[HISTORY: Adopted by the Common Council of the City of Lockport as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Building construction administration — See Ch. 66.
Electrical standards — See Ch. 89.
Property maintenance — See Ch. 136.
[Adopted 4-2-1975]
Pursuant to the provisions of Article 5-A, Public Contracts, and in particular § 106-a, of the General Municipal Law of the State of New York, the City Treasurer of the City of Lockport, New York, shall impose upon each contractor doing business with the City of Lockport, New York, under the provisions of Article 5-A of the General Municipal Law, as aforesaid, such service charge for receiving, handling and disbursing funds and coupons pursuant to § 106 of said article.
The service charge shall be fixed in the amount of 1/2% on the first $100,000 or less of face value, 3/4% on $100,000 to $200,000 of face value and 1% on all over $200,000 of face value.
[Adopted 10-8-2008 by L.L. No. 6-2008]
A. 
This policy shall cover projects receiving a contract or benefit from the City of Lockport valued at over $50,000, as described below. A "benefit" is direct or indirect assistance by the City to a developer that materially benefits the developer, including, but not limited to, grants or loans of funds administered by the City, tax abatements or deferrals, issuance of bonds, and infrastructure improvements made for the purpose of facilitating or supporting a development project, land sale, a ground lease, or other project. "Contract" shall mean any public works contract awarded by the City on its own behalf, or on behalf of a special district located within the City.
B. 
The City shall apply this policy in a substantially similar manner in all projects in the City of Lockport. The entirety of this policy shall therefore be included in all disposition and development agreements, owner participation agreements, and other contracts entered into by the City as set forth in this section.
C. 
Because this policy covers a wide range of projects, not every provision of this policy shall be applicable to any single contractor or employer. This policy clearly describes which parts are applicable to which entities. Provisions of this policy that are not designated as applicable to a particular type of entity are instead applicable to all entities that agree to comply with the terms of this policy. Such parts include § 79-3, Applicability, § 79-4, Definitions; § 11-5, Monitoring and enforcement; and § 79-8, Legal provisions.
As used in this policy, the following capitalized terms shall have the following meanings. All definitions include both the singular and plural form. Definitions in this § 79-4 apply to all sections of this policy.
CITY
The City of Lockport.
CONSTRUCTION CONTRACTOR
A prime contractor or a subcontractor performing construction work related to a City project or any other covered project. Lower-tier subcontractors are included in this definition.
COVERED ENTITY
Any entity that enters into a contractual commitment to comply with this policy.
DESIGNATED LOCAL PUBLICATION
The official newspaper of the City.
DEVELOPER
Any entity entering into a disposition and development agreement, an owner participation agreement, a loan agreement, or a similar agreement with the City.
FIRST SOURCE REFERRAL SYSTEM
The system designated by the City to provide job referrals and perform related functions with regard to provisions of this policy that concern hiring of employees.
POLICY
This First Source Hiring and Local Business Enterprise Policy, in its entirety.
RESIDENT
A resident of Niagara County.
SMALL LOCAL BUSINESS
A business that (1) maintains its primary office at an established commercial or residential address in the City (not including temporary offices, movable offices, or post office boxes); (2) maintains a current City business license tax certificate; (3) has been in existence for at least six months; and (4) for the previous complete fiscal year had gross revenues of less than $5,000,000 for construction contractors, or less than $500,000 for businesses other than construction contractors (revenue thresholds shall be annually adjusted for inflation). The City shall maintain and keep current a list of qualifying small local businesses. If a contract is awarded to a joint venture between a construction contractor and a small local business, a percentage of that contract equal to the small local business's percentage share of potential profits may be considered as awarded to a small local business, so long as (1) the small local business responsibility over the project is no less than its percentage share of potential profits, and (2) the joint venture is formalized according to standard industry practices and to a degree permitting the City to evaluate the requirements provision.
SUBSIDY
Direct or indirect assistance by the City to a developer that materially benefits the developer, including, but not limited to, grants or loans of funds administered by the City, tax abatements or deferrals, infrastructure improvements made for the purpose of facilitating or supporting a development project, land sale, or a ground lease.
A. 
Summary of responsibilities of developers in development projects.
(1) 
Following is a summary of developers' responsibilities with regard to projects in the City of Lockport. This summary does not describe in detail all of developers' responsibilities, and it is not a legal description of these responsibilities. It is intended solely as a convenient overview.
(2) 
The following responsibilities apply to any business participating in a City project. Basic responsibilities of developers:
(a) 
Include the First Source Hiring and Local Business Enterprise Policy in leases and contracts. Developers should require their contractors to follow the First Source Hiring and Local Business Enterprise Policy.
(b) 
On large construction contracts make efforts to include small local businesses. Before awarding a construction contract worth more than $250,000, the developer should make sure that the contractor either has arranged to subcontract 30% of the work to small local businesses, or has made good faith efforts to do so. The City should see bids of subcontractors prior to contract award, and the City will determine whether bids meet these criteria.
(c) 
On service contracts, supply contracts, and small construction contracts, make good faith efforts to award to small local businesses. When awarding service contracts, supply contracts, or small construction contracts, developers should make good faith efforts to award contracts to small local businesses. Good faith efforts include such steps as notifying the City of opportunities to bid, and holding prebid meetings for small local businesses.
(d) 
Cooperate with City monitoring efforts. When the City attempts to monitor compliance with the First Source Hiring and Local Business Enterprise Policy, developers should cooperate by providing requested information or granting access to job sites if necessary. If a developer disagrees with a finding by the City staff that the developer was not in compliance with the First Source Hiring and Local Business Enterprise Policy, the developer may present the issue to the Common Council.
B. 
Summary of responsibilities of construction contractors.
(1) 
Following is a summary of the responsibilities of construction contractors under this First Source Hiring and Local Business Enterprise Policy. These responsibilities apply to both prime contractors and subcontractors. This summary does not describe in detail all of construction contractors' responsibilities, and it is not a legal description of these responsibilities. It is simply intended as a convenient overview.
(2) 
Basic responsibilities of construction contractors.
(a) 
Include the First Source Hiring and Local Business Enterprise Policy in contracts. Construction contractors should require their subcontractors to follow the First Source Hiring and Local Business Enterprise Policy. Therefore, all contractors should include this policy in contracts and subcontracts.
(b) 
Meet a thirty-percent employment goal for residents. Thirty percent of all work-hours in each trade should be performed by residents of Niagara County. Each construction contractor should either achieve this goal or show that it made good faith efforts to do so. Good faith efforts include such steps as notifying the City of employment opportunities, and making reasonable modifications to crew structures to facilitate employment of residents.
(c) 
When awarding subcontracts, meet a thirty-percent subcontracting goal for small local businesses. Construction contractors that award subcontracts should either award 30% of subcontracts to small local businesses, or make good faith efforts to do so. Good faith efforts include such steps as notifying the City of contracting opportunities and, where feasible, breaking down large contracts into smaller contracts.
(d) 
Cooperate with City monitoring efforts and reporting requirements. Within three days of awarding any subcontract, construction contractors should notify the City and report whether the contract was awarded to a small local business. When the City is attempting to monitor compliance with the First Source Hiring and Local Business Enterprise Policy, construction contractors should cooperate by providing requested information or granting access to job sites if necessary. If a contractor disagrees with a finding by the City staff that the contractor was not in compliance with the First Source Hiring and Local Business Enterprise Policy, the contractor may present the issue to the City Common Council.
A. 
General responsibilities of construction contractors.
(1) 
Coverage. This § 79-6 applies to all construction contractors.
(2) 
Designation of contact person. At time of award of a contract to perform construction work as part of a City project or any other covered project, each construction contractor shall designate a contact person for all matters related to implementation of this policy. Each construction contractor shall forward the name, address and phone number of the designated individual to the City. If the contact person changes, the construction contractor shall immediately notify the City.
(3) 
Include First Source Hiring and Business Enterprise Policy in contracts. Each construction contractor entering into any subcontract, or contract, relating to the construction, maintenance, or operation of a City project or any other covered project shall include compliance with the entirety of this policy as a material term of such subcontract, contract, deed, or lease.
(4) 
Cooperation with monitoring efforts. Each construction contractor shall make available to the City all requested records and information relevant to monitoring and enforcement of this policy. The City shall not use such records or information for any purpose other than monitoring or enforcement of this policy, and shall not release trade secrets or information regarding employees designated by name. Construction contractors may redact names and social security numbers from requested documents in order to protect the privacy of individual employees, although the City may require that a construction contractor provide addresses of individuals if place of residency is an issue. Where a construction contractor has redacted names and social security numbers from documents it has provided to the City, the construction contractor shall grant the City on-site access to unredacted version of such documents during normal business hours upon the City's request. Each construction contractor shall allow the City access to job sites and employees during usual business hours as the City deems necessary to monitor compliance with this policy. Each construction contractor agrees to the provisions of § 79-7 regarding monitoring and enforcement of this policy.
B. 
Construction contractor responsibilities regarding employees.
(1) 
Coverage. This subsection applies to any employment by a construction contractor in fulfillment of the construction contractor's responsibilities under a contract to perform construction work as part of a City development project or any other covered project.
(2) 
Thirty-percent local employment goal. Thirty percent of all work-hours in each trade shall be performed by residents. Each construction contractor shall either achieve this goal or demonstrate that it made good faith efforts to do so.
(3) 
Good faith efforts. For purposes of this subsection, good faith efforts shall mean diligent efforts to locate and employ qualified residents. Good faith efforts include:
(a) 
At least three days prior to hiring for any job, providing to the City written notification of employment opportunities for residents;
(b) 
Working closely and cooperatively with the City to locate and employ residents;
(c) 
Making reasonable modifications to crew structures to facilitate employment of residents;
(d) 
Promptly contacting the City if difficulty in reaching the goal is anticipated or encountered;
(e) 
Maintaining a file on the job site of the names and addresses of each resident referred to the construction contractor from any source, and, for residents not hired, the reasons therefor; and if a union hiring hall with which the construction contractor has a collective bargaining agreement fails to refer a resident requested by that construction contractor, advise the City.
(4) 
Existing workforce. The existence of a crew or workforce usually employed by a construction contractor shall not affect the construction contractor's responsibilities under this policy.
(5) 
Nondiscrimination. Construction contractors shall not discriminate against residents in any terms and conditions of employment, including retention, promotions, job duties, and training opportunities.
C. 
Construction contractor responsibilities when awarding subcontracts.
(1) 
Coverage. This subsection applies to the award of any contract by a construction contractor, including, but not limited to, subcontracts, supply contracts, and lower-tier subcontracts, related to that construction contractor's fulfillment of a contract to perform construction work as part of any City development project or any other covered project.
(2) 
Subcontracting goal of 30%. Each construction contractor that awards any contract covered by this subsection is subject to a thirty-percent subcontracting goal for small local businesses. Under this requirement, each construction contractor shall either meet this goal or demonstrate that it made good faith efforts to do so. In order to demonstrate good faith efforts, construction contractors shall prepare and forward to the City a summary of outreach and assistance efforts to small local businesses, including each of the requirements listed in Subsection C(4) below. If a construction contractor awards only one contract covered by this subsection, the construction contractor shall either award that contract to a small local business or make good faith efforts to do so. The thirty-percent subcontracting goal does not apply to any construction contractor that does not award any contracts covered by this section.
(3) 
Definition of good faith efforts. Good faith efforts include:
(a) 
At least two weeks before award of the contract in question, providing notification of subcontracting opportunities and procedure for bidding on all contracts to small local businesses on a list provided by the City; such notification shall include project specifications, location of the project, contact information for the construction contractor's representative who is familiar with the project, trades required, and bonding and insurance requirements for the contract;
(b) 
At least two weeks before award of the subcontract in question, advertising the opportunity to bid in a designated local publication;
(c) 
Holding a pre-bid meeting for small local businesses in which opportunities for subcontracts are described and can be discussed;
(d) 
Providing pre-bid technical assistance to small local businesses that have expressed interest in bidding;
(e) 
Engaging in one-on-one review of bids submitted by small local businesses;
(f) 
Working with the City to help small local businesses who might participate obtain bonding and insurance;
(g) 
Where feasible, facilitating joint venturing and second-tier subcontracting in an effort to include small local businesses in the project; and
(h) 
Where feasible, breaking down large subcontracts into smaller subcontracts where doing so would make small local business participation possible.
(4) 
Include First Source Hiring and Local Business Enterprise Policy in contracts. Each construction contractor entering into a contract or subcontract covered by this subsection shall include compliance with the entirety of this policy as a material term of such contract or subcontract.
(5) 
Reporting requirements. Within three days of the award of any contract covered by this subsection, the awarding construction contractor shall provide to the City the following information: the name, address, and telephone number of the subcontractor, whether that subcontractor is a small local business, and the projected dollar amount of the contract. For each contract that was not awarded to a small local business, the construction contractor shall provide written documentation of good faith efforts taken with regard to award of that contract. The City may assist construction contractors by preparing forms to be completed for this purpose.
A. 
Monitoring by the City.
(1) 
Monitoring activities. The City shall monitor compliance with this policy by covered entities. Monitoring activities may include requests to produce documentation, site visits, interviews, review of required reports, and any other monitoring activities the City reasonably finds necessary to assess compliance with this policy. Covered entities shall cooperate fully and promptly with any inquiries the City deems necessary in order to monitor compliance with this policy. The City may review a covered entity's compliance with this policy either on its own initiative or after receiving a complaint or inquiry from a member of the public or City staff member.
(2) 
Certified payroll. When a construction contractor or developer is required to provide certified payroll records to the City, the payroll record must indicate the resident status of each worker listed on the certified payroll.
B. 
Enforcement by the City.
(1) 
City enforcement procedures. The following procedures shall be followed when the City staff determines that there has been a violation of this policy:
(a) 
Notice of violation. When the City staff determines that there has been a violation of this policy, it shall notify the covered entity alleged to be in violation. Such notification shall be in writing, and shall specify the precise measures necessary to correct the violation.
(b) 
Good faith resolution efforts. If the covered entity does not correct the violation within 10 business days, the covered entity and the City staff shall make a good faith effort to hear all sides and to negotiate a resolution.
(c) 
Referral to City. If the covered entity and the City staff or designee cannot negotiate a resolution within 45 days of the notice of violation, the City staff or designee shall refer the matter to the City for enforcement efforts, depending on whether the contract that incorporated this policy was awarded by the City. At this time, the City staff may amend the notice of violation, and the covered entity alleged to be in violation shall forward to the City staff a written statement describing with particularity its position regarding the substance of the notice of violation. The City staff may refer a matter to the City for enforcement efforts in less than 45 days if it determines that there is a continuing violation of the policy.
(2) 
Enforcement by City. If the City staff and the covered entity cannot negotiate a resolution within a period of time deemed reasonable by the City, the City may take any or all of the following actions. While any of these actions are pending, City staff and the covered entity may continue to negotiate a resolution of the dispute.
(a) 
Arbitration. The City may refer the dispute to binding arbitration to be conducted in accordance with the rules of the American Arbitration Association regarding arbitration of commercial disputes. Each party shall bear its own costs of such arbitration, and the parties shall equally split the cost of the arbitrator. The arbitrator, upon hearing the matter, may provide for specific enforcement of this policy, injunctive relief against the covered entity or liquidated damages as described below.
(b) 
Enforcement by courts. The City may file a legal action in a court of law to enforce this policy. The court may provide for specific enforcement of this policy, injunctive relief against the covered entity and/or liquidated damages as described below. The court may award reasonable attorneys' fees and costs to the City if it prevails in such an action.
(c) 
Termination of contract. The City may terminate for cause any contract or other agreement between the City and the covered entity.
(d) 
Withholding of funds. If the entity is owed any monetary payments pursuant to a contract or debt, the City may withhold funds in an amount specified below as liquidated damages. If the covered entity is a subcontractor on a City-funded construction project, the City may withhold progress payments to the prime contractor on that project.
(e) 
Suspension or revocation of construction permit. If the covered entity is performing work requiring a construction permit or similar permit issued by the City, the City may suspend or revoke the construction permit or similar permit, or may issue a stop-work order.
(f) 
Declaration of ineligibility. The City may declare the covered entity ineligible for participation in future City public works contracts or City development projects for a period of three years or until liquidated damages and other restitution have been paid in full, whichever is longer.
A. 
Term. This policy shall be in effect with regard to City contracts and projects from the date of its adoption by the City until such time as it is repealed by the City. The City shall regularly evaluate the policy to determine the policy's effectiveness, and may make any amendments to the policy as deemed appropriate.
B. 
Compliance with state and federal law. This policy shall be enforced only to the extent that it is consistent with the laws of the State of New York and the United States. If any provision of this policy is held by a court of law to be in conflict with state or federal law, the applicable law shall prevail over the terms of this policy, and the conflicting provisions of this policy shall not be enforceable.
C. 
Compliance with court order. Notwithstanding the provisions of this policy, a covered entity shall be deemed to be in compliance with this policy if the covered entity is bound by a court or administrative order or decree which governs the hiring of workers, the provisions of which explicitly and unalterably conflict with terms of this policy.
D. 
Severability clause. If any term, provision or condition of this policy is held by a court of competent jurisdiction to be invalid, the remainder of the provisions shall continue in full force and effect.
E. 
Binding on successors. This policy shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, and assigns of any covered entity. Any reference in this policy to a party shall be deemed to apply to any successor in interest, heir, administrator, executor, or assign of such party.
F. 
Material terms. The provisions of this policy are material terms of all contracts or agreements in which this policy is incorporated.
G. 
Intended beneficiaries. The City is the intended third-party beneficiary of contracts and other agreements which incorporate this policy. The City shall therefore have the right to enforce the provisions of this policy against all parties incorporating this policy into contracts or other agreements.