[HISTORY: Adopted by the Common Council of
the City of Lockport as indicated in article histories. Amendments
noted where applicable.]
[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.
The City of Lockport.
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.
Any entity that enters into a contractual commitment to comply
with this policy.
The official newspaper of the City.
Any entity entering into a disposition and development agreement,
an owner participation agreement, a loan agreement, or a similar agreement
with the City.
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.
This First Source Hiring and Local Business Enterprise Policy,
in its entirety.
A resident of Niagara County.
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.
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.
(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.
