-cost home loans, and investigating
verified complaints from borrowers that a financial institution has
engaged in predatory lending practices.
(3) (a) Upon the commencement of an investigation, the comptroller
shall notify the financial institution or affiliate in writing, and
allow the financial institution or affiliate an opportunity to respond.
If the financial institution or affiliate denies the allegations or
fails to respond within thirty days of the receipt of written notice,
the comptroller shall determine whether the financial institution has
violated the provisions of this section.
(b) If the financial institution or affiliate has been found to have
violated the provisions of this section, the financial institution or
affiliate shall have thirty days to cure the violation or to submit to
the comptroller for his or her approval a corrective plan to discontinue
the predatory lending practices according to clauses i and ii of
subparagraph b of paragraph fifteen of subdivision a of this section.
Upon good cause shown, the comptroller may extend the initial thirty-day
period up to an additional thirty days.
(c) If the financial institution or affiliate fails to cure the
violation within the thirty days or to submit and obtain the
comptroller's approval for a corrective plan pursuant to this section,
the comptroller shall inform the appropriate city agency or the banking
commission, as applicable, and request that it take action pursuant to
either paragraph 3 of subdivision b, paragraph 3 of subdivision c, or
paragraph 3 of subdivision d of this section. Until the comptroller
gives notice to the applicable city agency or banking commission
pursuant to this subparagraph, the comptroller shall hold confidential
any information he receives, gathers, produces, collects or generates as
a result of any investigation pursuant to this section. However, nothing
herein shall restrict the comptroller from exchanging information with
government agencies in the furtherance of an investigation pursuant to
this section.
(4) Any person found to have made a false statement in a certification
required under this section shall be liable to the city for a civil
penalty of not less than $25,000 in addition to the other remedies that
the city agency may have under this local law.
* NB Enacted without section heading.
Section 6-129.
§ 6-129. Participation by minority-owned and women-owned business
enterprises and emerging business enterprises in city procurement.
a. Programs established. There are hereby established a program, to be
administered by the department of small business services in accordance
with the provisions of this section, designed to enhance participation
by minority-owned and women-owned business enterprises in city
procurement and a program, also to be administered by such department in
accordance with the provisions of this section, designed to enhance
participation by emerging business enterprises in city procurement.
b. Policy. It is the policy of the city to seek to ensure fair
participation in city procurement; and in furtherance of such policy to
fully and vigorously enforce all laws prohibiting discrimination, and to
promote equal opportunity in city procurement by vigorously enforcing
the city's contractual rights and pursuing its contractual remedies. The
program established pursuant to this section is intended to address the
impact of discrimination on the city's procurement process, and to
promote the public interest in avoiding fraud and favoritism in the
procurement process, increasing competition for city business, and
lowering contract costs.
c. Definitions. For purposes of this section, the following terms
shall have the following meaning:
(1) "Agency" means a city, county, borough, or other office, position,
administration, department, division, bureau, board or commission, or a
corporation, institution or agency of government, the expenses of which
are paid in whole or in part from the city treasury.
(2) "Agency chief contracting officer" means the individual to whom an
agency head has delegated authority to organize and supervise the
agency's procurement activity.
(3) "Availability rate" means the percentage of business enterprises
within an industry classification that are owned by minorities, women or
individuals who are socially and economically disadvantaged willing and
able to perform agency contracts.
(4) "Bidder" means any person submitting a bid or proposal in response
to a solicitation for such bid or proposal from an agency.
(5) "Bidders list" or "proposers list" means a list maintained by an
agency that includes persons from whom bids or proposals can be
solicited.
(6) "City" means the city of New York.
(7) "City chief procurement officer" means the individual to whom the
mayor has delegated authority to coordinate and oversee the procurement
activity of mayoral agency staff, including the agency chief contracting
officers and any offices that have oversight responsibility for
procurement.
(8) "Commercially useful function" means a real and actual service
that is a distinct and verifiable element of the work called for in a
contract. In determining whether an MBE, WBE or EBE is performing a
commercially useful function, factors including but not limited to the
following shall be considered:
(a) whether it has the skill and expertise to perform the work for
which it is being utilized, and possesses all necessary licenses;
(b) whether it is in the business of performing, managing or
supervising the work for which it has been certified and is being
utilized; and
(c) whether it purchases goods and/or services from another business
and whether its participation in the contract would have the principal
effect of allowing it to act as a middle person or broker in which case
it may not be considered to be performing a commercially useful function
for purposes of this section.
(9) "Commissioner" shall mean the commissioner of small business
services.
(10) "Construction" means construction, reconstruction, demolition,
excavation, renovation, alteration, improvement, rehabilitation, or
repair of any building, facility, physical structure of any kind.
(11) "Contract" means any agreement, purchase order or other
instrument whereby the city is committed to expend or does expend funds
in return for goods, professional services, standard services, or
construction.
(12) "Contractor" means a person who has been awarded a contract by a
city agency.
(13) "Direct subcontractor" means a person who has entered into an
agreement with a contractor to provide services or perform work that is
required pursuant to a contract with a city agency.
(14) "Director" means an individual designated by the mayor to perform
the oversight functions of the director described in this section, who
either reports directly to the mayor or is a commissioner.
(15) "Directory" means a list prepared by the division of firms
certified pursuant to section 1304 of the charter.
(16) "Division" shall mean the division of economic and financial
opportunity within the department of small business services.
(17) "EBE" means an emerging business enterprise certified in
accordance with section 1304 of the charter.
(18) "Geographic market of the city" means the following counties:
Bronx, Kings, New York, Queens, Richmond, Nassau, Putnam, Rockland,
Suffolk and Westchester within the State of New York; and Bergen,
Hudson, and Passaic within the state of New Jersey.
(19) "Goal" means a numerical target.
(20) "Graduate MBE," "graduate WBE" or "graduate EBE" means an MBE,
WBE or EBE which shall have been awarded contracts by one or more
agencies within the past three years where the total city funding from
the expense and capital budgets for such contracts was equal to or
greater than fifty million dollars and whose size has exceeded the size
standards established for its industry by the United States small
business administration for three years.
(21) "Human services" means services provided to third parties,
including social services such as day care, foster care, home care,
homeless assistance, housing and shelter assistance, preventive
services, youth services, and senior centers; health or medical services
including those provided by health maintenance organizations; legal
services; employment assistance services, vocational and educational
programs; and recreation programs.
(22) "Indirect subcontractor" means a person who has entered into an
agreement with a direct subcontractor to provide services or perform
work that is required pursuant to the direct subcontractor's contract
with a contractor.
(23) "Industry classification" means one of the following
classifications:
(a) construction;
(b) professional services;
(c) standard services; and
(d) goods.
(24) "Joint venture" means an association, of limited scope and
duration, between two or more persons who have entered into an agreement
to perform and/or provide services required by a contract, in which each
such person contributes property, capital, effort, skill and/or
knowledge, and in which each such person is entitled to share in the
profits and losses of the venture in reasonable proportion to the
economic value of its contribution.
(25) "MBE" means a minority-owned business enterprise certified in
accordance with section 1304 of the charter.
(26) "Minority group" means Black Americans; Asian Americans, and
Hispanic Americans, provided that the commissioner shall be authorized
to add additional groups to this definition upon a finding that there is
statistically significant disparity between the availability of firms
owned by individuals in such a group and the utilization of such firms
in city procurement.
(27) "Non-certified firm" means a business enterprise that has not
been certified as an MBE, WBE or EBE in accordance with section 1304 of
the charter.
(28) "Person" means any business, individual, partnership,
corporation, firm, company, or other form of doing business.
(29) "Professional services" means services that require specialized
skills and the exercise of judgment, including but not limited to
accountants, lawyers, doctors, computer programmers and consultants,
architectural and engineering services, and construction management
services.
(30) "Qualified joint venture agreement" means a joint venture between
one or more MBEs, WBEs, and/or EBEs and another person, in which the
percentage of profit or loss to which the certified firm or firms is
entitled or exposed for participation in the contract, as set forth in
the joint venture agreement, is at least 25% of the total profit or
loss.
(31) "Scope of work" means specific tasks required in a contract
and/or services or goods that must be provided to perform specific tasks
required in a contract.
(32) "Standard services" means services other than professional
services and human services.
(33) "Utilization rate" means the percentage of total contract
expenditures expended on contracts or subcontracts with firms that are
owned by women, minorities, or individuals who are socially and
economically disadvantaged, respectively, in one or more industry
classifications.
(34) "WBE" means a women-owned business enterprise certified in
accordance with section 1304 of the charter.
d. Citywide goals. (1) The citywide contracting participation goals
for MBEs, WBEs and EBEs, which may be met through awards of prime
contracts or subcontracts as described in subdivision j of this section,
shall be as follows:
For construction contracts:
Category: Participation goal:
Black Americans 8% of total annual
agency expenditures on such contracts
Asian Americans 8% of total annual agency
expenditures on such contracts
Hispanic Americans 4% of total annual agency
expenditures on such contracts
Women 18% of total annual agency
expenditures on such contracts
Emerging 6% of total annual agency expenditures
on such contracts
For professional services contracts:
Category: Participation goal:
Black Americans 12% of total annual agency
expenditures on such contracts
Hispanic Americans 8% of total annual agency
expenditures on such contracts
Women 37% of total annual agency
expenditures on such contracts
Emerging 6% of total annual agency expenditures
on such contracts
For standard services contracts:
Category: Participation goal:
Black Americans 12% of total annual agency
expenditures on such contracts
Asian Americans 3% of total annual agency
expenditures on such contracts
Hispanic Americans 6% of total annual agency
expenditures on such contracts
Women 10% of total annual agency
expenditures on such contracts
Emerging 6% of total annual agency expenditures
on such contracts
For goods contracts under one hundred thousand dollars:
Category: Participation goal:
Black Americans 7% of total annual agency
expenditures on such contracts
Asian Americans 8% of total annual agency
expenditures on such contracts
Hispanic Americans 5% of total annual agency
expenditures on such contracts
Women 25% of total annual agency
expenditures on such contracts
Emerging 6% of total annual agency expenditures
on such contracts
(2) (a) The division and the city chief procurement officer shall
develop a citywide utilization plan for procurements of goods.
(b) Agencies shall develop agency utilization plans pursuant to
subdivision g of this section. The citywide goals shall not be summarily
adopted as goals for all annual agency utilization plans; rather, goals
for such plans may be set at levels higher, lower, or the same as the
citywide goals, subject to the approval of the commissioner as described
in paragraph three of subdivision g of this section. When setting its
goals, each agency shall consider the citywide goals, the size and
nature of its own procurement portfolio, and the availability of MBEs,
WBEs and EBEs with the capacity to perform the specific types and scale
of work for which the agency anticipates it will solicit procurements
during the year. Agencies shall seek to ensure substantial progress
toward the attainment of each of these goals in as short a time as
practicable.
(3) The citywide goals shall not be summarily adopted as goals for
individual procurements; rather, as set forth in subdivision i of this
section, goals for such procurements may be set at levels higher, lower,
or the same as the citywide goals. In setting such goals, each agency
shall take into account the citywide goals and the agency's annual
utilization plan, the size and nature of the procurement, and the
availability of MBEs, WBEs and EBEs with the capacity to perform the
specific types and scale of work involved in its procurements.
(4) (a) No later than 2015, the commissioner, in consultation with the
city chief procurement officer, shall, for each industry classification
and each minority group, review and compare the availability rates of
firms owned by minorities and women to the utilization rates of such
firms in agency contracts and direct subcontracts, and shall on the
basis of such review and any other relevant information, where
appropriate, revise by rule the citywide participation goals set forth
in this subdivision. In making such revision, the commissioner shall
consider the extent to which discrimination continues to have an impact
on the ability of minorities and women to compete for city contracts and
subcontracts. The commissioner shall submit the results of such review
and any proposed revisions to the participation goals to the speaker of
the council at least sixty days prior to publishing a proposed rule that
would revise participation goals. Such review shall thereafter be
conducted at least once every two years.
(b) No later than 2015, the commissioner shall review information
collected by the department to determine the availability and
utilization of EBEs, and shall on the basis of such review and any other
relevant information, where appropriate, revise by rule the citywide
participation goals set forth in this subdivision. Such revised goals
shall be set at a level intended to assist in overcoming the impact of
discrimination on such businesses. Such review shall be conducted in
2015 and at least once every two years thereafter.
e. Responsibilities of the division.
(1) The division shall create and maintain and periodically update
directories by industry classification of MBEs, WBEs, and EBEs which it
shall supply to all agencies, post on its website and on other relevant
city websites and make available for dissemination and/or public
inspection at its offices and other locations within each borough.
(2) The division shall make its resources available to assist agencies
and contractors in (i) determining the availability of MBEs, WBEs, and
EBEs to participate in their contracts as prime contractors and/or
subcontractors; and (ii) identifying opportunities appropriate for
participation by MBEs, WBEs, and EBEs in contracts.
(3) The division shall develop and maintain relationships with
organizations representing contractors, including MBEs, WBEs, and EBEs,
and solicit their support and assistance in efforts to increase
participation of MBEs, WBEs, and EBEs in city procurement.
(4) The division shall coordinate with city and state entities that
maintain databases of MBEs, WBEs, and EBEs and work to enhance city
availability data and directories.
(5) The division shall keep agency M/WBE officers informed of
conferences, contractor fairs, and other services that are available to
assist them in pursuing the objectives of this section.
(6) The division shall conduct, coordinate and facilitate technical
assistance and educational programs for MBEs, WBEs, and EBEs and other
contractors designed to enhance participation of MBEs, WBEs, and EBEs in
city procurement. The division shall further develop a clearinghouse of
information on programs and services available to MBEs, WBEs, and EBEs.
The division shall conduct meetings with MBEs, WBEs and EBEs to discuss
what agencies look for in evaluating bids and proposals. The division
shall also educate prime contractors on opportunities to partner or
subcontract with certified MBEs, WBEs and EBEs.
(7) The division shall develop standardized forms and reporting
documents for agencies and contractors to facilitate the reporting
requirements of this section.
(8) The division shall direct and assist agencies in their efforts to
increase participation by MBEs, WBEs, and EBEs in any city-operated
financial, technical, and management assistance program.
(9) The division shall study and recommend to the commissioner methods
to streamline the M/WBE and EBE certification process.
(10) Each fiscal year the division, in consultation with the city
chief procurement officer, shall audit at least 5% of all open contracts
for which contractor utilization plans have been established in
accordance with subdivision i of this section and 5% of all contracts
awarded to MBEs, WBEs, and EBEs to assess compliance with this section.
All solicitations for contracts for which contractor utilization plans
are to be established shall include notice of potential audit.
(11) The division shall assist agencies in identifying and seeking
ways to reduce or eliminate practices such as bonding requirements or
delays in payment by prime contractors that may present barriers to
competition by MBEs, WBEs, and EBEs.
(12) The division shall encourage prime contractors to enter joint
venture agreements with MBEs, WBEs and EBEs.
(13) (a) The division shall, upon reviewing applications for
certification and recertification, determine whether a firm qualifies as
a graduate MBE, WBE or EBE.
(b) The division shall promulgate regulations establishing a process
by which a certified MBE, WBE or EBE may challenge a determination that
it qualifies as a graduate MBE, WBE or EBE.
(c) At any time more than two years after the division has determined
that a firm qualifies as a graduate MBE, WBE or EBE, the firm may apply
to have such designation lifted. The division shall lift the designation
if the firm demonstrates that it has been below the size standards
established by the United States small business administration for its
industry for a period of two years or more.
f. Responsibilities of agency M/WBE officers. Each agency head shall
designate a deputy commissioner or other executive officer to act as the
agency M/WBE officer who shall be directly accountable to the agency
head concerning the activities of the agency in carrying out its
responsibilities pursuant to this section, including the
responsibilities relating to EBE participation. The duties of the M/WBE
officer shall include, but not be limited to:
(1) creating the agency's utilization plan in accordance with
subdivision g of this section;
(2) acting as the agency's liaison with the division;
(3) acting as a liaison with organizations and/or associations of
MBEs, WBEs, and EBEs, informing such organizations and/or associations
of the agency's procurement procedures, and advising them of future
procurement opportunities;
(4) ensuring that agency bid solicitations and requests for proposals
are sent to MBEs, WBEs, and EBEs in a timely manner, consistent with
this section and rules of the procurement policy board;
(5) referring MBEs, WBEs, and EBEs to technical assistance services
available from agencies and other organizations;
(6) reviewing requests for waivers and/or modifications of
participation goals and contractor utilization plans in accordance with
paragraphs 11 and/or 12 of subdivision i of this section;
(7) working with the division and city chief procurement officer in
creating directories as required pursuant to subdivision k of this
section. In fulfilling this duty, the agency M/WBE officer shall track
and record each contractor that is an MBE, WBE or EBE and each
subcontractor hired pursuant to such officer's agency contracts that is
an MBE, WBE or EBE, and shall share such information with the director,
the commissioner, and the city chief procurement officer;
(8) for contracts for which contractor utilization plans have been
established pursuant to subdivision i of this section, monitoring each
contractor's compliance with its utilization plan by appropriate means,
which shall include, but need not be limited to, job site inspections,
contacting MBEs, WBEs and EBEs identified in the plan to confirm their
participation, and auditing the contractor's books and records;
(9) monitoring the agency's procurement activities to ensure
compliance with its agency utilization plan and progress towards the
participation goals as established in such plan;
(10) providing to the city chief procurement officer information for
the reports required in subdivision l of this section and providing any
other plans and/or reports required pursuant to this section or
requested by the director and/or the city chief procurement officer; and
(11) participating in meetings required pursuant to subdivision m of
this section.
g. Agency utilization plans.
(1) Beginning May 15, 2006, and on April 1 of each year thereafter,
each agency which, during the fiscal year which ended on June 30 of the
preceding year, has made procurements in excess of five million dollars,
without counting procurements that are exempt pursuant to paragraph two
of subdivision q of this section, shall submit an agency utilization
plan for the fiscal year commencing in July of the year when such plan
is to be submitted to the commissioner. Upon approval by the
commissioner such plan shall be submitted to the speaker of the council.
Each such plan shall, at a minimum, include the following:
(a) the agency's participation goals for MBEs, WBEs and EBEs for the
year, provided however, that when setting its goals, each agency shall
consider the citywide goals, the size and nature of its own procurement
portfolio (excluding contracts described in paragraph two of subdivision
q of this section), and the availability of MBEs, WBEs and EBEs with the
capacity to perform the specific types and scale of work for which the
agency anticipates it will solicit procurements during the year;
(b) an explanation for any agency goal that is different than the
participation goal for the relevant group and industry classification as
determined pursuant to subdivision d of this section;
(c) a list of the names and titles of agency personnel responsible for
implementation of the agency utilization plan;
(d) methods and relevant activities proposed for achieving the
agency's participation goals; and
(e) any other information which the agency or the commissioner deems
relevant or necessary.
(2) An agency utilization plan shall set forth specific participation
goals for MBEs, WBEs and/or EBEs for purchases of professional services,
standard services, construction and goods valued at or below twenty
thousand dollars, and for purchases of professional services, standard
services, construction and goods valued at or below one hundred thousand
dollars. When setting its goals for such purchases, in addition to the
factors set forth in paragraph (1) of this subdivision, each agency
shall specifically consider the potential for such purchases to provide
opportunities for MBEs, WBEs and EBEs to develop greater capacity,
thereby increasing competition for city procurements.
(3) An agency utilization plan may be amended from time to time to
reflect changes in the agency's projected expenditures or other relevant
circumstances and resulting changes in such agency's participation
goals. Such amendments shall be submitted to the commissioner, the city
chief procurement officer and the speaker of the council at least thirty
days prior to implementation.
(4) Prior to approving individual agency utilization plans, the
commissioner, in consultation with the city chief procurement officer,
shall consider whether such plans viewed in the aggregate establish any
goals exceeding the corresponding citywide goals set forth in
subdivision d of this section. If any aggregated goals are found to
exceed the corresponding citywide goal, the commissioner shall require
agencies to adjust their goals so that plans, viewed in the aggregate,
do not establish goals exceeding the citywide goals. Nothing in this
paragraph shall be construed to limit the awards of contracts and
subcontracts that may be made to MBEs, WBEs and EBEs without using
goals.
(5) The commissioner, in consultation with the city chief procurement
officer, shall, no later than July 31 of each year, publish on the
division's website a plan and schedule for each agency detailing the
anticipated contracting actions for the upcoming fiscal year that form
the basis for the agency utilization plan of each such agency. The plan
and schedule shall include information specific to each prospective
invitation for bids, request for proposal, or other solicitation,
including, but not limited to, the specific type and scale of the
services and/or goods to be procured, the term of the proposed contract,
the method of solicitation the agency intends to utilize, and the
anticipated fiscal year quarter of the planned solicitation.
h. Achieving agency participation goals.
(1) Each agency head shall be directly accountable for the goals set
forth in his or her agency's utilization plan.
(2) Each agency shall make all reasonable efforts to meet the
participation goals established in its agency utilization plan. Agencies
shall, at a minimum, use the following methods to achieve participation
goals:
(a) Agencies shall engage in outreach activities to encourage MBEs,
WBEs and EBEs to compete for all facets of their procurement activities,
including contracts awarded by negotiated acquisition, emergency and
sole source contracts, and each agency shall seek to utilize MBEs, WBEs
and/or EBEs for all types of goods, services and construction they
procure.
(b) Agencies shall encourage eligible businesses to apply for
certification as MBEs, WBEs and EBEs and inclusion in the directories of
MBEs, WBEs and EBEs. Agencies shall also encourage MBEs, WBEs and EBEs
to have their names included on their bidders lists, seek
pre-qualification where applicable, and compete for city business as
contractors and subcontractors. Agencies are encouraged to advertise
procurement opportunities in general circulation media, trade and
professional association publications and small business media, and
publications of minority and women's business organizations, and send
written notice of specific procurement opportunities to minority and
women's business organizations.
(c) All agency solicitations for bids or proposals shall include
information referring potential bidders or proposers to the directories
of MBEs, WBEs and EBEs prepared by the division.
(d) In planning procurements, agencies shall consider the effect of
the scope, specifications and size of a contract on opportunities for
participation by MBEs, WBEs and EBEs.
(e) Prior to soliciting bids or proposals for contracts valued at over
ten million dollars, other than contracts for capital projects valued at
over twenty-five million dollars and contracts that are exempt pursuant
to paragraph two of subdivision q of this section, an agency shall
submit the bid or proposal to the city chief procurement officer for a
determination whether it is practicable to divide the proposed contract
into smaller contracts and whether doing so will enhance competition for
such contracts among MBEs, WBEs and EBEs and other potential bidders or
proposers. If the city chief procurement officer determines that it is
both practicable and advantageous in light of cost and other relevant
factors to divide such contracts into smaller contracts, then he or she
shall direct the agency to do so.
(f) Agencies shall examine their internal procurement policies,
procedures and practices and, where practicable, address those elements,
if any, that may negatively affect participation of MBEs, WBEs and EBEs
in city procurement.
i. Participation goals for contracts for construction and professional
and standard services.
(1) Prior to issuing the solicitation of bids or proposals for
individual contracts, agencies shall establish participation goals for
MBEs, WBEs and/or EBEs. Such goals may be greater than, less than or the
same as the relevant citywide goal or goals established pursuant to
subdivision d of this section. Taking into account the factors listed in
this subdivision, an agency may establish a goal for a procurement that
may be achieved by a combination of prime contract and subcontract
dollars, a combination of construction and services performed pursuant
to the contract, and/or a combination of MBEs, WBEs and/or EBEs.
Alternatively, an agency may establish specific goals for particular
types of services, and/or goals for particular types of certified firms.
In determining the participation goals for a particular contract, an
agency shall consider the following factors:
(a) the scope of work;
(b) the availability of MBEs, WBEs and EBEs able to perform the
particular tasks required in the contract;
(c) the extent to which the type and scale of work involved in the
contract present prime contracting and subcontracting opportunities for
amounts within the capacity of MBEs, WBEs and EBEs;
(d) the agency's progress to date toward meeting its annual
participation goals through race-neutral, gender-neutral and other
means, and the agency's expectations as to the effect such methods will
have on participation of MBEs, WBEs and EBEs in the agency's future
contracts; and
(e) any other factors the contracting agency deems relevant.
(2) A contracting agency shall not be required to establish
participation goals for
(i) procurements described in subdivision q of this section; or
(ii) when the agency has already attained the relevant goal in its
annual utilization plan, or expects that it will attain such goal
without the use of such participation goals.
(3) For each contract in which a contracting agency has established
participation goals, such agency shall state in the solicitation for
such contract that bidders and/or proposers shall be required to agree
as a material term of the contract that the contractor shall meet the
participation goals unless such goals are waived or modified by the
agency in accordance with this section. A contractor that is an MBE, WBE
or EBE shall be permitted to count its own participation toward
fulfillment of the relevant participation goal, provided that the value
of such a contractor's participation shall be determined by subtracting
from the total value of the contract any amounts that the contractor
pays to direct subcontractors. A contractor that is a qualified joint
venture shall be permitted to count a percentage of its own
participation toward fulfillment of the relevant participation goal. The
value of such a contractor's participation shall be determined by
subtracting from the total value of the contract any amounts that the
contractor pays to direct subcontractors, and then multiplying the
remainder by the percentage to be applied to total profit to determine
the amount to which an MBE, WBE or EBE is entitled pursuant to the joint
venture agreement. Notwithstanding any provision of this paragraph to
the contrary, a contractor's achievement of participation goals shall be
determined as described in paragraph two of subdivision j of this
section.
(4) For each contract in which participation goals are established,
the agency shall include in its solicitation and/or bidding materials a
referral to the directories prepared by the division pursuant to this
section.
(5) For each contract for which participation goals are established,
the contractor shall be required to submit with its bid or proposal a
contractor utilization plan indicating:
(a) whether the contractor is an MBE, WBE, EBE, or a qualified joint
venture;
(b) the percentage of work it intends to award to direct
subcontractors; and
(c) in cases where the contractor intends to award direct
subcontracts, a description of the type and dollar value of work
designated for participation by MBEs, WBEs and/or EBEs, and the time
frames in which such work is scheduled to begin and end.
When the contractor utilization plan indicates that the bidder or
proposer does not intend to meet the participation goals, the bid or
proposal shall not be deemed responsive unless the agency has granted a
pre-award request for change pursuant to paragraph 11 of this
subdivision.
(6) (a) For each contract for which a contractor utilization plan has
been submitted, the contracting agency shall require that within thirty
days of the issuance of notice to proceed, and at least once per year
thereafter, the contractor submit a list of persons to which it intends
to award subcontracts within the next twelve months. In the event that a
contracting agency disapproves a contractor's selection of a
subcontractor or subcontractors, the contracting agency shall allow such
contractor a reasonable time to propose alternate subcontractors.
(b) The contracting agency may also require the contractor to report
periodically about the contracts awarded by its direct subcontractors to
indirect subcontractors.
(7) For each contract for which a contractor utilization plan has been
submitted, the contractor shall, with each voucher for payment, and/or
periodically as the agency may require, submit statements, certified
under penalty of perjury, which shall include, but not be limited to,
the total amount the contractor paid to its direct subcontractors, and,
where applicable pursuant to subparagraph (1) of paragraph (1) of
subdivision j of this section, the total amount direct subcontractors
paid to indirect subcontractors, the names, addresses and contact
numbers of each MBE, WBE or EBE hired as a subcontractor by the
contractor or any of the contractor's direct subcontractors, as well as
the dates and amounts paid to each MBE, WBE or EBE. The contractor shall
also submit, along with its voucher for final payment, the total amount
it paid to subcontractors, and, where applicable pursuant to
subparagraph (1) of paragraph (1) of subdivision j of this section, the
total amount its direct subcontractors paid directly to their indirect
subcontractors; and a final list, certified under penalty of perjury,
which shall include the name, address and contact information of each
subcontractor that is an MBE, WBE or EBE, the work performed by, and the
dates and amounts paid to each.
(8) If payments made to, or work performed by, MBEs, WBEs or EBEs are
less than the amount specified in the contractor's utilization plan, the
agency shall take appropriate action in accordance with subdivision o of
this section, unless the contractor has obtained a modification of its
utilization plan pursuant to paragraph 12 of this subdivision.
(9) When advertising a solicitation for bids or proposals for a
contract for which a participation goal has been established, agencies
shall include in the advertisement a general statement that the contract
will be subject to participation goals for MBEs, WBEs and/or EBEs.
(10) In the event that a contractor with a contract that includes a
contractor utilization plan submits a request for a change order the
value of which exceeds the greater of ten percent of such contract or
$500,000, the agency shall review the scope of work for the contract,
and the scale and types of work involved in the change order, and
determine whether the participation goals should be modified.
(11) Requests from bidders or proposers for changes in participation
goals.
(a) A bidder or proposer may request that an agency change the
participation goal or goals established for the procurement on the
grounds that goals are unreasonable in light of the availability of
certified firms to perform the services required, or by demonstrating
that it has legitimate business reasons for proposing a lower level of
subcontracting in its utilization plan.
(b) If the contracting agency determines that the participation goals
established for the procurement are unreasonable in light of the
availability of certified firms to perform the services required, it
shall revise the solicitation and extend the deadline for bids and
proposals.
(c) Subject to subparagraph (d) of this paragraph, the contracting
agency may grant a full or partial waiver of the participation goals to
a bidder or proposer who demonstrates that it has legitimate business
reasons for proposing the level of subcontracting in its utilization
plan. The contracting agency shall make its determination in light of
factors that shall include, but not be limited to, whether the bidder or
proposer has the capacity and the bona fide intention to perform the
contract without any subcontracting, or to perform the contract without
awarding the amount of subcontracts represented by the participation
goals. In making such determination, the agency may consider whether the
utilization plan is consistent with past subcontracting practices of the
bidder or proposer, whether the bidder or proposer has made efforts to
form a joint venture with a certified firm, and whether the bidder or
proposer has made good faith efforts to identify portions of the
contract that it intends to subcontract. The city chief contracting
officer shall notify the council of any such waiver granted with respect
to a registered contract in the quarterly report required pursuant to
subdivision 1 of this section.
(d) The agency M/WBE officer shall provide written notice of requests
for a full or partial waiver of the participation goals to the division
and the city chief procurement officer and shall not approve any such
request without the approval of the city chief procurement officer,
provided that the city chief procurement officer, upon adequate
assurances of an agency's ability to administer its utilization plan in
accordance with the provisions of this section, may determine that
further approval from the city chief procurement officer is not required
with respect to such requests for an agency's contracts or particular
categories of an agency's contracts. The city chief procurement officer
shall notify the speaker of the council in writing in the quarterly
report required pursuant to subdivision 1 of this section following the
registration of a contract for which a request for a full or partial
waiver of a participation goal was granted, provided that where an
agency has been authorized to grant waivers without approval of the
chief procurement officer, such notice shall be provided to the speaker
of the council by the agency. Such notification shall include, but not
be limited to, the name of the contractor, the original participation
goal, the waiver request, including all documentation, and an
explanation for the approval of such request.
(12) Modification of utilization plans at contractor's request or
agency's initiative. (a) A contractor may request modification of its
utilization plan after the award of a contract. Subject to subparagraph
(b) of this paragraph, an agency may grant such request if it determines
that such contractor has established, with appropriate documentary and
other evidence, that it made all reasonable, good faith efforts to meet
the goals set by the agency for the contract. In making such
determination, the agency shall consider evidence of the following
efforts, as applicable, along with any other relevant factors:
(i) The contractor advertised opportunities to participate in the
contract, where appropriate, in general circulation media, trade and
professional association publications and small business media, and
publications of minority and women's business organizations;
(ii) The contractor provided notice of specific opportunities to
participate in the contract, in a timely manner, to minority and women's
business organizations;
(iii) The contractor sent written notices, by certified mail or
facsimile, in a timely manner, to advise MBEs, WBEs or EBEs that their
interest in the contract was solicited;
(iv) The contractor made efforts to identify portions of the work that
could be substituted for portions originally designated for
participation by MBEs, WBEs and/or EBEs in the contractor utilization
plan, and for which the contractor claims an inability to retain MBEs,
WBEs or EBEs;
(v) The contractor held meetings with MBEs, WBEs and/or EBEs prior to
the date their bids or proposals were due, for the purpose of explaining
in detail the scope and requirements of the work for which their bids or
proposals were solicited;
(vi) The contractor made efforts to negotiate with MBEs, WBEs and/or
EBEs as relevant to perform specific subcontracts, or act as suppliers
or service providers;
(vii) Timely written requests for assistance made by the contractor to
the agency M/WBE liaison officer and to the division; and
(viii) Description of how recommendations made by the division and the
contracting agency were acted upon and an explanation of why action upon
such recommendations did not lead to the desired level of participation
of MBEs, WBEs and/or EBEs.
(b) The agency M/WBE officer shall provide written notice of requests
for such modifications to the division and the city chief procurement
officer and shall not approve any such request for modification without
the approval of the city chief procurement officer, provided that the
city chief procurement officer, upon adequate assurances of an agency's
ability to administer its utilization plan in accordance with the
provisions of this section, may determine that further approval from the
city chief procurement officer is not required with respect to such
requests for an agency's contracts or particular categories of an
agency's contracts. The city chief procurement officer, shall notify the
speaker of the council in writing within seven days of the approval of a
request for modification of a utilization plan, provided that where an
agency has been authorized to grant modifications without approval of
the chief procurement officer, such notice shall be provided to the
speaker of the council by the agency. Such notification shall include,
but not be limited to, the name of the contractor, the original
utilization plan, the modification request, including all documentation,
and an explanation for the approval of such request.
(c) An agency may modify the participation goals established for a
procurement when the scope of the work has been changed by the agency in
a manner that affects the scale and types of work that the contractor
indicated in its contractor utilization plan would be awarded to
subcontractors.
(d) The agency M/WBE officer shall provide written notice to the
contractor of its determination that shall include the reasons for such
determination.
(13) For each contract in which a contracting agency has established
participation goals, the agency shall evaluate and assess the
contractor's performance in meeting each such goal. Such evaluation and
assessment shall be a part of the contractor's overall contract
performance evaluation required pursuant to section 333 of the charter.
j. Determining credit for MBE, WBE and EBE participation.
(1) An agency's achievement of its annual goals shall be calculated as
follows:
(a) The dollar amount that an agency has paid or is obligated to pay
to a prime contractor that is an MBE, WBE or EBE, reduced by the dollar
amount the contractor has paid or is obligated to pay its direct
subcontractors upon their completion of work, shall be credited toward
the relevant goal. Where an agency has paid or is obligated to pay a
prime contractor that is both an MBE and a WBE, such amount shall be
credited toward the relevant goal for MBEs or the goal for WBEs.
(b) Except as provided in subparagraph (c) of this paragraph, the
total dollar amount that a prime contractor of an agency has paid or is
obligated to pay to a direct subcontractor that is an MBE, WBE or EBE
shall be credited toward the relevant goal. Where such a contractor has
paid or is obligated to pay a direct subcontractor that is both an MBE
and a WBE, such amount shall be credited toward the relevant goal for
MBEs or the goal for WBEs.
(c) In the case of contracts of the types identified pursuant to
subparagraph (l) of this paragraph, the total dollar amount that a prime
contractor of an agency has paid or is obligated to pay a direct
subcontractor that is an MBE, WBE, or EBE, reduced by the dollar amount
the direct subcontractor has paid or is obligated to pay its indirect
subcontractors upon completion of work, shall be credited toward the
relevant goal. Where such a contractor has paid or is obligated to pay a
direct contractor that is both an MBE and a WBE, such amount shall be
credited toward the relevant goal for MBEs or the goal for WBEs.
(d) In the case of contracts of the types identified pursuant to
subparagraph (1) of this paragraph, the total dollar amount that a
direct subcontractor of the prime contractor has paid or is obligated to
pay to an indirect subcontractor that is an MBE, WBE or EBE shall be
credited toward the relevant goal. Where such a contractor has paid or
is obliged to pay an indirect contractor that is both an MBE and a WBE,
such amount shall be credited toward the relevant goal for MBEs or the
goal for WBEs.
(e) For requirements contracts, credit shall be given for the actual
dollar amount paid under the contract.
(f) Where one or more MBEs, WBEs or EBEs is participating in a
qualified joint venture, the amounts that the joint venture is required
to pay its direct subcontractors shall be subtracted as provided in
subparagraph (a) of this paragraph, and then a percentage of the
remaining dollar amount of the contract equal to the percentage of total
profit to which MBEs, WBEs or EBEs are entitled pursuant to the joint
venture agreement shall be credited toward the relevant goal. Where such
a participant in a joint venture is both an MBE and a WBE, such amount
shall be credited toward the relevant goal for MBEs or the goal for
WBEs.
(g) No credit shall be given for participation in a contract by an
MBE, WBE or EBE that does not perform a commercially useful function.
(h) No credit shall be given for the participation in a contract by
any company that has not been certified as an MBE, WBE or EBE in
accordance with section 1304 of the charter.
(i) In the case of a contract for which the contractor is paid on a
commission basis, the dollar amount of the contract may be determined on
the basis of the commission earned or reasonably anticipated to be
earned under the contract.
(j) No credit shall be given to a contractor for participation in a
contract by a graduate MBE, WBE or EBE.
(k) The participation of a certified company shall not be credited
toward more than one participation goal.
(1) The city chief procurement officer may identify types of contracts
where payments to indirect subcontractors shall be credited toward the
relevant participation goals.
(2) A contractor's achievement of its participation goals established
in its utilization plan shall be calculated as follows:
(a) A contractor's use of direct subcontractors and their indirect
subcontractors toward achievement of each goal established in its
utilization plan shall be calculated in the same manner as described for
calculating the achievement of agency utilization goals as described in
paragraph (1) of this subdivision, except that a contractor's use of a
subcontractor that is both an MBE and a WBE shall not be credited toward
the contractor's achievement of more than one goal;
(b) A contractor that is an MBE, WBE or EBE shall be permitted to
count its own participation toward fulfillment of the relevant
participation goal, provided that the value of such a contractor's
participation shall be determined by subtracting from the total value of
the contract any amounts that the contractor pays to direct
subcontractors, and provided further that a contractor that is both an
MBE and a WBE shall not be credited for its participation toward more
than one goal;
(c) No credit shall be given to the contractor for the participation
of a company that is not certified in accordance with section 1304 of
the charter before the date that the subcontractor completes the work
under the subcontract.
(d) A contractor that is a qualified joint venture shall be permitted
to count a percentage of its own participation toward fulfillment of the
relevant participation goal. The value of such a contractor's
participation shall be determined by subtracting from the total value of
the contract any amounts that the contractor pays to direct
subcontractors, and then multiplying the remainder by the percentage to
be applied to total profit to determine the amount to which an MBE, WBE
or EBE is entitled pursuant to the joint venture agreement; provided
that where such a participant in a joint venture is both an MBE and a
WBE, such amount shall not be credited toward more than one goal.
k. Small purchases.
Whenever an agency solicits bids or proposals for small purchases
pursuant to section three hundred fourteen of the charter, the agency
shall maintain records identifying the MBEs, WBEs and EBEs it solicited,
which shall become part of the contract file.
l. Compliance reporting.
(1) The city chief procurement officer, in consultation with the
division, shall prepare and submit quarterly reports to the speaker of
the council as described in this section. Preliminary reports containing
information for the fiscal year in progress shall be submitted to the
speaker of the council by January first, April first, and July first of
each year, and a final report containing information for the preceding
fiscal year shall be submitted to the speaker of the council by October
first of each year. The reports, which shall also be posted on the
division's website, shall contain the following information,
disaggregated by agency:
(a) the number and total dollar value of contracts awarded,
disaggregated by industry classification and size of contract, including
but not limited to, contracts valued at or below twenty thousand
dollars, contracts valued above twenty thousand dollars and at or below
one hundred thousand dollars, contracts valued above one hundred
thousand dollars and at or below one million dollars, contracts valued
above one million dollars and at or below five million dollars,
contracts valued above five million dollars and at or below twenty five
million dollars, and contracts valued above twenty five million dollars;
(b) for those contracts for which an agency set participation goals in
accordance with subdivision i of this section:
(i) The number and total dollar amount of such contracts disaggregated
by industry classification, size of contract and status as MBE, WBE,
EBE, or non-certified firm, and further disaggregated by minority and
gender group, and the number and dollar value of such contracts that
were awarded to firms that are certified both as MBEs and WBEs;
(ii) the number and total dollar value of such contracts that were
awarded to qualified joint ventures and the total dollar amount
attributed to the MBE, WBE or EBE joint venture partners, disaggregated
by minority and gender group, size of contract and industry
classification, and the number and dollar value of such contracts that
were awarded to firms that are certified both as MBEs and WBEs;
(iii) The number and total dollar value of subcontracts approved
during the reporting period that were entered into pursuant to contracts
for which participation requirements under this section have been
established (including both contracts awarded during the current
reporting period and those awarded in earlier reporting periods that
remain open during the current reporting period), and the number and
total dollar amount of such subcontracts awarded to MBEs, WBEs and EBEs,
disaggregated by minority and gender group, size of subcontract and
industry classification, and the number and dollar value of such
subcontracts that were awarded to firms that are certified both as MBEs
and WBEs;
(iv) a list of the requests for full or partial waivers of
participation requirements for such contracts made pursuant to paragraph
11 of subdivision i of this section and the determinations made with
respect to such requests, and the number and dollar amount of those
contracts for which such waivers were granted, disaggregated by industry
classification; and
(v) a list of the requests for modification of participation
requirements for such contracts made pursuant to paragraph 12 of
subdivision i of this section and the determinations made with respect
to such requests, and the number and dollar amount of those contracts
for which such modifications were granted, disaggregated by industry
classification;
(c) a detailed list of each complaint received pursuant to paragraph 1
of subdivision o of this section which shall, at a minimum, include the
nature of each complaint and the action taken in investigating and
addressing such complaint including whether and in what manner the
enforcement provisions of subdivision o of this section were invoked and
the remedies applied;
(d) a detailed list of all non-compliance findings made pursuant to
paragraph 4 of subdivision o of this section and actions taken in
response to such findings;
(e) the number of firms certified or recertified in accordance with
section 1304 of the charter during the six months immediately preceding
such report;
(f) the number and percentage of contracts audited pursuant to section
paragraph 10 of subdivision e of this section and a summary of the
results of each audit.
(g) a summary of efforts to reduce or eliminate barriers to
competition as required pursuant to paragraph 11 of subdivision e of
this section;
(h) a list of all solicitations submitted to the city chief
procurement officer pursuant to subparagraph e of paragraph 2 of
subdivision h of this section and a summary of the determination made
regarding each such submission; and
(i) any other information as may be required by the director and/or
the commissioner.
(2) The annual reports submitted in October shall, in addition,
contain a determination made by the director and the commissioner, as to
whether each agency has made substantial progress toward achieving its
utilization goals and whether the city has made substantial progress
toward achieving the citywide goals established pursuant to subdivision
d of this section.
(3) If an agency that has submitted an agency utilization plan
pursuant to subdivision g of this section fails to achieve its
utilization goal, the agency head shall prepare and submit to the
director, the commissioner, the city chief procurement officer, and the
speaker of the council by October first a performance improvement plan
which shall describe in detail the efforts such agency intends to
undertake to increase M/WBE participation.
(4) The data that provide the basis for the reports required by this
subdivision shall be made available electronically to the council at the
time the reports are submitted.
m. Agency compliance.
(1) Each agency shall submit to the commissioner and the city chief
procurement officer such information as is necessary for the city chief
procurement officer to complete his or her reports as required in
subdivision l of this section. The director, the commissioner, and the
city chief procurement officer shall review each agency's submissions.
The director shall convene the agency M/WBE officers for those agencies
that have submitted utilization plans pursuant to subdivision g of this
section as often as the director deems necessary, but no less frequently
than once per quarter, in order to have agency M/WBE officers (i)
discuss the results of the reports required in subdivision 1 of this
section; (ii) offer detailed information concerning their effectuation
of their performance improvement plans and any additional efforts
undertaken to meet goals established in agency utilization plans; (iii)
share the practices that have yielded successes in increasing M/WBE
participation; and (iv) devise strategic plans to improve the
performance of those failing to meet goals established in agency
utilization plans. No less frequently than twice per year, agency heads
for those agencies that have submitted utilization plans pursuant to
subdivision g of this section shall join such quarterly meetings.
Whenever it has been determined that an agency is not making adequate
progress toward the goals established in its agency utilization plan,
the director, the commissioner, and the city chief procurement officer
shall act to improve such agency's performance, and may take any of the
following actions:
(a) require the agency to submit more frequent reports about its
procurement activity;
(b) require the agency to notify the director, the commissioner, and
the city chief procurement officer, prior to solicitation of bids or
proposals for, and/or prior to award of, contracts in any category where
the agency has not made adequate progress toward achieving its
utilization goals;
(c) reduce or rescind contract processing authority delegated by the
mayor pursuant to sections 317 and 318 of the charter; and
(d) any other action the director, the commissioner, and the city
chief procurement officer deem appropriate.
(2) Noncompliance. Whenever the director, the city chief procurement
officer, or the commissioner finds that an agency has failed to comply
with its duties under this section, he or she shall attempt to resolve
such noncompliance informally with the agency head. In the event that
the agency fails to remedy its noncompliance after such informal
efforts, the director and the city chief procurement officer shall
submit such findings in writing to the mayor and the speaker of the
council, and the mayor shall take appropriate measures to ensure
compliance.
(3) Failure by an agency to submit information required by the
director, the division, or the city chief procurement officer, in
accordance with this section, including but not limited to the
utilization plan required pursuant to subdivision g of this section,
shall be deemed noncompliance.
n. Pre-qualification. An agency establishing a list of pre-qualified
bidders or proposers may deny pre-qualification to prospective
contractors who fail to demonstrate in their application for
pre-qualification that they have complied with applicable federal, state
and local requirements for participation of MBEs, WBEs and EBEs in
procurements. A denial of pre-qualification may be appealed pursuant to
applicable procurement policy board rules.
o. Enforcement.
(1) Any person who believes that a violation of the requirements of
this section, rules promulgated pursuant to its provisions, or any
provision of a contract that implements this section or such rules,
including, but not limited to, any contractor utilization plan, has
occurred may submit a complaint in writing to the division, the city
chief procurement officer and the comptroller. The division shall
promptly investigate such complaint and determine whether there has been
a violation.
(2) Any complaint alleging fraud, corruption or other criminal
behavior on, the part of a bidder, proposer, contractor, subcontractor
or supplier shall be referred to the commissioner of the department of
investigation.
(3) Contract award.
(a) When an agency receives a protest from a bidder or proposer
regarding a contracting action that is related to this section, the
agency shall send copies of the protest and any appeal thereof, and any
decisions made on the protest or such appeal, to the division and the
comptroller.
(b) Whenever a contracting agency has determined that a bidder or
proposer has violated this section, or rules promulgated pursuant to its
provisions, the agency may disqualify such bidder or proposer from
competing for such contract and the agency may revoke such bidder's or
proposer's prequalification status.
(4) Contract administration.
(a) For each contract for which participation requirements have been
established under this section, at least once annually during the term
of such contract, the contracting agency shall review the contractor's
progress toward attainment of its utilization plan, including but not
limited to, by reviewing the percentage of work the contractor has
actually awarded to MBE, WBE and/or EBE subcontractors and the payments
the contractor has made to such subcontractors.
(b) Whenever an agency believes that a contractor or a subcontractor
is not in compliance with this section, rules promulgated pursuant to
its provisions or any provision of a contract that implements this
section, including, but not limited to any contractor utilization plan,
the agency shall send a written notice to the city chief procurement
officer, the division and the contractor describing the alleged
noncompliance and offering the contractor an opportunity to be heard.
The agency shall then conduct an investigation to determine whether such
contractor or subcontractor is in compliance.
(c) In the event that a contractor has been found to have violated
this section, rules promulgated pursuant to its provisions, or any
provision of a contract that implements this section, including, but not
limited to any contractor utilization plan, the contracting agency
shall, after consulting with the city chief procurement officer and the
division, determine whether any of the following actions should be
taken:
(i) enter an agreement with the contractor allowing the contractor to
cure the violation;
(ii) revoke the contractor's pre-qualification to bid or make
proposals for future contracts;
(iii) make a finding that the contractor is in default of the
contract;
(iv) terminate the contract;
(v) declare the contractor to be in breach of contract;
(vi) withhold payment or reimbursement;
(vii) determine not to renew the contract;
(viii) assess actual and consequential damages;
(ix) assess liquidated damages or reduction of fees, provided that
liquidated damages may be based on amounts representing costs of delays
in carrying out the purposes of the program established by this section,
or in meeting the purposes of the contract, the costs of meeting
utilization goals through additional procurements, the administrative
costs of investigation and enforcement, or other factors set forth in
the contract;
(x) exercise rights under the contract to procure goods, services or
construction from another contractor and charge the cost of such
contract to the contractor that has been found to be in noncompliance;
or
(xi) take any other appropriate remedy.
(5) To the extent available pursuant to rules of the procurement
policy board, a contractor may seek resolution of a dispute regarding a
contract related to this section. The contracting agency shall submit a
copy of such submission to the division.
(6) Whenever an agency has reason to believe that an MBE, WBE or EBE
is not qualified for certification, or is participating in a contract in
a manner that does not serve a commercially useful function, or has
violated any provision of this section, the agency shall notify the
commissioner who shall determine whether the certification of such
business enterprise should be revoked.
(7) Statements made in any instrument submitted to an agency pursuant
to these rules shall be submitted under penalty of perjury and any false
or misleading statement or omission shall be grounds for the application
of any applicable criminal and/or civil penalties for perjury. The
making of a false or fraudulent statement by an MBE, WBE or EBE in any
instrument submitted pursuant to these rules shall, in addition, be
grounds for revocation of its certification.
(8) A contractor's record in implementing its contractor utilization
plan shall be a factor in the evaluation of its performance. Whenever a
contracting agency determines that a contractor's compliance with a
contractor utilization plan has been unsatisfactory, the agency shall,
after consultation with the city chief procurement officer, file an
advice of caution form for inclusion in VENDEX as caution data.
p. Procurements by elected officials and the council.
(1) In the case of procurements by independently elected city
officials other than the mayor, where these rules provide for any action
to be taken by the director or the city chief procurement officer, such
action shall instead be taken by such elected officials.
(2) In the case of procurements by the council, where these rules
provide for any action to be taken by the director or the city chief
procurement officer, such action shall instead be taken by the speaker
of the council.
q. Applicability. Agencies shall not be required to apply
participation requirements to the following types of contracts:
(1) those subject to federal or state funding requirements which
preclude the city from imposing the requirements of this subdivision;
(2) those subject to federal or state law participation requirements
for MBEs, WBEs, disadvantaged business enterprises, and/or EBEs;
(3) contracts between agencies;
(4) procurements made through the United States general services
administration or another federal agency, or through the New York state
office of general services or another state agency, or any other
governmental agency.
(5) emergency procurements pursuant to section three hundred fifteen
of the charter;
(6) sole source procurements pursuant to section three hundred
twenty-one of the charter;
(7) contracts for human services; and
(8) contracts awarded to not-for-profit organizations.
r. Comptroller. The comptroller shall randomly examine contracts for
which contractor utilization plans are established to assess compliance
with such plans. All solicitations for contracts for which contractor
utilization plans are to be established shall include notice of
potential comptroller examinations.
Section 6-130.
* § 6-130. New York state food purchased by city agencies. a.
Definitions. For the purposes of this section, the following terms shall
have the following meanings:
(1) "Agency" shall mean a city, county, borough, or other office,
position, administration, department, division, bureau, board or
commission, or a corporation, institution or agency of government, the
expenses of which are paid in whole or in part from the city treasury.
(2) "City chief procurement officer" shall mean the person to whom the
mayor has delegated authority to coordinate and oversee the procurement
activity of mayoral agency staff, including the agency chief contracting
officers and any offices that have oversight responsibility for
procurement.
(3) "Food products" shall mean the types of fresh fruits, vegetables
and field crops identified on the list promulgated by the New York state
commissioner of agriculture and markets pursuant to subdivision eight-a
of New York general municipal law section one hundred three.
(4) "Food purchase contract" shall mean any contract entered into by
an agency for the direct purchase of food products or processed food.
(5) "Food-related services contract" shall mean any contract for
services entered into by an agency, that includes the provision of food
products or processed food.
(6) "New York state food products" shall mean food products whose
essential components are grown, produced or harvested in New York state,
and processed food that is processed in facilities located within New
York state.
(7) "Processed food" shall mean the types of foods that have been
altered from their natural state, using methods including, but not
limited to, canning, freezing, cooking, mixing, chopping, refrigeration,
dehydration, liquefaction, and emulsification identified on the list
promulgated by the New York state commissioner of agriculture and
markets pursuant to subdivision eight-a of New York general municipal
law section one hundred three.
b. The city chief procurement officer shall encourage agencies to make
best efforts to purchase New York state food in ways including, but not
limited to:
(1) within one hundred eighty days of the effective date of the local
law that added this section, establishing guidelines for agencies that
will assist in increasing the purchase of New York state food products,
pursuant to the process set forth in subdivision eight-a of New York
general municipal law section one hundred three, applicable to both food
purchase contracts and food-related services contracts;
(2) publishing such New York state food products purchasing guidelines
on the mayor's office of contract services website, disseminating such
guidelines to agencies and training agency contracting personnel on
implementing such guidelines; and
(3) monitoring agency implementation of such guidelines.
c. Within one hundred eighty days of the effective date of the local
law that added this section, the commissioner of the department of
citywide administrative services, with respect to food purchase
contracts, and the city chief procurement officer, with respect to
food-related services contracts, shall ensure that the city guidelines
and the listing of New York state food products promulgated by the New
York state commissioner of markets and agriculture pursuant to
subdivision eight-a of New York general municipal law section one
hundred three are made a part of each solicitation for all such
contracts and shall request that each vendor supplying food products or
processed food under a contract issued as a result of such
solicitations:
(1) review the list of New York state food products to determine
whether any such products are being provided under such contract(s);
(2) report to the procuring agency all of the food products and
processed food procured under such contract(s), categorized by specific
type, together with the dollar value of each such type procured under
such contract(s), to the extent practicable and known to such vendor;
and
(3) for each such type of food product or processed food included on
the listing of New York state food products, report to the procuring
agency, to the extent practicable and known to such vendor: (a) any such
New York state food product procured under such contract(s), together
with the dollar value of each such type procured under such contract(s);
(b) any such food product from outside of New York state procured under
such contract(s) during its listed New York state availability period,
together with the dollar value of each such type procured under such
contract(s); and (c) any other such food product from outside of New
York state or processed food from facilities outside of New York state
procured under such contract(s) from outside New York state, together
with the dollar value of each such type procured under such contract(s).
d. The city chief procurement officer shall collect the information
provided by vendors pursuant to subdivision c of this section.
e. This section shall not be construed as requiring that the
guidelines developed pursuant to this section require the purchase of
more costly food products or processed food, or that such guidelines be
made applicable to: (1) emergency procurements pursuant to section three
hundred fifteen of the charter; (2) food purchases in dollar amounts
less than the small purchase limits set forth in section three hundred
fourteen of the charter; or (3) food procured from vendors in partial
fulfillment of larger contracts for social services, where food is
purchased in dollar amounts totaling annually less than the small
purchase limits set forth in section three hundred fourteen of the
charter.
f. Nothing in this section shall be construed to limit the city's
authority to enter into, cancel or terminate a contract, issue a
non-responsibility finding, issue a non-responsiveness finding, deny a
person or entity pre-qualification, or otherwise deny a contractor city
business.
g. Not later than October first of each year, the city chief
procurement officer shall submit to the mayor and the speaker of the
city council, and publish on the mayor's office of contract services
website, a report detailing the city's efforts during the preceding
fiscal year to implement the city guidelines for the purchase of New
York state food, adopted pursuant to subdivision eight-a of New York
general municipal law section one hundred three. Such report shall
include, at minimum:
(1) a description of the city's efforts to improve and increase the
tracking of information relating to New York state food procured by
agencies;
(2) a list of vendors that provided information pursuant to
subdivision c of this section, in connection with covered solicitations;
and
(3) the information collected pursuant to paragraph three of
subdivision c of this section, compiled to provide the following,
disaggregated by food product and processed food: (a) the total dollar
value of New York state food products procured by agencies; (b) the
total dollar value of food products from outside of New York state
procured by agencies during their listed New York state availability
periods; and (c) the total dollar value of all other food products from
outside of New York state and processed food from facilities outside of
New York state.
* NB There are 2 § 6-130's
Section 6-130
* § 6-130 Prevailing Wage for Building Service Employees in City
Leased or Financially Assisted Facilities. a. Definitions. For purposes
of this section, the following terms shall have the following meanings:
(1) "Affordable housing project" means a project where not less than
fifty percent of the residential units are affordable for households
earning up to one hundred thirty percent of the area median income or in
which all residential units are affordable to households earning up to
one hundred sixty five percent of the area median income provided that
at least twenty percent of units are affordable to households earning no
more than fifty percent of area median income and at least one-third of
residential units are occupied at the time of execution of the financial
assistance, and where no more than thirty percent of the total square
footage of the project area is used for commercial activities, defined
as the buying, selling or otherwise providing of goods or services, or
other lawful business or commercial activities otherwise permitted in
mixed-use property.
(2) "Building service work" means work performed in connection with
the care or maintenance of a building or property, and includes but is
not limited to work performed by a watchperson, guard, doorperson,
building cleaner, porter, handyperson, janitor, gardener, groundskeeper,
stationary fireman, elevator operator and starter, or window cleaner.
(3) "Building service employee" means any person, the majority of
whose employment consists of performing building service work, including
but not limited to a watchperson, guard, doorperson, building cleaner,
porter, handyperson, janitor, gardener, groundskeeper, stationary
fireman, elevator operator and starter, or window cleaner.
(4) "City development project" means a project undertaken by a city
agency or a city economic development entity for the purpose of
improvement or development of real property, economic development, job
retention or growth, or other similar purposes where the project: (a) is
expected to be larger than 100,000 square feet, or, in the case of a
residential project, larger than 100 units; and (b) has received or is
expected to receive financial assistance. City development project shall
not include an affordable housing project, nor shall it include a
project of the Health and Hospitals Corporation. A project will be
considered a "city development project" for ten years from the date the
financially assisted project opens, or for the duration of any written
agreement between a city agency or city economic development entity and
a covered developer providing for financial assistance, whichever is
longer.
(5) "City economic development entity" means a not-for-profit
organization, public benefit corporation, or other entity that provides
or administers economic development benefits on behalf of the City
pursuant to paragraph b of subdivision one of section 1301 of the New
York city charter.
(6) "Comptroller" means the comptroller of the city of New York.
(7) "Contracting agency" means a city, county, borough, or other
office, position, administration, department, division, bureau, board or
commission, or a corporation, institution, or agency of government, the
expenses of which are paid in whole or in part from the city treasury.
(8) "Covered developer" means any person receiving financial
assistance in relation to a city development project, or any assignee or
successor in interest of real property that qualifies as a city
development project. "Covered developer" shall not include any
not-for-profit organization. Further, a covered developer shall not
include a business improvement district; a small business; nor shall it
include an otherwise covered developer whose industry conducted at the
project location is manufacturing, as defined by the North American
Industry Classification System.
(9) "Covered lessor" means any person entering into a lease with a
contracting agency
(10) "Financial assistance" means assistance that is provided to a
covered developer for the improvement or development of real property,
economic development, job retention and growth, or other similar
purposes, and that is provided either (a) directly by the city, or (b)
indirectly by a city economic development entity and that is paid in
whole or in part by the city, and that at the time the covered developer
enters into a written agreement with the city or city economic
development entity is expected to have a total present financial value
of one million dollars or more. Financial assistance includes, but is
not limited to, cash payments or grants, bond financing, tax abatements
or exemptions (including, but not limited to, abatements or exemptions
from real property, mortgage recording, sales and uses taxes, or the
difference between any payments in lieu of taxes and the amount of real
property or other taxes that would have been due if the property were
not exempted from the payment of such taxes), tax increment financing,
filing fee waivers, energy cost reductions, environmental remediation
costs, write-downs in the market value of building, land, or leases, or
the cost of capital improvements related to real property that, under
ordinary circumstances, the city would not pay for; provided, however,
that any tax abatement, credit, reduction or exemption that is given to
all persons who meet criteria set forth in the state or local
legislation authorizing such tax abatement, credit, reduction or
exemption, shall be deemed to be as of right (or non-discretionary); and
provided further that the fact that any such tax abatement, credit,
reduction or exemption is limited solely by the availability of funds to
applicants on a first come, first serve or other non-discretionary basis
set forth in such state or local law shall not render such abatement,
credit, reduction or exemption discretionary. Financial assistance shall
include only discretionary assistance that is negotiated or awarded by
the city or by a city economic development entity, and shall not include
as-of-right assistance, tax abatements or benefits. Where assistance
takes the form of leasing city property at below-market lease rates, the
value of the assistance shall be determined based on the total
difference between the lease rate and a fair market lease rate over the
duration of the lease. Where assistance takes the form of loans or bond
financing, the value of the assistance shall be determined based on the
difference between the financing cost to a borrower and the cost to a
similar borrower that does not receive financial assistance from a city
economic development entity.
(11) "Lease" means any agreement whereby a contracting agency
contracts for, or leases or rents, commercial office space or commercial
office facilities of 10,000 square feet or more from a non-governmental
entity provided the City, whether through a single agreement or multiple
agreements, leases or rents no less than fifty-one percent of the total
square footage of the building to which the lease applies, or if such
space or such facility is entirely located within the geographic area in
the borough of Staten Island, or in an area not defined as an exclusion
area pursuant to section 421-a of the real property tax law on the date
of enactment of the local law that added this section, then no less than
eighty percent of the total square footage of the building to which the
lease applies. Such agreements shall not include agreements between
not-for-profit organizations and a contracting agency.
(12) "Not-for-profit organization" means an entity that is either
incorporated as a not-for-profit corporation under the laws of the state
of its incorporation or exempt from federal income tax pursuant to
subdivision c of section five hundred one of the United States internal
revenue code.
(13) "Prevailing wage" means the rate of wage and supplemental
benefits paid in the locality to workers in the same trade or occupation
and annually determined by the comptroller in accordance with the
provisions of section 234 of the New York state labor law. As provided
under section 231 of the New York state labor law, the obligation of an
employer to pay prevailing supplements may be discharged by furnishing
any equivalent combinations of fringe benefits or by making equivalent
or differential payments under rules and regulations established by the
comptroller.
(14) Small business means an entity that has annual reported gross
revenues of less than five million dollars. For purposes of determining
whether an employer qualifies as a small business, the revenues of any
parent entity, of any subsidiary entities, and of any entities owned or
controlled by a common parent entity shall be aggregated.
b. Prevailing Wage in Buildings Where the City Leases Space Required.
(1) Covered lessors shall ensure that all building service employees
performing building service work at the premises to which a lease
pertains are paid no less than the prevailing wage.
(2) Prior to entering into a lease, or extension, renewal, amendment
or modification thereof, and annually thereafter for the term of the
lease the contracting agency shall obtain from the prospective covered
lessor, and provide to the comptroller, a certification, executed under
penalty of perjury, that all building service employees employed in the
building to which the lease pertains or under contract with the covered
developer to perform building service work in such building will be
and/or have been paid the prevailing wage for the term of the lease.
Such certification shall include a record of the days and hours worked
and the wages and benefits paid to each building service employee
employed at such building which shall be available for inspection by the
city. Such certification shall be certified by the chief executive or
chief financial officer of the covered lessor, or the designee of any
such person. The certification shall be annexed to a part of any
prospective lease. A violation of any provision of the certification or
failure to provide such certification shall constitute a violation of
this section by the party committing the violation of such provision.
(3) Each covered lessor shall be required to submit copies of records,
certified under penalty of perjury to be true and accurate, for the
building service employees performing services in the building or
buildings to each contracting agency with every request for payment
under the lease. Such records shall include the days and hours worked,
and the wages paid and benefits provided to each building service
employee. The covered lessor may satisfy this requirement by obtaining
copies of records from the employer or employers of such employees. Each
covered lessor shall maintain original payroll records for each building
service employee reflecting the days and hours worked, and the wages
paid and benefits provided for such hours worked, and shall retain such
records for at least six years after the building service work is
performed. Failure to maintain such records as required shall create a
rebuttable presumption that the building service employee was not paid
the wages and benefits as required under this section. Upon the request
of the comptroller or the city, the covered lessor shall provide a
certified original payroll record.
(4) No later than the day on which the term of the lease begins to
run, a covered lessor shall post in a prominent and accessible place at
each building to which the lease pertains and provide each building
service employee a copy of a written notice, prepared by the
comptroller, detailing the wages, benefits, and other protections to
which building service employees are entitled under this section. Such
notice shall also provide the name, address and telephone number of the
comptroller and a statement advising employees that if they have been
paid less that the prevailing wage they may notify the comptroller and
request an investigation. Such notices shall be provided in English and
Spanish. Such notice shall remain posted for the duration of the lease
and shall be adjusted periodically to reflect the current prevailing
wage for building service employees. The comptroller shall provide the
city with sample written notices explaining the rights of building
service employees and covered lessors' obligations under this section,
and the city shall in turn provide those written notices to covered
lessor.
(5) The comptroller or the city may inspect the records maintained
pursuant to paragraph 3 of this subdivision to verify the certifications
submitted pursuant to paragraph 2 of this subdivision.
(6) The requirements of this section shall apply for the term of the
lease.
(7) The city shall maintain a list of covered lessors that shall
include the address of the building to which the lease pertains. Such
list shall be updated and published as often as is necessary to keep it
current.
c. Prevailing Wage in City Development Projects Required.
(1) Covered developers shall ensure that all building service
employees performing building service work in connection with a city
development project are paid no less than the prevailing wage.
(2) Prior commencing work at the city development project, and
annually thereafter, every covered developer shall provide to the city
economic development entity and the comptroller an annual certification
executed under penalty of perjury that all building service employees
employed at a city development project by the covered developer or under
contract with the covered developer to perform building service work
will be and/or have been paid the prevailing wage. Such certification
shall include a record of the days and hours worked and the wages and
benefits paid to each building service employee employed at the city
development project or under contract with the covered developer. Such
certification shall be certified by the chief executive or chief
financial officer of the covered developer, or the designee of any such
person. A violation of any provision of the certification, or failure to
provide such certification, shall constitute a violation of this section
by the party committing the violation of such provision.
(3) Each covered developer shall maintain original payroll records for
each building service employee reflecting the days and hours worked, and
the wages paid and benefits provided for such hours worked, and shall
retain such records for at least six years after the building service
work is performed. The covered developer may satisfy this requirement by
obtaining copies of records from the employer or employers of such
employees. Failure to maintain such records as required shall create a
rebuttable presumption that the building service employees were not paid
the wages and benefits required under this section. Upon the request of
the comptroller or the city, the covered developer shall provide a
certified original payroll record.
(4) No later than the day on which any work begins at any city
economic development project subject to the requirements of this
section, a covered developer shall post in a prominent and accessible
place at every such city economic development project and provide each
building service employee a copy of a written notice, prepared by the
comptroller, detailing the wages, benefits, and other protections to
which building service employees are entitled under this section. Such
notice shall also provide the name, address and telephone number of the
comptroller and a statement advising building service employees that if
they have been paid less that the prevailing wage they may notify the
comptroller and request an investigation. Such notices shall be provided
in English and Spanish. Such notice shall remain posted for the duration
of the lease and shall be adjusted periodically to reflect the current
prevailing wage for building service employees. The comptroller shall
provide the city with sample written notices explaining the rights of
building service employees and covered developers' obligations under
this section, and the city shall in turn provide those written notices
to covered developers.
(5) The comptroller, the city or the city economic development entity
may inspect the records maintained pursuant to paragraph 3 of this
subdivision to verify the certifications submitted pursuant to paragraph
2 of this subdivision.
(6) The requirements of this section shall apply for the term of the
financial assistance, for ten years from the date that the financially
assisted project opens, or for the duration of any written agreement
between a city agency or city economic development entity and a covered
developer providing for financial assistance, whichever is longer.
(7) The city shall maintain a list of covered developers that shall
include, where a written agreement between a city agency or city
economic development entity and a covered developer providing for
financial assistance is targeted to particular real property, the
address of each such property. Such list shall be updated and published
as often as is necessary to keep it current.
d. Enforcement.
(1) No later than October 1, 2012, the mayor or his or her designee
shall promulgate implementing rules and regulations as appropriate and
consistent with this section and may delegate such authority to the
comptroller. Beginning twelve months after the enactment of the local
law that added this section, the comptroller shall submit annual reports
to the mayor and the city council summarizing and assessing the
implementation and enforcement of this section during the preceding
year.
(2) In addition to failure to comply with subdivisions b and c of this
section, it shall be a violation of this section for any covered lessor
or covered developer to discriminate or retaliate against any building
service employee who makes a claim that he or she is owed wages due as
provided under this section or otherwise seeks information regarding, or
enforcement of, this section.
(3) The comptroller shall monitor covered lessors' and covered
employers' compliance with the requirements of this section. Whenever
the comptroller has reason to believe there has been a violation of this
section, or upon a verified complaint in writing from a building service
employee, a former building service employee, or a building service
employee's representative claiming a violation of this section, the
comptroller shall conduct an investigation to determine the facts
relating thereto. At the start of such investigation, the comptroller
may, in a manner consistent with the withholding procedures established
by subdivision 2 of section 235 of the state labor law, request that the
relevant contracting agency or entity withhold any payment due to the
covered lessor or covered developer in order to safeguard the rights of
the building service employees.
(4) The comptroller shall report the results of such investigation to
the mayor or his or her designee, who shall, in accordance with the
provisions of paragraph 6 of this subdivision and after providing the
covered lessor or covered developer an opportunity to cure any
violations, where appropriate issue an order, determination, or other
disposition, including, but not limited to, a stipulation of settlement.
Such order, determination, or disposition may at the discretion of the
mayor, or his or her designee, impose the following on the covered
lessor covered developer committing the applicable violations: (i)
direct payment of wages and/or the monetary equivalent of benefits
wrongly denied, including interest from the date of the underpayment to
the building service employee, based on the interest rate then in effect
as prescribed by the superintendent of banks pursuant to section 14-a of
the state banking law, but in any event at a rate no less than six
percent per year; (ii) direct payment of a further sum as a civil
penalty in an amount not exceeding twenty-five percent of the total
amount found to be due in violation of this section, except that in
cases where a final disposition has been entered against a person in two
instances within any consecutive six year period determining that such
person has willfully failed to pay or to ensure the payment of the
prevailing wages in accordance with the provisions of this section or to
comply with the anti-retaliation, recordkeeping, notice, or reporting
requirements of this section, the mayor, or his or her designee, may
impose a civil penalty in an amount not exceeding fifty percent of the
total amount found to be due in violation of this section; (iii) direct
the maintenance or disclosure of any records that were not maintained or
disclosed as required by this section; (iv) direct the reinstatement of,
or other appropriate relief for, any person found to have been subject
to retaliation or discrimination in violation of this section; or (v)
direct payment of the sums withheld at the commencement of the
investigation and the interest that has accrued thereon to the covered
lessor or covered developer. In assessing an appropriate remedy, due
consideration shall be given to the gravity of the violation, the
history of previous violations, the good faith of the covered lessor or
covered developer, and the failure to comply with record-keeping,
notice, reporting, or other non-wage requirements. Any civil penalty
shall be deposited in the general fund.
(5) In addition to the provisions provided in subparagraph a of this
paragraph, in the case of a covered developer, based upon the
investigation provided in this paragraph, the comptroller shall also
report the results of such investigation to the city economic
development entity, which may impose a remedy as such entity deems
appropriate as within its statutorily prescribed authority, including
rescindment of the award of financial assistance.
(6) Before issuing an order, determination, or any other disposition,
the mayor, or his or her designee, as applicable, shall give notice
thereof, together with a copy of the complaint, which notice shall be
served personally or by mail on any person affected thereby. The mayor,
or his or her designee, as applicable, may negotiate an agreed upon
stipulation of settlement or refer the matter to the office of
administrative trials and hearings, or other appropriate agency or
tribunal, for a hearing and disposition. Such person or covered employer
shall be notified of a hearing date by the office of administrative
trials and hearings, or other appropriate agency or tribunal, and shall
have the opportunity to be heard in respect to such matters.
(7) When a final disposition has been made in favor of a building
service employee and the person found violating this section has failed
to comply with the payment or other terms of the remedial order of the
mayor, or his or her designee, as applicable, and provided that no
proceeding for judicial review shall then be pending and the time for
initiation of such proceeding has expired, the mayor, or his or her
designee, as applicable, shall file a copy of such order containing the
amount found to be due with the clerk of the county of residence or
place of business of the person found to have violated this section, or
of any principal or officer thereof who knowingly participated in the
violation of this section. The filing of such order shall have the full
force and effect of a judgment duly docketed in the office of such
clerk. The order may be enforced by and in the name of the mayor, or his
or her designee, as applicable, in the same manner and with like effect
as that prescribed by the state civil practice law and rules for the
enforcement of a money judgment.
(8) In an investigation conducted under the provisions of this
section, the inquiry of the comptroller or mayor, or his or her
designee, as applicable, shall not extend to work performed more than
three years prior to the filing of the complaint, or the commencement of
such investigation, whichever is earlier.
e. Civil Action.
(1) Except as otherwise provided by law, any person claiming to be
aggrieved by a violation of this section shall have a cause of action in
any court of competent jurisdiction for damages, including punitive
damages, and for injunctive relief and such other remedies as may be
appropriate, unless such person has filed a complaint with the
comptroller or the mayor with respect to such claim. In an action
brought by a building service employee, if the court finds in favor of
the employee, it shall award the employee, in addition to other relief,
his/her reasonable attorneys' fees and costs.
(2) Notwithstanding any inconsistent provision of paragraph 1 of this
subdivision where a complaint filed with the comptroller or the mayor is
dismissed an aggrieved person shall maintain all rights to commence a
civil action pursuant to this chapter as if no such complaint had been
filed.
(3) A civil action commenced under this section shall be commenced in
accordance with subdivision 2 of section 214 of New York civil practice
law and rules.
(4) No procedure or remedy set forth in this section is intended to be
exclusive or a prerequisite for asserting a claim for relief to enforce
any rights hereunder in a court of law. This section shall not be
construed to limit an employee's right to bring a common law cause of
action for wrongful termination.
(5) Notwithstanding any inconsistent provision of this section or of,
any other general, special or local law, ordinance, city charter or
administrative code, a building service employee affected by this law
shall not be barred from the right to recover the difference between the
amount paid to the employee and the amount which should have been paid
to the employee under the provisions of this section because of the
prior receipt by the employee without protest of wages or benefits paid,
or on account of the building service employee's failure to state orally
or in writing upon any payroll or receipt which the employee is required
to sign that the wages or benefits received by the employee are received
under protest, or on account of the employee's failure to indicate a
protest against the amount, or that the amount so paid does not
constitute payment in full of wages or benefits due the employee for the
period covered by such payment.
f. Application to existing leases. Nothing contained herein shall
operate to impair any existing lease, except that extension, renewal,
amendment or modification of such lease occurring on or after the
enactment of the local law that added this section shall make the entire
lease subject to the conditions specified in this section; provided
however, in cases where a contracting agency has multiple leases at the
same building with a non-governmental entity, the provisions of this
section shall not apply until the lease covering the largest amount of
square footage at such building is extended, renewed, amended, or
modified.
g. Application to existing city development projects. The provisions
of this section shall not apply to any written agreement between a city
agency or city economic development entity and a covered developer
providing for financial assistance executed prior to the enactment of
the local law that added this section, except that extension, renewal,
amendment or modification of such written agreement, occurring on or
after the enactment of the local law that added this section that
results in the grant of any additional financial assistance to the
financial assistance recipient shall make the covered developer subject
to the conditions specified in section.
h. Severability. In the event that any requirement or provision of
this section, or its application to any person or circumstance, should
be held invalid or unenforceable by an court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other
requirements or provisions of this section, or the application of the
requirement or provision held unenforceable to any other person or
circumstance.
i. Competing laws. This section shall be liberally construed in favor
of its purposes. Nothing in this section shall be construed as
prohibiting or conflicting with any other obligation or law, including
any collective bargaining agreement, that mandates the provision of
higher or superior wages, benefits, or protections to covered employees.
No requirement or provision of this section shall be construed as
applying to any person or circumstance where such coverage would be
preempted by federal or state law. However, in such circumstances, only
those specific applications or provisions of this section for which
coverage would be preempted shall be construed as not applying.
* NB There are 2 § 6-130's
Section 6-131.
§ 6-131. Public online database. a. No later than July first two
thousand twelve, the mayor shall establish a public online searchable
database on an official website of the city, that shall include
summaries of the material terms of city contracts. Such contract
summaries shall include, but not be limited to, the following categories
of information, where applicable: (1) the legal name of the contractor,
franchisee or concessionaire where available, in accordance with
applicable law; (2) the dollar amount of the revised maximum expenditure
authorized under each contract; (3) the dollar amount of the original
maximum expenditure authorized under each contract; (4) a description in
plain language of the scope of services to be provided pursuant to the
contract; (5) the starting and scheduled completion date of the
contract; (6) the name of the agency, elected official or the council
that awarded the contract; (7) the contract, franchise or concession and
the contract registration number, if any, assigned by the comptroller;
(8) the date and reason for any modification or amendment of the
contract; (9) the percentage change from original contract amount; (10)
the award method; (11) the contract type; and (12) the contract
category.
b. Except as otherwise provided, for the purposes of this section:
(1) "agency" shall mean a city, county, borough, or other office,
position, administration, department, division, bureau, board or
commission, or a corporation, institution or agency of government, the
expenses of which are paid in whole or in part from the city treasury,
as defined in section eleven hundred fifty of the charter;
(2) "contract" shall mean and include any agreement between an agency,
elected official or the council and a contractor, which has a value
greater than the small purchase limit, as determined by the procurement
policy board, pursuant to section three hundred fourteen of the charter;
(3) "contractor" shall mean and include any individual, sole
proprietorship, partnership, joint venture or corporation who enters
into a contract, as defined in paragraph two of this subdivision, with
an agency, elected official or the council; and
Section 6-132.
§ 6-132. Posting of notice of whistleblower protection rights.
a. Definitions. For the purposes of this section, the following terms
shall have the following meanings:
(1) "Contract" shall mean any written agreement, purchase order or
instrument valued in excess of one hundred thousand dollars or more
pursuant to which a contracting agency is committed to expend or does
expend funds in return for work, labor, services, supplies, equipment,
materials, or any combination of the foregoing, and shall include a
subcontract between a contractor and a subcontractor.
(2) "Contracting agency" shall mean a city, county, borough, or other
office, position, administration, department, division, bureau, board or
commission, or a corporation, institution or agency of government, the
expenses of which are paid in whole or in part from the city treasury.
(3) "Contractor" shall mean a person or business entity who is a party
to a contract with a contracting agency valued in excess of one hundred
thousand dollars, and "subcontractor" shall mean a person or entity who
is a party to a contract with a contractor valued in excess of one
hundred thousand dollars.
b. Posting of information about reporting fraud, false claims,
criminality or corruption. Every contractor or subcontractor having a
contract valued in excess of one hundred thousand dollars or more shall
post a notice, in a prominent and accessible place on any site where
work pursuant to such contract or subcontract is performed, containing
information about
(1) how its employees can report to the New York city department of
investigation allegations of fraud, false claims, criminality or
corruption arising out of or in connection with such contract or
subcontract, and
(2) the rights and remedies afforded to its employees under sections
7-805 and 12-113 of the administrative code for lawful acts taken in
connection with the reporting of allegations of fraud, false claims,
criminality or corruption in connection with such contract or
subcontract.
c. Contract provisions. Every city contract or subcontract valued in
excess of one hundred thousand dollars shall contain a provision
detailing the requirements of this section. If a contracting agency
determines that there has been a violation of this section, it shall
take such action it deems appropriate consistent with the remedies
available under the contract or subcontract.
d. Nothing in this section shall be construed to limit an agency's
authority to cancel or terminate a contract, issue a non-responsibility
finding, issue a non-responsiveness finding, deny a person or entity
pre-qualification, or otherwise deny a contractor city business.
Section 6-133
§ 6-133 Notification of project cost increases. a. For the purposes of
this section, "agency" means a city, county, borough, or other office,
position, administration, department, division, bureau, board or
commission, or a corporation, institution or agency of government, the
expenses of which are paid in whole or in part from the city treasury.
b. If an agency that has entered into a contract for construction
and/or services with a maximum expenditure of more than ten million
dollars in connection with a project included in the capital budget
enters into a contract modification or extension that results in a total
revised maximum expenditure that exceeds the original contract maximum
expenditure by twenty percent or more, the mayor shall notify the
council of such contract modification or extension, including details of
the basis for and scope of the estimated additional costs.
c. Once such notification has been provided for a contract, any
additional modifications or extensions of such contract that increase
the maximum expenditure more than ten percent over the total revised
maximum expenditure shall trigger new notification to the council.
d. Notifications pursuant to this section shall be provided on a
quarterly basis sorted by project within forty-five days of the end of
the calendar quarter within which the comptroller registered such
contract action.
Section 6-134
§ 6-134 Living Wage for Employees in City Financially Assisted
Workplaces. a. This section shall be known as and may be cited as the
"Fair Wages for New Yorkers Act".
b. Definitions. For the purposes of this section, the following terms
shall have the following meanings:
(1) "City" means city of New York, and all subordinate or component
entities or persons.
(2) "City economic development entity" means a local development
corporation, not-for-profit corporation, public benefit corporation, or
other entity that provides or administers economic development benefits
and with which the department of small business services serves as a
liaison pursuant to paragraph b of subdivision one of section 1301 of
the New York city charter.
(3) "Comptroller" means the Comptroller of the city of New York and
his or her authorized or designated agents.
(4) "Covered employer" means:
(a) A financial assistance recipient;
(b) Any tenant, sub-tenant, leaseholder or subleaseholder of the
financial assistance recipient in which the financial assistance
recipient maintains an ownership interest of fifty percent or more who
occupies property improved or developed with financial assistance;
(c) Any concessionaire. For purposes of this section, concessionaire
shall include any contractor, subcontractor, or tenant operating on the
premises of any stadium, arena, or other sports facility developed
pursuant to a project agreement; or
(d) Any person or entity that contracts or subcontracts with a
financial assistance recipient to perform work for a period of more than
ninety days on the premises of the financial assistance recipient or on
the premises of property improved or developed with financial assistance
including but not limited to temporary services or staffing agencies,
food service contractors, and other on-site service contractors.
(5) "Employee" means any person employed by a covered employer within
the city of New York. This definition includes persons performing work
on a full-time, part-time, temporary or seasonal basis, and includes
employees, independent contractors, and contingent or contracted
workers, including persons made available to work through the services
of a temporary services, staffing or employment agency or similar
entity. Provided, however, that if the financial assistance is targeted
to particular real property, then only persons employed at the real
property to which the financial assistance pertains shall be deemed
employees.
(6) "Entity" or "Person" means any individual, sole proprietorship,
partnership, association, joint venture, limited liability company,
corporation or any other form of doing business.
(7) "Financial assistance" means assistance that is provided to a
financial assistance recipient for the improvement or development of
real property, economic development, job retention and growth, or other
similar purposes, and that is provided either (a) directly by the city,
or (b) indirectly by a city economic development entity and that is paid
in whole or in part by the city, and that at the time the financial
assistance recipient enters into a project agreement with the city or
city economic development entity is expected to have a total present
financial value of one million dollars or more. Financial assistance
includes, but is not limited to, cash payments or grants, bond
financing, tax abatements or exemptions (including, but not limited to,
abatements or exemptions from real property, mortgage recording, sales
and use taxes, or the difference between any payments in lieu of taxes
and the amount of real property or other taxes that would have been due
if the property were not exempted from the payment of such taxes), tax
increment financing, filing fee waivers, energy cost reductions,
environmental remediation costs, write-downs in the market value of
building, land, or leases, or the cost of capital improvements
undertaken for the benefit of a project subject to a project agreement.
Financial assistance shall include only discretionary assistance that is
negotiated or awarded by the city or by a city economic development
entity, and shall not include as-of-right assistance, tax abatements or
benefits, such as those under the Industrial and Commercial Abatement
Program, the J-51 Program, and other similar programs. Any tax
abatement, credit, reduction or exemption that is given to all persons
who meet criteria set forth in the state or local legislation
authorizing such tax abatement, credit, reduction or exemption shall be
deemed to be as-of-right (or non-discretionary); further, the fact that
any such tax abatement, credit, reduction or exemption is limited solely
by the availability of funds to applicants on a first come, first served
or other non-discretionary basis set forth in such state or local law
shall not render such abatement, credit, reduction or exemption
discretionary. Where assistance takes the form of leasing city property
at below-market lease rates, the value of the assistance shall be
determined based on the total difference between the lease rate and a
fair market lease rate over the duration of the lease. Where assistance
takes the form of loans or bond financing, the value of the assistance
shall be determined based on the difference between the financing cost
to a borrower and the cost to a similar borrower who does not receive
financial assistance from the city or a city economic development
entity.
(8) "Financial assistance recipient" means any entity or person that
receives financial assistance, or any assignee or successor in interest
of real property improved or developed with financial assistance,
including any entity to which financial assistance is conveyed through
the sale of a condominium, but shall not include any entity who is
exempt under subdivision d of this section.
(9) "Living wage" means an hourly compensation package that is no less
than the sum of the living wage rate and the health benefits supplement
rate for each hour worked. As of the effective date of the local law
that added this section, the living wage rate shall be ten dollars per
hour and the health benefits supplement rate shall be one dollar and
fifty cents per hour. The portion of the hourly compensation package
consisting of the health benefits supplement rate may be provided in the
form of cash wages, health benefits or any combination of the two. The
value of any health benefits received shall be determined based on the
prorated hourly cost to the employer of the health benefits received by
the employee. Beginning in 2013 and each year thereafter, the living
wage rate and the health benefits supplement rate shall be adjusted
based upon the twelve-month percentage increases, if any, in the
Consumer Price Index for All Urban Consumers for All Items and the
Consumer Price Index for All Urban Consumers for Medical Care,
respectively, (or their successor indexes, if any) as published by the
Bureau of Labor Statistics of the United States Department of Labor,
based on the most recent twelve-month period for which data is
available. The adjusted living wage rate and health benefits supplement
rate shall each then be rounded to the nearest five cents. Such adjusted
rates shall be announced no later than January 1 of each year and shall
become effective as the new living wage rate and health benefits
supplement rate on April 1 of each year. For employees who customarily
and regularly receive tips, the financial assistance recipient may
credit any tips received and retained by the employee towards the living
wage rate. For each pay period that an employee's base cash wages and
tips received total less than the living wage rate multiplied by the
number of hours worked, the financial assistance recipient must pay the
employee the difference in cash wages.
(10) "Not-for-profit organization" means an entity that is either
incorporated as a not-for-profit corporation under the laws of the state
of its incorporation or exempt from federal income tax pursuant to
subdivision c of section five hundred one of the United States internal
revenue code.
(11) "Project agreement" means a written agreement between the city or
a city economic development entity and a financial assistance recipient
pertaining to a project. A project agreement shall include an agreement
to lease property from the city or a city economic development entity.
(12) "Small business" has the meaning specified in paragraph 1 of
subdivision d of this section.
c. Living Wage Required
(1) Covered employers shall pay their employees no less than a living
wage.
(2) In addition to fulfilling their own obligations under this
section, financial assistance recipients shall help to ensure that all
covered employers operating on their premises or on the premises of real
property improved or developed with financial assistance pay their
employees no less than a living wage and comply with all other
requirements of this section.
(3) The requirements of this section shall apply for the term of the
financial assistance or for ten years, whichever is longer, from the
date of commencement of the project subject to a project agreement or
the date the project subject to a project agreement commences
operations, whichever is later.
d. Exemptions
The requirements established under this section shall not apply to the
following entities or persons except with respect to the reporting
requirements set forth in paragraph 2 of subdivision f of this section:
(1) Any otherwise covered employer that is a small business, which
shall be defined as an entity that has annual gross revenues of less
than five million dollars. For purposes of determining whether an
employer qualifies as a small business, the revenues of any parent
entity, of any subsidiary entities, and of any entities owned or
controlled by a common parent entity shall be aggregated.
(2) Any otherwise covered employer that is a not-for-profit
organization.
(3) Any otherwise covered employer whose principal industry conducted
at the project location is manufacturing, as defined by the North
American Industry Classification System.
(4) Any otherwise covered employer operating on the premises of a
project where residential units comprise more than 75% of the project
area, and no less than 75% of the residential units are affordable for
families earning less than 125% of the area median income.
(5) Any otherwise covered employer that is a grocery store
participating in the Food Retail Expansion to Support Health (FRESH)
program.
(6) Any otherwise covered employer that is a construction contractor
or a building services contractor, which shall include but not be
limited to any contractor of work performed by a watchperson, guard,
doorperson, building cleaner, porter, handyperson, janitor, gardener,
groundskeeper, stationary fireman, elevator operator and starter, or
window cleaner.
(7) Any otherwise covered employer, excepting a financial assistance
recipient who executed a project agreement and any entity with which
such financial assistance recipient contracts or subcontracts, occupying
or operating on the premises of property improved or developed within
the geographical delineations described in the definition of "Zone 3
Adjacent Developments," without regard to whether or not the applicable
project is deemed to be a "Hudson Yards Commercial Construction
Project," as such terms are defined in the first amendment to the Third
Amended and Restated Uniform Tax Exemption Policy of the New York City
Industrial Development Agency, as approved by the board of directors of
the city industrial development agency on November 9, 2010, provided,
however, that such exemption shall not extend to any such covered
employer who receives financial assistance through the purchase of a
condominium in the event that the city or city economic development
entity grants such covered employer additional financial subsidies in
addition to the financial assistance originally granted pursuant to such
project agreement thereafter assigned or otherwise made available to
such purchaser following such purchase.
e. Notice Posting, Recordkeeping and Retaliation
(1) No later than the day on which an employee begins work at a site
subject to the requirements of this section, a covered employer shall
post in a prominent and accessible place at every such work site and
provide each employee a copy of a written notice, prepared by the
comptroller, detailing the wages, benefits, and other protections to
which employees are entitled under this section. Such notice shall also
provide the name, address and telephone number of the comptroller and a
statement advising employees that if they have been paid less that the
living wage they may notify the comptroller and request an
investigation. Such notices shall be provided in English and Spanish.
The comptroller shall provide the city with sample written notices
explaining the rights of employees and covered employers' obligations
under this section, and the city shall in turn provide those written
notices to covered employers.
(2) A covered employer shall maintain original payroll records for
each of its employees reflecting the days and hours worked, and the
wages paid and benefits provided for such hours worked, and shall retain
such records for at least six years after the work is performed. Failure
to maintain such records as required shall create a rebuttable
presumption that the covered employer did not pay its employees the
wages and benefits required under this section. Upon the request of the
comptroller or the city, the covered employer shall provide a certified
original payroll record.
(3) It shall be unlawful for any covered employer to retaliate,
discharge, demote, suspend, take adverse employment action in the terms
and conditions of employment or otherwise discriminate against any
employee for reporting or asserting a violation of this section, for
seeking or communicating information regarding rights conferred by this
section, for exercising any other rights protected under this section,
or for participating in any investigatory, administrative, or court
proceeding relating to this section. This protection shall also apply to
any covered employee or his or her representative who in good faith
alleges a violation of this section, or who seeks or communicates
information regarding rights conferred by this section in circumstances
where he or she in good faith believes this section applies. Taking
adverse employment action against an employee or his or her
representative within sixty days of the employee engaging in any of the
aforementioned activities shall raise a rebuttable presumption of having
done so in retaliation for those activities. Any employee subjected to
any action that violates this paragraph may pursue administrative
remedies or bring a civil action as authorized pursuant to subdivision g
of this section in a court of competent jurisdiction.
f. Implementation and Reporting
(1) Each financial assistance recipient shall provide to the
comptroller and the city or city economic development entity that
executed the project agreement an annual certification, executed under
penalty of perjury, stating that all of its employees are paid no less
than a living wage, confirming the notification to all covered employers
operating on its premises that such employers must pay their employees
no less than a living wage and comply with all other requirements of
this section, providing the names, addresses and telephone numbers of
such employers, and affirming its obligation to assist the city to
investigate and remedy non-compliance of such employers. Where the
financial assistance applies only to certain property, such statement
shall be required only for the employees employed on such property.
Where there are multiple covered employers operating on the premises of
a financial assistance recipient, each covered employer shall, prior to
commencing work at such premises, provide a statement certifying that
all the employees employed by each such covered employer on the property
subject to a project agreement are paid no less than a living wage. All
statements shall be certified by the chief executive or chief financial
officer of the covered employer, or the designee of any such person. A
violation of any provision of such certified statements shall constitute
a violation of this section by the party committing the violation of
such provision.
(2) An otherwise covered employer that qualifies for an exemption from
the requirements of this section under subdivision d of this section
shall provide a statement, executed under penalty of perjury, certifying
that the employer qualifies for an exemption and specifying the basis
for that exemption. Such an employer shall update or withdraw such
statement on a timely basis if its eligibility for the claimed exemption
should change.
(3) The comptroller and the city or city economic development entity
that executed the project agreement may inspect the records maintained
pursuant to paragraph 2 of subdivision e of this section to verify the
certifications submitted pursuant to paragraph 1 of this subdivision.
(4) The city or city economic development entity that executed the
project agreement shall maintain for four years all certifications
submitted pursuant to this subdivision and make them available for
public inspection.
(5) The city shall maintain a list of financial assistance recipients
subject to project agreements that shall include, where a project
agreement is targeted to particular real property, the address of each
such property. Such list shall be updated and published as often as is
necessary to keep it current.
g. Monitoring, Investigation and Enforcement
(1) The comptroller shall monitor covered employers' compliance with
the requirements of this section. Whenever the comptroller has reason to
believe there has been a violation of this section, or upon a verified
complaint in writing from an employee or an employee's representative
claiming a violation of this section, the comptroller shall conduct an
investigation to determine the facts relating thereto. The name of any
employee identified in a complaint shall be kept confidential as long as
possible, and may be disclosed only with the employee's consent,
provided, however, that such consent shall not be required once notice
is required to be given pursuant to paragraph 4 of this subdivision. For
the purpose of conducting investigations pursuant to this section, the
comptroller shall have the authority to observe work being performed on
the work site, to interview employees during or after work hours, and to
examine the books and records relating to the payrolls being
investigated to determine whether or not the covered employer is in
compliance with this section. At the start of such investigation, the
comptroller may, in a manner consistent with the withholding procedures
established by subdivision 2 of section 235 of the state labor law,
request that the city or city economic development entity that executed
the project agreement withhold any payment due to the financial
assistance recipient in order to safeguard the rights of the employees.
(2) The comptroller shall report the results of such investigation to
the mayor, or his or her designee, who shall, in accordance with
provisions of paragraph 4 of this subdivision and after providing the
covered employer an opportunity to cure any violations, where
appropriate issue an order, determination, or other disposition,
including, but not limited to, a stipulation of settlement. Such order,
determination, or disposition may, at the discretion of the mayor, or
his or her designee, impose the following on the covered employer
committing the applicable violations:
(a) Direct payment of wages and/or the monetary equivalent of benefits
wrongly denied, including interest from the date of underpayment to the
employee, based on the interest rate then in effect as prescribed by the
superintendent of banks pursuant to section 14-a of the state banking
law, but in any event at a rate no less than six percent per year;
(b) Direct payment of a further sum as a civil penalty in an amount
not exceeding two hundred percent of the total amount found to be due in
violation of this section;
(c) Direct the filing or disclosure of any records that were not filed
or made available to the public as required by this section;
(d) Direct the reinstatement of, or other appropriate relief for, any
person found to have been subjected to retaliation or discrimination in
violation of this section;
(e) Direct payment of the sums withheld at the commencement of the
investigation and the interest that has accrued thereon to the financial
assistance recipient; and
(f) Declare ineligible to receive financial assistance or prohibit
from operating as a covered employer on the premises of a financial
assistance recipient or on real property improved or developed with
financial assistance any person against whom a final disposition has
been entered in two instances within any consecutive six year period
determining that such person has willfully failed to pay the required
wages in accordance with the provisions of this section or to comply
with the anti-retaliation, recordkeeping, notice, or reporting
requirements of this section.
(3) In assessing an appropriate remedy, due consideration shall be
given to the gravity of the violation, the history of previous
violations, the good faith of the covered employer, and the failure to
comply with record-keeping, notice, reporting, or other non-wage
requirements. Any civil penalty shall be deposited in the city general
fund.
(4) Before issuing an order, determination, or any other disposition,
the mayor or his or her designee shall give notice thereof, together
with a copy of the complaint, which notice shall be served personally or
by mail on any person affected thereby. The mayor, or his or her
designee, may negotiate an agreed upon stipulation of settlement or
refer the matter to the office of administrative trials and hearings for
a hearing and disposition. Such covered employer shall be notified of a
hearing date by the office of administrative trials and hearings, or
other appropriate tribunal, and shall have the opportunity to be heard
in respect to such matters.
(5) When a final disposition has been made in favor of an employee and
the person found violating this section has failed to comply with the
payment or other terms of the remedial order of the mayor, or his or her
designee, as applicable, and provided that no proceeding for judicial
review shall then be pending and the time for initiation of such
proceeding has expired, the mayor, or his or her designee, as
applicable, shall file a copy of such order containing the amount found
to be due with the clerk of the county of residence or place of business
of the person found to have violated this section, or of any principal
or officer thereof who knowingly participated in the violation of this
section. The filing of such order shall have the full force and effect
of a judgment duly docketed in the office of such clerk. The order may
be enforced by and in the name of the mayor, or his or her designee, as
applicable, in the same manner and with like effect as that prescribed
by the state civil practice law and rules for the enforcement of a money
judgment.
(6) In an investigation conducted under the provisions of this
section, the inquiry of the comptroller or mayor, or his or her
designee, as applicable, shall not extend to work performed more than
three years prior to the filing of the complaint, or the commencement of
such investigation, whichever is earlier.
(7) Upon determining that a covered employer is not in compliance, and
where no cure is effected and approved by the mayor, or his or her
designee, as applicable pursuant to paragraph 2 of this subdivision, the
city or city economic development entity shall take such actions against
such covered employer as may be appropriate and provided for by law,
rule, or contract, including, but not limited to: declaring the
financial assistance recipient who has committed a violation in default
of the project agreement; imposing sanctions; or recovering from such
covered employer the financial assistance disbursed or provided to such
covered employer, including but not limited to requiring repayment of
any taxes or interest abated or deferred.
(8) Except as otherwise provided by law, any person claiming to be
aggrieved by a violation of this section shall have a cause of action in
any court of competent jurisdiction for damages, including punitive
damages, and for injunctive relief and such other remedies as may be
appropriate, unless such person has filed a complaint with the
comptroller or the mayor with respect to such claim. In an action
brought by an employee, if the court finds in favor of the employee, it
shall award the employee, in addition to other relief, his/her
reasonable attorneys' fees and costs.
(9) Notwithstanding any inconsistent provision of paragraph 8 of this
subdivision, where a complaint filed with the comptroller or the mayor
is dismissed an aggrieved person shall maintain all rights to commence a
civil action pursuant to this chapter as if no such complaint had been
filed, provided, however, that for purposes of this paragraph the
failure of the comptroller or the mayor to issue a disposition within
one year of the filing of a complaint shall be deemed to be a dismissal.
(10) A civil action commenced under this section shall be commenced in
accordance with subdivision 2 of section 214 of the New York civil
practice law and rules.
(11) No procedure or remedy set forth in this section is intended to
be exclusive or a prerequisite for asserting a claim for relief to
enforce any rights hereunder in a court of law. This section shall not
be construed to limit an employee's right to bring a common law cause of
action for wrongful termination.
(12) Notwithstanding any inconsistent provision of this section or any
other general, specific, or local law, ordinance, city charter, or
administrative code, an employee affected by this law shall not be
barred from the right to recover the difference between the amount paid
to the employee and the amount which should have been paid to the
employee under the provisions of this section because of the prior
receipt by the employee without protest of wages or benefits paid, or on
account of the employee's failure to state orally or in writing upon any
payroll or receipt which the employee is required to sign that the wages
or benefits received by the employee are received under protest, or on
account of the employee's failure to indicate a protest against the
amount, or that the amount so paid does not constitute payment in full
of wages or benefits due to the employee for the period covered by such
payment.
h. Living Wage Preferred
(1) The city and city economic development entity shall encourage
living wage jobs on economic development projects, including those jobs
offered by tenants, sub-tenants, and leaseholders of subsidy recipients,
by employing measures that may include exercising a preference when
evaluating responses to requests for proposals and other solicitations
for those parties who commit to the payment of a living wage and those
who demonstrate that they have paid and/or required related parties to
pay a living wage on prior projects. The city and city economic
development entity shall strive to achieve a living wage for 75% or more
of the hourly jobs created overall with respect to the portfolio of all
such economic development projects.
(2) Upon entering into any agreement to develop property for an
economic development project, the city or city economic development
entity shall submit to the council a report detailing its efforts to
provide living wage jobs. Such report shall indicate whether its
agreement with the economic development subsidy recipient mandated the
payment of a living wage for any jobs created by the project. If the
agreement includes such a mandate, the city or city economic development
entity shall provide an analysis outlining the number of living wage
jobs anticipated to be created beyond those jobs for which a living wage
is required pursuant to this section and a description of the applicable
penalties if the wage requirement in the agreement is not ultimately
fulfilled. If the agreement does not include such a mandate, the city or
city economic development entity shall explain why such an agreement
could not be reached.
(3) The city shall submit to the council and post on the city's
website by January 31 of each year a report detailing the extent to
which projects that receive financial assistance provide employees a
living wage. Such reports shall provide, for employees at each site
covered by the project in the categories of industrial jobs, restaurant
jobs, retail jobs, and other jobs, including all permanent and temporary
full-time employees, permanent and temporary part-time employees, and
contract employees, the total number of employees and the number and
percentage of employees earning less than a living wage, as that term is
defined in this section. Reports with regard to projects for which
assistance was received prior to July 1, 2012 need only contain such
information required by this paragraph as is available to the city, can
be reasonably derived from available sources, and can be reasonably
obtained from the business entity to which assistance was provided.
i. Miscellaneous
(1) The provisions of this section shall not apply to any financial
assistance that was provided prior to the enactment of the local law
that added this section, nor shall they apply to any project agreement
that was entered into or to any project for which an inducement
resolution was adopted in furtherance of entering into a project
agreement prior to the enactment of the local law that added this
section, except that extension, renewal, amendment or modification of
such project agreement occurring on or after the enactment of the local
law that added this section that results in the grant of any additional
financial assistance to the financial assistance recipient shall make
the financial assistance recipient and any other covered employers
operating on the premises of the financial assistance recipient or at
the real property improved or developed with financial assistance
subject to the requirements of this section.
(2) In the event that any requirement or provision of this section, or
its application to any person or circumstance, should be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall
not invalidate or render unenforceable any other requirements or
provisions of this section, or the application of the requirement or
provision held unenforceable to any other person or circumstance. To
this end, the parts of this section are severable.
(3) This section shall be liberally construed in favor of its
purposes. This section shall not be construed to preempt or otherwise
limit the applicability of any law, policy, contract term or other
action by the city or a city economic development entity that provides
for payment of higher or supplemental wages or benefits, or for
additional penalties or remedies for violation of this or any other law.
Section 6-136.
* § 6-136. Reporting on preferred source procurement. a. Definitions.
For the purposes of this section, the following terms shall have the
following meanings:
(1) "Agency" shall mean a city, county, borough, or other office,
position, administration, department, division, bureau, board or
commission, or a corporation, institution or agency of government, the
expenses of which are paid in whole or in part from the city treasury.
(2) "City chief procurement officer" shall mean the person to whom the
mayor has delegated authority to coordinate and oversee the procurement
activity of mayoral agency staff, including the agency chief contracting
officers and any offices that have oversight responsibility for
procurement.
(3) "Preferred source vendors" shall mean vendors identified by New
York state as preferred sources pursuant to subdivision two of New York
state finance law section one hundred sixty two.
(4) "Product" shall mean the specific type of good or service
identified on the list promulgated by the New York state office of
general services pursuant to subdivision three of New York state finance
law section one hundred sixty two.
b. Not later than October first of each year, the city chief
procurement officer shall submit to the speaker of the city council and
publish on the mayor's office of contract services website a report
detailing the city's procurement of preferred source products during the
prior fiscal year. Such report shall include the following information,
disaggregated by agency:
(1) the total dollar value of each product procured from preferred
source vendors;
(2) the total dollar value of each product procured from vendors not
identified as preferred source vendors; and
(3) the total dollar value of all products procured.
* NB Effective March 17, 2014
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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