[Ord. 6 S+FN, 3-20-1996 § 1]
For the purposes of this chapter:
Shall mean a training program that trains low-income Newark
residents for employment performing lead-based paint activities in
accordance with applicable New Jersey Department of Health training
and certification standards pursuant to N.J.A.C. 8:62-1 et seq.
Shall mean the City of Newark.
Shall mean any loan, grant, or other form of assistance extended
by the City to any person or entity for the purpose of funding lead-based
paint activities.
Shall mean a grant or loan document, agreement, contract,
or other instrument entered into by the City and a recipient of City
lead abatement assistance, by which the City extends City lead abatement
assistance.
Shall mean a contract for lead-based paint activities (1)
that is awarded by the City, or (2) that is awarded by any recipient
of City lead abatement assistance and that is funded with City lead
abatement assistance.
Shall mean all workers employed by a contractor to perform
a contract, including all workers employed by any subcontractors that
have been hired by the contractor to assist in the performance of
the contract.
Shall mean a business, non-profit corporation, cooperative,
or any other legal entity, including a joint venture formed by a combination
of any of the preceding entities, that has been awarded a contract,
either by the City or by a recipient of City lead abatement assistance.
The contractor shall be licensed pursuant to N.J.A.C. 8:62-1 et seq.
Shall mean the requirement, established pursuant to Section 16:5-2 of this chapter, mandating that contractors fill all new hire positions on lead-based paint activities contracts with trained low-income Newark resident lead-based paint activities workers referred to the contractor by the City of Newark Office of Affirmative Action.
Shall mean a contract for which, pursuant to Section 16:5-4, it shall be a specification and term of the contract that the contractor must agree to a low-income Newark resident project work-hour commitment of at least 50%.
Shall mean any services performed in connection with lead-based
paint components, including but not limited to the following: inspection,
testing, evaluation of premises, risk assessment, planning, design,
interim control, abatement, remediation, replacement, and demolition
activities.
Shall mean a business, non-profit corporation, cooperative,
or other legal entity, or a joint venture formed by a combination
of any of the preceding entities, that is certified by the New Jersey
Department of Community Affairs pursuant to N.J.A.C. 8:62-1 et seq.
to perform lead-based paint activities.
Shall mean a low-income person who resides in the City of
Newark. If a low-income person has no permanent place of residence,
he or she may be considered a low-income Newark resident if his or
her most recent permanent place of residence was in the City of Newark,
and his or her last date of permanent residence there was no more
than six months before the date the contract was awarded.
Shall mean a legally enforceable written commitment by a
lead-based paint activities firm, made as a condition of entering
into a contract and/or of qualifying to bid on a contract, that a
specified percentage of the worker-hours the firm spends on the project
will be performed by members of the contract work force who are low-income
Newark residents.
Shall mean a person who satisfied either of the following
two tests: (1) during one of the two calendar years preceding the
date the contract is awarded, the person had a family household income
lower than 80% of the median household income for all households in
Newark, New Jersey, adjusted for family size; or (2) as defined by
24 C.F.R. 135.5. For the purposes of this definition, once a person
qualifies as a low-income person, he or she shall be deemed to be
a low-income person for the calendar year in which the contract is
awarded and for the two succeeding calendar years.
NEW HIRE POSITION
Shall mean all positions - including full-time, part-time,
permanent, and temporary positions - on a contractor's contract
work force except for permanent employees.
Shall mean workers who were employees of the contractor prior
to the date of the awarding of the contractor and who worked for the
contractor at least 160 hours in the three months preceding the date
of the awarding of the contract.
Shall mean any person or entity who receives City lead abatement
assistance.
[Ord. 6 S+FN, 3-20-1996 § 2]
a.
Bid specifications for all contracts shall require that the contractor,
as a term of the contract, enter into a legally enforceable written
"first source" hiring agreement whereby the contractor agrees to fill
all new hire positions with trained low-income Newark resident lead-based
paint activities workers referred to the contractor by the Office
of Affirmative Action.
b.
For each grant of City lead abatement assistance, the City shall
incorporate into the City lead abatement assistance agreement a provision
binding the recipient of the City lead abatement assistance to require
the contractor hired by the recipient to comply with the first source
hiring requirement. In particular, the City lead abatement assistance
agreement shall require the recipient to incorporate the first source
hiring requirement into any contract that the recipient awards that
is funded with City lead abatement assistance.
c.
When a contractor determines that it has a new hire position to fill,
it shall notify the Office of Affirmative Action. The Office of Affirmative
Action shall then send the name or names of one or more trained low-income
Newark resident lead-based paint activities worker to the contractor
within 14 days. The contractor may decline to hire any worker referred
to the contractor by the Office of Affirmative Action if the worker
is unqualified, unable, or unwilling to perform the work required.
However, the new hire position must still be filled by a worker referred
by the Office of Affirmative Action.
d.
In the event that one of the workers referred to a contractor by
the Office of Affirmative Action is qualified, able and willing to
perform the work required, the contractor shall notify the Office
of Affirmative Action and shall specify the reason each of the referred
workers was not hired. The Office of Affirmative Action shall then
send the contractor the name or names of one or more additional trained
low-income Newark resident lead-based paint activities workers within
seven days of the date that the contractor notifies the Office of
Affirmative Action of the unacceptability of the worker or workers
previously referred.
e.
In the event that none of the second group of workers referred is
qualified, able, and willing to perform the work required, the contractor
shall notify the Office of Affirmative Action and shall specify the
reason each of the referred workers was not hired. The Office of Affirmative
Action shall review the reasons proffered by the contractor for not
hiring each of the worker or workers referred. If it appears that
the workers referred were indeed not qualified, able, and willing
to perform the work required, the Office of Affirmative Action shall
be deemed to be unable to refer a qualified and acceptable worker
to the contractor and the contractor shall be permitted to fill the
new hire position from another source without violating the first
source hiring requirement.
f.
In the event that (1) a new hire position opens up only after work
on a contract has commenced, (2) the need to fill the new hire position
was not reasonably foreseeable at an earlier date, and (3) it is necessary
to fill the position expeditiously in order not to impede performance
of the contract, then the procedures specified above shall govern
with the following modifications: (1) the Office of Affirmative Action
must send the contractor the name or names of the referred workers
within three days of the contractor's request; and (2) if the
contractor asserts that none of the first group of workers referred
is qualified, able, and willing to perform the work required, and
the reasons proffered appear well-founded to the Office of Affirmative
Action, then the Office of Affirmative Action shall be deemed to be
unable to refer a qualified and acceptable worker to the contractor,
and the contractor shall be permitted to fill the new hire position
from another source without violating the first source hiring requirement.
[Ord. 6 S+FN, 3-20-1996 § 3]
The Office of Affirmative Action shall maintain a directory
of low-income Newark residents who have completed an approved lead
worker training program and who desires work with lead-based paint
activities contractors. Upon being contacted by a contractor seeking
a low-income position on a contract or to satisfy the low-income Newark
resident project work-hour commitment on a jobs-targeted contract,
the Office of Affirmative Action shall refer to the contractor the
name or names of one or more workers from its directory or refer the
contractor to a community-based organization registered with the Office
of Affirmative Action as a referral service for low-income Newark
resident lead-based paint activities workers.
[Ord. 6 S+FN, 3-20-1996 § 4]
The City's goal shall be that a significant share of contracts
be awarded to lead-based paint activities firms that agree to employ
substantial numbers of low-income Newark residents. This goal shall
be implemented as follows:
a.
Contracts representing not less than 50% of the total value of contracts
funded by the City each year shall be jobs-targeted contracts. Included
in this total are all contracts awarded directly by the City and all
contracts awarded by recipients of City lead abatement assistance
that are funded with City lead abatement assistance.
b.
For all jobs-targeted contracts, it shall be a term of the contract
that the contractor must agree to a low-income Newark resident project
work-hour commitment of at least 50%. Where contracts are awarded
by competitive bid, the low-income Newark resident project work-hour
commitment of at least 50% shall be a qualification for prospective
bidder lead-based paint activities firms. Only lead-based paint activities
firms that agree to a low-income Newark resident project work-hour
commitment of at least 50% shall be deemed qualified and permitted
to bid on such jobs-targeted contracts.
c.
In the case of contracts awarded directly by the City, the City shall
incorporate the above jobs-targeted contract requirements into the
bid specifications of a sufficient number of contracts so as to achieve
the requirement that 50% of the total value of contracts funded by
the City each year be jobs-targeted contracts. In the case of contracts
awarded by recipients of City lead abatement assistance that are funded
with City lead abatement assistance, the City shall incorporate the
jobs-targeted contract requirements into a sufficient number of City
lead abatement assistance agreements so as to achieve this 50% requirement
each year.
d.
For grants of City lead abatement assistance that are subject to
the jobs-targeted contract requirements, the City shall incorporate
into the City lead abatement assistance agreement a provision binding
the recipient of City lead abatement assistance to enforce and comply
with the above jobs-targeted contract requirements. In particular,
the City lead abatement assistance agreement shall require the recipient
to incorporate the jobs-targeted contract requirements as a term of
any contract that the recipient awards that is funded with City lead
abatement assistance.
e.
The City shall have the discretion to award more than 50% of the
total value of contracts awarded each year as jobs-targeted contracts.
In the event that, after good faith efforts, the City is unable to
attract any qualified lead-based paint activities firms to bid for
and perform a jobs-targeted contract, then the City shall have the
discretion either to reduce the low-income Newark resident project
work-hour commitment below 50% or to waive the jobs-targeted contract
requirement entirely and award the contract as a non-targeted contract.
[Ord. 6 S+FN, 3-20-1996 § 5]
a.
Contracts awarded by the City shall provide and City lead abatement
assistance agreements shall mandate that contracts awarded by recipients
shall also provide, that contractors are legally obligated to comply
with this chapter and to honor any commitments or representations
made pursuant to this chapter. In particular, as noted above, these
documents shall provide that contractors are legally obligated to
comply with the first source hiring requirement and, for jobs-targeted
contracts, with the 50% low-income Newark resident project work-hour
commitment.
b.
In the event that a contractor subcontracts any of the project work
to a subcontractor, the contractor shall remain legally responsible
both for complying with this chapter and with commitments made pursuant
to this chapter and for ensuring that the subcontractor complies with
the requirements of this chapter and with commitments made by the
contractor pursuant to this chapter. The contractor shall provide
the subcontractor with a copy of the contract and/or the bid package
and specifications. The subcontractor shall also be independently
responsible for complying with the requirements of this chapter and
with commitments made by the contractor pursuant to this chapter and
with commitments made by the contractor pursuant to this chapter.
Subcontracts may only be awarded subcontractors who agree, as a term
of the subcontract, to comply with the first source hiring requirement
and, for jobs-targeted contracts, with the 50% low-income Newark resident
project work-hour commitment.
c.
In addition to the requirements set forth in this chapter, contractors
and subcontractors shall comply with the requirements set forth in
the current regulations of the U.S. Department of Housing and Urban
Development implementing Section 3 of the Housing and Urban Development
Act of 1968, as amended. See C.F.R. 135 et seq.
[Ord. 6 S +FN, 3-20-1996 § 6]
The Department of Economic and Housing Development shall implement
this chapter by incorporating into contract bid specifications and
into contracts the language necessary to implement the first source
hiring requirement and, on jobs-targeted contracts, the applicable
50% low-income Newark resident project work-hour commitment. The Office
of Affirmative Action shall be responsible for monitoring contractors'
compliance with this chapter. In particular, the Office of Affirmative
Action shall monitor contractors' compliance with the first source
hiring requirement and, on jobs-targeted contracts, with the applicable
50% low -income Newark resident project work-hour commitment.
[Ord. 6 S+FN, 3-20-1996 § 7]
Before commencing work on a contract, each contractor shall
file with the Office of Affirmative Action a report that lists the
workers who will work on the contract work force and that provides
the following information for each worker: (1) the date the worker
was hired by the contractor; (2) for permanent employees, the number
of hours the worker worked for the contractor during the three months
preceding the award of the contract; (3) whether the worker is a low-income
Newark resident; (4) whether the worker was referred by the Office
of Affirmative Action; and (5) the worker's rate of pay. In the
event that a worker is added to the contract work force after the
filing of this initial report, the contractor shall promptly report
the above information for the new worker to the Office of Affirmative
Action. In the event that a worker is removed from the contract work
force after the filing of this initial report, the contractor shall
promptly report the removal to the Office of Affirmative Action. If
the removed worker is a low-income Newark resident, the report shall
include an explanation of the reason for the removal.
[Ord. 6 S+FN, 3-20-1996 § 8]
a.
Where a contractor or subcontractor fails to comply with the first
source hiring requirement or, for job-targeted contracts, fails to
comply with the 50% low-income Newark resident project work-hour commitment,
or otherwise violates this chapter, the contractor or subcontractor
shall be deemed to be in noncompliance. When a contractor or subcontractor
is deemed to be in noncompliance, the Office of Affirmative Action
shall issue a warning to the contractor or subcontractor in order
to afford it an opportunity to remedy its noncompliance. If the contractor
or subcontractor does not fully remedy its noncompliance within five
days, then (1) the Office of Affirmative Action shall be empowered
to impose against the contractor or subcontractor a penalty of $500
per day of noncompliance, and (2) the contractor shall be deemed to
be in material breach of the contract. The contract shall specify
that upon such a breach, the City shall be entitled to liquidate damages
in the amount of 25% of the contract price. However, the City shall
have discretion to demand an amount of liquidated damages less than
the full 25% of the contract price. The contract shall specify that
this provision does not in any way limit or replace any other remedies
otherwise available to the City under any other law, including general
contract law and the New Jersey local public contracts law. In addition,
contractors or subcontractors, or individuals employed by contractors
or subcontractors, that make or cause to be made false, deceptive,
or fraudulent statements or any prequalification questionnaire connected
with the contract may be punished pursuant to N.J.S. 40A:11-34.
b.
Monies collected from penalties imposed shall be used by the City
to fund implementation of this chapter and/or to fund job training
for low-income Newark residents.
[Ord. 6 S+FN, 3-20-1996 § 9]
a.
The Office of Affirmative Action shall establish a procedure for
receiving, investigating, and adjudicating administrative complaints
from private citizens charging that a contractor or subcontractor
has failed to comply with (1) the first source hiring requirement
and/or (2) for jobs-targeted contracts, the 50% low-income Newark
resident project work-hour commitment. The Office of Affirmative Action
shall render a ruling on each private citizen administrative complaint
within 90 days of the date of filing.
b.
Only if the Office of Affirmative Action does not render a ruling
on a private citizen's administrative complaint within 90 days
of the date of filing, then the private citizen administrative complainant
shall have the default right to seek review of the contractor's
compliance by maintaining an action in the New Jersey Superior Court.
c.
The private citizen administrative complainant's default right
to Superior Court review shall be established by means of an explicit
third-party right under the contract. Each contract shall specify
that pursuant to N.J.S. 2A:15-2, the private citizens of Newark are
intended third-party beneficiaries of the contract, to whom the contractor
owes a contractual duty to comply with (1) the first source hiring
requirement, and (2) for jobs-targeted contracts, the 50% low-income
Newark resident project work-hour commitment. The contract shall further
specify that in the event that the contractor fails to comply with
either of these requirements, the contractor shall be deemed to be
in material breach of the contractual duty owed to the private citizens
of Newark.
d.
The contract shall specify that to remedy such a breach, any private
citizen of Newark shall be entitled to demand as a remedy that the
contractor pay the City liquidated damages in the amount of 25% of
the contract price. However, a condition precedent required in order
for any private citizen of Newark to enforce his or her third-party
rights under the contract shall be that the private citizen must have
filed an administrative complaint with the City and the City must
have failed to rule on the complaint within 90 days of the date of
filing.
e.
The contract shall further specify that, in the event that the City
or a private citizen of Newark files suit against a contractor alleging
a breach of the contractual duty owed to them by the contractor, and
a court rules that the contractor has committed such a breach, then
the contractor shall agree to reimburse the party or parties bringing
the suit for their costs and to pay them reasonable attorney's
fees.
[Ord. 6 S+FN, 3-20-1996 § 10]
a.
The City's Department of Economic and Housing Development and
Office of Affirmative Action shall have authority to publish regulations
implementing this chapter. Such regulations shall be prepared in collaboration
with interested community based organizations, including those that
participated in the development of this chapter. Implementing regulation
shall address any issue required for full implementation, but most
establish the following:
1.
Reporting. The regulations shall establish a system of forms and procedures for reporting the information specified above in Section 16:5-6 and any other information that may be appropriate.
2.
Complaints. The regulations shall establish a system of forms and
procedures for the administrative complaint process described above.
