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.
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.
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.
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.
§ 6-102 Performance of contracts.
Each agency shall require and enforce the faithful performance of every contract made by it.
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.
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.
§ 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.
§ 6-104 Release from fines.
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.
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.
§ 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.
§ 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.
§ 6-107 Warrants upon vouchers.
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.
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.
§ 6-107.1 Payments to city contractors to be made by electronic funds transfer.
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.
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.
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.
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.
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.
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.
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.
§ 6-108 Discrimination in employment.
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.
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.
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.
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.
§ 6-108.1 Locally based enterprises.
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.
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.
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.
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.
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.
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.
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.
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.
§ 6-108.2 Small business enterprises. [Expired]*
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.
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.
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 small 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.
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.
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.
§ 6-109 [Living wage, prevailing wage and health benefits for certain city service contractors or subcontractors.]
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.
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.
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.
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.
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.
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.
§ 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.
§ 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.
§ 6-111.1 [Electronic posting of requests for proposals.]
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.
§ 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
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.
§ 6-111.3 Online reverse auction pilot program.
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.
§ 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.
§ 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.
§ 6-114 Participation in an international boycott.
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.
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.
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.
The comptroller shall have the power to issue rules and regulations pursuant to this section.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
§ 6-115.1 Nondiscrimination in employment in Northern Ireland.
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.
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.
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.
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.
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.
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.
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.
§ 6-116 Additional contract provisions.
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.
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.
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.
§ 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.
§ 6-116.2 [Reporting of contracted goods and services; computerized data base.]
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) [Reserved.]
(9) the contract budget category to which the contract is assigned, where applicable.
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 contractors;
(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 $250,000, 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.
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.
c-1. The information required to be provided by contractors or subcontractors pursuant to subdivision b of this section shall be submitted electronically in such form and manner as the mayor may determine. For good cause, the mayor may waive the requirement of electronic submission and permit such information to be submitted in another manner.
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.
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.
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 selcted 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.
Nothing in this section shall be deemed to require the disclosure of information that is confidential or privileged or the disclosure of which would be contrary to law.
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.
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 $250,000 or more; or (b) is for the provision of goods, services or construction, is awarded to a sole source and is valued at $10,000 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 $100,000 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.
Notwithstanding any other provisions 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.
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.
§ 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.
§ 6-118 Printing and stationery.
The department of citywide administrative services shall purchase all printing and stationery for all agencies.
§ 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.
§ 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.
§ 6-121 Purchase of low-emission motor vehicles.
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.
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.
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.
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:
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
meets the crankcase emission standard as defined and as specified and the fuel evaporative emission standard as defined and as specified; and
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.
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.
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.
§ 6-122 Purchase of recycled paper products. [Repealed]
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.
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.
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.
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.
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.
§ 6-124 [Apparel and textile services procurement by city.]
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.
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.
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-poverty 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.
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.
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.
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.
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.
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.
Every contract for or on behalf of all contracting agencies for the supply and service of textiles and apparels shall contain a provision or provisions detailing the requirements of this section.
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.
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.
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.
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.
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.
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.
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.
§ 6-125 [Emergency contraception to rape victims in hospital emergency department.]
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.
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.
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.
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.
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.
§ 6-126 [Equal employment benefits to the employees of city contractors.]
This section shall be known and may be cited as the “Equal Benefits Law.”
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.
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.
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.
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.
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.
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.
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. "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."
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.
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.
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.
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.
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.
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.
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.
The procurement policy board may promulgate rules to implement the requirements of this section.
§ 6-127 Procurement of energy-using products.*
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, incluing 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 12 CFR § 226.6 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. § 1605(a)(1) through (4), except interest or the time-price differential;
(b) all charges for items listed under 12 CFR § 226.4(c)(7), 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 conuct 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 38 CFR § 36.4337(e) 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 linsurance, 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 nonprofit 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.
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.
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.
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.
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.
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.
§ 6-129 Participation by minority-owned and women-owned business enterprises and emerging business enterprises in city procurement.
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.
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.
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 [services]
(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, Hispanic Americans and Native 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.
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 Americans12% of total annual agency expenditures on such contracts
Asian Americans11.1% of total annual agency expenditures on such contracts
Hispanic Americans17.95% of total annual agency expenditures on such contracts
Native Americans0.56% of total annual agency expenditures on such contracts
Women25.66% of total annual agency expenditures on such contracts
Emerging6% of total annual agency expenditures on such contracts
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For professional services contracts:
Category:Participation goal:
Black Americans11.81% of total annual agency expenditures on such contracts
Asian Americans9.4% of total annual agency expenditures on such contracts
Hispanic Americans8.99% of total annual agency expenditures on such contracts
Native Americans0.65% of total annual agency expenditures on such contracts
Women36.67% of total annual agency expenditures on such contracts
Emerging6% of total annual agency expenditures on such contracts
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For standard services contracts:
Category:Participation goal:
Black Americans14.32% of total annual agency expenditures on such contracts
Asian Americans9.88% of total annual agency expenditures on such contracts
Hispanic Americans10.2% of total annual agency expenditures on such contracts
Native Americans0.03% of total annual agency expenditures on such contracts
Women29.26% of total annual agency expenditures on such contracts
Emerging6% of total annual agency expenditures on such contracts
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For goods contracts under one million dollars:
Category:Participation goal:
Black Americans5.94% of total annual agency expenditures on such contracts
Asian Americans10.59% of total annual agency expenditures on such contracts
Hispanic Americans7.07% of total annual agency expenditures on such contracts
Native Americans2.44% of total annual agency expenditures on such contracts
Women30.51% of total annual agency expenditures on such contracts
Emerging6% of total annual agency expenditures on such contracts
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(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.
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 and the director, 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.
(14) The division, in consultation with the city chief procurement officer, shall conduct, coordinate and facilitate mandatory trainings for agency chief contracting officers and agency M/WBE officers to assist such officers in pursuing the objectives of this section. Each agency chief contracting officer shall undergo such training on or before the ninetieth day after he or she becomes an agency chief contracting officer, and every year thereafter. Each agency M/WBE officer shall undergo such training on or before the ninetieth day after he or she becomes an agency M/WBE officer pursuant to subdivision (f) of this section, and every year thereafter. The city chief procurement officer will report to the speaker of the council on an annual basis, and shall post on the City’s website, information regarding each agency’s compliance with this paragraph.
(15) The city shall include on its website a list of city agencies, with the contact information for the M/WBE officer of each city agency and information about whether the agency’s staff have been trained as required by paragraph 14 of this subdivision.
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, and opportunities to be added to prequalified lists, 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;
(11) participating in meetings required pursuant to subdivision m of this section;
(12) facilitating training of agency staff;
(13) developing and maintaining agency standard operating protocols for the M/WBE program; and
(14) promptly disseminating information, tools, and resources that support the agency’s meeting of the requirements of this section.
Agency utilization plans.
(1) Beginning May 15, 2006, and on July 31 of each year thereafter, each agency which, during the fiscal year which ended on June 30 of the preceding fiscal 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, and shall be published on the City’s website. 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. 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 June 30 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.
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.
Participation goals for contracts for construction and professional and standard services.
(1) Prior to issuing the solicitation of bids or proposals for individual contracts that present opportunities for participation by certified firms, 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, and/or a combination of construction and services performed by a contractor or subcontractor pursuant to the contract, and/or a combination of MBEs, WBEs and/or EBEs. An agency may establish specific goals for particular types of goods or services to be provided by the prime contractor or subcontractors, 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:
(2) A contracting agency shall not be required to establish participation goals
(a) for procurements described in subdivision q of this section;
(b) 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; or
(c) for a procurement to be made in a year for which the director determines that the city has already attained the relevant goal for the industry as set forth in subdivision d of this section.
(3) (a) 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.
(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.
(c) 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.
(d) Where the agency chief contracting officer determines that it is practicable in light of the nature of goods or services being procured and the expected duration of the contract, a contracting agency shall require bidders or proposers to identify in their bids or proposals the MBEs, WBEs or EBEs they intend to use in connection with the performance of the contract, including their names, addresses and telephone numbers, and require that any substitutions may only be made with the approval of the contracting agency, which shall only be given when the contractor has proposed to use a firm that would satisfy the goals established for the procurement to the same extent as the firm previously identified, unless the contracting agency determines that the contractor has met the standards for establishing reasonable, good faith efforts as provided in paragraph 12 of subdivision i.
(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;
(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; and
(d) if required by the contracting agency pursuant to subparagraph d of paragraph 3 of this subdivision, the identity of the MBEs, WBEs or EBEs the contractor intends to use in connection with the contractor’s performance of the contract, including their names, addresses and telephone numbers.
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 twice 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 (l) 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 (l) 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 l 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 l 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, facsimile, electronic mail or other electronic format, 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 deter-mination.
(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.
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 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.
(d) In the case of contracts of the types identified pursuant to subparagraph (l) 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 obligated to pay an indirect 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.
(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 firm that has not been certified as an MBE, WBE or EBE in accordance with section 1304 of the charter.
(h-1) Notwithstanding any provision of this section to the contrary, credit shall be given for work by a contractor or subcontractor that is certified as a minority or women-owned business enterprise pursuant to the executive law where such credit is required by section 311 of the charter or other provision of law, including but not limited to the New York City Rikers Island Jail Complex Replacement Act, part KKK of chapter 59 of the laws of 2018, and the New York City BQE Design-Build Act, part QQQ of chapter 59 of the laws of 2018.
(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.
(l) 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 firm that is not certified in accordance with section 1304 of the charter before the date that the subcontractor completes the work under the subcontract.
(c-1) Notwithstanding any provision of this section to the contrary, credit shall be given for work by a contractor or subcontractor that is certified as a minority or women-owned business enterprise pursuant to the executive law where such credit is required by section 311 of the charter or other provision of law, including but not limited to the New York City Rikers Island Jail Complex Replacement Act, part KKK of chapter 59 of the laws of 2018, and the New York City BQE Design-Build Act, part QQQ of chapter 59 of the laws of 2018.
(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.
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.
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, 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, including but not limited to, contracts valued at or below the micropurchase limit as set forth in the rules of the procurement policy board in paragraph (ii) of subdivision (c) of section 3-08 of title 9 of the rules of the city of New York, contracts valued above the micropurchase limit but at or below the small purchase limit as defined in the rules of the procurement policy board in subdivision (a) of section 3-08 of title 9 of the rules of the city of New York, contracts valued above the small purchase limit 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 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;
(ii) 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;
(iii) 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
(iv) 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 detailed explanation 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 January 31 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 in a non-proprietary format that permits automated processing at the time the reports are submitted.
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 l 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.
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.
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 the computerized data system maintained pursuant to subdivision b of section 6-116.2, or any successor to such system, as caution data.
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.
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 red fifteen of the charter;
(6) sole source procurements pursuant to section three hundred twenty-one of the charter;
(7) contracts for human services;
(8) contracts awarded to not-for-profit organizations; and
(9) portions of a contract that the director determines should be exempt because, after an extensive search conducted by the contracting agency, it appears that there are not MBE, WBE or EBE firms available to perform the work. Upon making such a determination the director may specify portions of the contract representing opportunities for participation by subcontractors that are not exempt. The division shall promulgate rules setting forth the criteria that agencies shall consider in making such requests for exemption.
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.
Advisory board. There shall be an advisory board to enhance procurement opportunities for minority and women-owned businesses.
(1) Such board shall consist of a chair appointed by the mayor and no fewer than ten members, all of whom shall be appointed by the mayor and shall serve at the pleasure of the mayor.
(2) Such board shall:
(a) Advise the mayor on M/WBE issues and on methods to increase M/WBE participation in city procurement;
(b) Provide information to firms owned by women and minority group members about programs and opportunities for M/WBEs in order to increase participation by such firms in city contracting, and encourage them to become certified as M/WBEs; and
(c) Educate relevant stakeholders and constituencies in order to support the city’s efforts to increase M/WBE opportunities through regulatory and legislative measures.
(3) The chair of the board may direct the board to gather or disseminate information and convene meetings in order to improve information sharing about M/WBE issues and opportunities and to develop and provide advice.
§ 6-129.1 Nondiscrimination in public contracting.
For purposes of this section, the term “contract” means any agreement, purchase order or other instrument whereby the city is committed to expend or does expend funds in return for goods, services or construction.
It is unlawful for an agency to deny a contract because of the actual or perceived race, creed, color, national origin, age, gender, disability, sexual orientation or alienage or citizenship status of the owners of the bidder or proposer.
This section does not prohibit any agency from giving preference in the award of a contract to bidders or proposers owned by persons protected by the provisions of this section, when such preference is required or permitted by any law or regulation of the United States, the state of New York or the city of New York.
A bidder or proposer who believes that a violation of the requirements of this section has occurred may protest an agency determination pursuant to the rules of the procurement policy board.
§ 6-130 New York state food purchased by city agencies.*
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.
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.
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).
The city chief procurement officer shall collect the information provided by vendors pursuant to subdivision c of this section.
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.
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.
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.
§ 6-130 Prevailing wage for building service employees in city leased or financially assisted facilities.*
Definitions. For purposes of this section, the following terms have the following meanings:
“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.
“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.
“City development project” means any project that: (a) is a large development project or a residential project; and (b) has received financial assistance. The term “city development project” shall not include a project of the health and hospitals corporation, a supportive housing project, or a preservation project.
“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 as described by paragraph b of subdivision 1 of section 1301 of the charter.
“Comptroller” means the comptroller of the city.
“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.
“Converted public housing building” means any building converted from section 9 of the United States Housing Act of 1937, as amended, to section 8 of such act by the New York city housing authority.
“Converted public housing building service worker” means any building service worker employed at a converted public housing building that is a beneficiary of federal assistance under the United States Housing Act of 1937, as amended, at the time such worker performs such building service work.
“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. The term “covered developer” shall not include any not-for-profit organization, except where a not-for-profit organization receives financial assistance in relation to a city development project that is a residential project. Further, such term shall not include a business improvement district, a small business, or an otherwise covered developer whose industry conducted at the project location is manufacturing, as defined by the North American Industry Classification System.
“Covered lessor” means any person entering into a lease with a contracting agency.
“Financial assistance” means assistance that is provided to a covered developer or protected 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 or protected developer enters into a written agreement with the city or city economic development entity is expected to have a total present financial value of $1,000,000 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, is 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 includes 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.
“Large 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 is expected to be larger than 100,000 square feet.
“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 51 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 80 percent of the total square footage of the building to which the lease applies. Such agreements do not include agreements between not-for-profit organizations and a contracting agency.
“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 501 of the United States internal revenue code.
“On-site supportive services” means the provision of services to residents that may include, but are not limited to, assistance with the physical health, mental health, and substance abuse needs of such residents.
“Preservation project” means a (i) small residential project; or (ii) residential project that includes an existing building that is subject to a regulatory agreement with a federal, state or local government agency, provided that such agreement requires all of the residential units, other than units for resident employees of such building, to be affordable for households earning on average up to 50 percent of the area median income, adjusted for household size, and provided, further, that such project receives financial assistance: (A) solely in the form of a tax benefit or (B) that averages less than $35,000 per residential unit, except that “preservation project” shall not include a supportive housing project.
“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 labor law. As provided under section 231 of the 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.
“Protected wage” means the rate of wages and cost of benefits paid to a building service employee in a preservation project on the date that the financial assistance for such project is received plus an annual increase to account for any change in the cost of living and in the cost of providing benefits. Such increase shall be determined by a standard determined pursuant to rule, as required by paragraph (9) of subdivision d of this section.
“Protected developer” means any person receiving financial assistance for a preservation project, except that “protected developer” shall not include a business improvement district.
“Received” means the execution of a written instrument that sets forth the provision of financial assistance to a covered developer or protected developer by the city or a city economic development entity.
“Residential project” means a project undertaken by a city agency or a city economic development entity to develop or improve no less than 120 residential units in one or more buildings.
“Small business” means an entity that has annual reported gross revenues of less than $5,000,000. 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.
“Small residential project” means a project: (a) undertaken by a city agency or a city economic development agency to improve no more than 119 residential units in one or more buildings; and (b) that has received financial assistance.
“Supportive housing project” means a project for the provision of housing in which: (i) a developer has entered into a regulatory agreement with a federal, state or local government entity that requires: (A) at least 50 percent of the residential units in such project be reserved for homeless, disabled individuals or homeless families with a disabled head-of-household, and (B) the provision of on-site supportive services to the residents of at least 50 percent of the residential units, and (ii) the remaining 50 percent of the residential units in such project be rented to households earning, on average, up to 80 percent of the area median income, adjusted for household size.
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 lessor 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.
Prevailing wage in city development projects required.
(1) Except with regard to converted public housing building service workers in connection with a city development project or a preservation project, the following requirements shall apply to covered developers and protected developers:
(A) 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.
(B) Protected developers shall ensure that all building service employees performing building service work in connection with a preservation project are paid no less than the protected wage.
(2) Prior to commencing work at a city development project, and annually thereafter, every covered developer shall provide to the city or the city economic development entity and the comptroller an annual certification executed under penalty of perjury that all building service employees subject to subparagraph (A) of paragraph 1 of this section, who are 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. Prior to commencing work at a preservation project, and annually thereafter, every protected developer shall provide to the city or the city economic development entity and the comptroller an annual certification executed under penalty of perjury that all building service employees subject to subparagraph (B) of paragraph 1 of this section, who are employed at a preservation project by the protected developer or under contract with the protected developer to perform building service work will be and/or have been paid no less than the protected 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 preservation project, or under contract with the covered developer or protected developer. Such certification shall be certified by the chief executive or chief financial officer of the covered developer or protected 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 and protected developer shall maintain original payroll records for each building service employee subject to subparagraphs (A) or (B) of paragraph 1 of this section 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 or protected 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 or protected 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 or preservation project subject to the requirements of this section, a covered developer or protected developer shall post in a prominent and accessible place at every such city economic development project or preservation project, as applicable, and provide each building service employee subject to subparagraphs (A) or (B) of paragraph 1 of this section 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 such building service employees that if they have been paid less that the prevailing wage or protected wage, as applicable, they may notify the comptroller and request an investigation. Such notice shall be provided in English and Spanish. Such notice shall remain posted for the duration of the applicable period as set forth in paragraph 6 of this subdivision 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’ or protected developers’ obligations under this section, and the city shall in turn provide those written notices to covered developers and protected 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 or protected 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.
Enforcement.
(1) 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, covered developer or protected 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’, covered developers’ and protected developers’ 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 labor law, request that the relevant contracting agency or entity withhold any payment due to the covered lessor, covered developer or protected 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, covered developer or protected 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 or protected 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 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 25 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 or protected 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 50 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, covered developer or protected 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, covered developer or protected 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 lessor, covered developer or protected developer 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.
(9) The mayor, or an agency designated by the mayor shall promulgate a rule establishing a standard by which to calculate an increase in the rate of wages to account for any change in the cost of living and a standard by which to calculate any increase in the cost of benefits to account for changes in the cost of such benefits.
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.
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.
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.
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.
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.
§ 6-131 Public online database.
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.
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
§ 6-132 Posting of notice of whistleblower protection rights.
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.
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.
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.
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.
§ 6-133 Notification of project cost increases.
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.
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.
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.
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.
§ 6-134 Living Wage for Employees in City Financially Assisted Workplaces.
This section shall be known as and may be cited as the “Fair Wages for New Yorkers Act”.
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.
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.
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.
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.
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.
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.
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.
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.
§ 6-136 Reporting on preferred source procurement.
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.
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.
§ 6-138 Participation by veteran owned business enterprises in city procurement.
The commissioner of the department of small business services, in consultation with the city chief procurement officer, shall analyze veteran owned business enterprises and opportunities for such business enterprises in city procurements and shall, by December 1, 2014, determine the need for a citywide program to promote opportunities in city procurement for veterans. At such time, the commissioner shall submit to the council a report on such analysis including the basis for such determination. If the commissioner determines that there is a need for such a citywide program, such report shall also contain recommendations concerning measures to enhance the opportunities of such businesses with respect to city procurement, which shall include but need not be limited to, outreach and notification of contract opportunities, certification of veteran owned business enterprises, recommendations regarding the establishment of participation goals, and tracking and reporting the utilization of such business enterprises.
§ 6-139 Worker cooperatives.
Definitions. As used in this section:
“City chief procurement officer” means 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.
“Commissioner” means the commissioner of small business services or the commissioner of any successor agency thereto.
“Department” means the department of small business services or any successor agency thereto.
“Non-member worker” means, with respect to a worker cooperative, a natural person who works for such cooperative and who is not a worker-member of such cooperative.
“Worker cooperative” means a business in which the workers are represented on the board of directors and the workers control the majority of the voting stock, or if the business is held in a trust which controls the majority of the voting stock, the trustees are elected by the workers. The term “worker cooperative” includes a worker cooperative as defined in section 81 of the cooperative corporations law.
“Worker-member” means, with respect to a worker cooperative, a natural person who works for such cooperative and holds voting stock in such cooperative.
No later than six months after the end of each fiscal year, beginning with the 2016 fiscal year, the city chief procurement officer shall, with the cooperation of all relevant agencies, prepare and submit to the speaker of the council and the mayor, and publish on the mayor’s office of contract services website, a report containing, at a minimum, the following information for such fiscal year:
the number and total dollar value of city contracts awarded to worker cooperatives, disaggregated by agency and type of business;
the number and total dollar value of all city contracts, disaggregated by agency and type of business; and
the percentage of city contracts awarded to worker cooperatives, disaggregated by agency and type of business.
No later than six months after the end of each fiscal year, beginning with the 2016 fiscal year, the commissioner, in consultation with the city chief procurement officer, shall submit to the speaker of the council and the mayor, and shall make publicly available online, a report containing, at a minimum, the following information:
(a) the number of worker cooperatives that applied for assistance from the department in the previous fiscal year; the number of worker cooperatives assisted by the department in the previous fiscal year; the industries in which such worker cooperatives operate and the community districts in which such worker cooperatives are headquartered; and the specific actions taken by the department in the previous fiscal year to assist the development of worker cooperatives, including, but not limited to, the services rendered by the department to enhance the ability of such worker cooperatives to compete for and obtain city contracts; and
(b) for each of the worker cooperatives assisted by the department in the previous fiscal year as described in subparagraph (a) of this paragraph, the department shall furnish the name and address of such worker cooperative; the number of natural persons who became worker-members during the previous fiscal year, where made available to the department; the number of non-member workers who were hired during the previous fiscal year, where made available to the department; and a summary of the services provided by the department to such worker cooperative in the previous fiscal year.
No later than six months after the end of every third fiscal year, beginning with the 2016 fiscal year, the commissioner, in consultation with the city chief procurement officer, shall submit to the speaker of the council and the mayor, and shall make publicly available online, a report containing, at a minimum, the following information:
(a) a description of difficulties or obstacles that worker cooperatives encounter when competing for city contracts;
(b) recommended measures to lessen the effects of such difficulties and obstacles and to enhance the ability of worker cooperatives to compete for and obtain city contracts; and
(c) a description of the impact of services provided by the department to worker cooperatives in the previous three fiscal years, to the extent such impact can be assessed through consultation with such worker cooperatives and entities that provide advice or other services for worker cooperatives located in the city, to the extent such entities can be identified through the consultations described in paragraph four of this subdivision. No such description shall be required for any fiscal year prior to the 2016 fiscal year.
By January 1, 2016, the commissioner, in consultation with the city chief procurement officer, shall submit to the speaker of the council and the mayor, and shall make publicly available online, a report that shall include, for each entity that received funding from the department in connection with the worker cooperative business development initiative as described in schedule C of the fiscal year 2015 adopted expense budget, a summary of the actions taken by such entity, using such funding, to assist the development of worker cooperatives, including but not limited to a description of any workshops, technical assistance or financial assistance provided.
In preparing the report required by paragraph two of this subdivision, the commissioner and city chief procurement officer shall, to the extent feasible, consult with worker cooperatives and entities that provide advice or other services for worker cooperatives located in the city and shall include in such report a summary of findings from such consultations.
Except as provided in paragraph three of subdivision c of this section, for purposes of any report required by this section, the report shall be limited to worker cooperatives that have identified themselves to the department or a relevant agency through the electronic system used for vendor enrollment with the city or through the department’s electronic customer relationship management system.
§ 6-140 Car sharing in the city fleet.
For the purposes of this section, the following terms shall have the following meanings:
(1) “Car sharing” means a shared-use motor vehicle program that provides a geographically distributed fleet of motor vehicles that is made available to entities or persons on an hourly or short-term basis, or provides technology that enables the city to share internally its city-owned or leased vehicles.
(2) “Car sharing organization” means an organization that provides pre-approved members with access to motor vehicles at geographically distributed locations for an hourly or short-term rate that includes fuel, maintenance, and insurance, or provides technology and services that enable the city to share internally its city-owned or leased vehicles.
(3) “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.
(4) “Motor vehicle” means a vehicle operated or driven upon a public highway which is propelled by any power other than muscular power, except electrically-driven mobility assistance devices operated or driven by a person with a disability. For the purposes of this section, such term shall not include vehicles that are used for emergency response, inspection or enforcement by agencies including, but not limited to, the department of environmental protection, the department of sanitation, the department of transportation, the office of emergency management, the sheriff’s office of the department of finance, the police department, the fire department, and the department of correction.
(5) “Light-duty vehicle” means a motor vehicle that is a maximum of eighty-five hundred pounds in gross vehicle weight and includes sedans, utility vehicles, pick-up trucks and vans.
The city shall establish a car sharing program for city agencies utilizing light-duty motor vehicles.
Beginning January 1, 2016 and during each of the following three consecutive years thereafter through December 31, 2019, the city shall remove from service without replacement at least two percent of the total existing number of light-duty motor vehicles in the city fleet through the use of strategies including, but not limited to, car sharing. For the year beginning January 1, 2020, the city shall remove from service without replacement at least one percent of the total existing number of light-duty motor vehicles in the city fleet through the use of strategies including, but not limited to, car sharing. This subdivision shall not apply to light-duty motor vehicles that have been added to any individual city agency’s fleet in connection with a proportional increase in such agency’s headcount resulting from programmatic or operational changes in such agency’s functions or duties, provided that the city shall consider the use of such strategies including, but not limited to, car sharing with respect to such light-duty motor vehicles.
No later than February 1, 2017 and no later than every February 1 thereafter through February 1, 2021, the mayor shall submit to the comptroller and the speaker of the council a report regarding the car sharing program and reductions in the city fleet during the immediately preceding calendar year. Such reports shall include, but not be limited to:
(1) an evaluation of such car sharing program;
(2) recommendations, if any, for changing any component(s) of such car sharing program;
(3) data regarding the use of car sharing, disaggregated by city agency;
(4) the utilization of services of car sharing organizations, if applicable;
(5) the impact of such car sharing program on expenses related to the city fleet; and
(6) the number and percentage of motor vehicles removed from the city fleet since the inception of such car sharing program and, if applicable, the number and percentage of motor vehicles removed in the preceding twelve months. In addition, the report due no later than February 1, 2021 shall contain an evaluation of the size of the city fleet and recommendations, if any, for further reducing the size of such fleet.
§ 6-141 Side guards in the city fleet.
Definitions. For the purposes of this section:
Department. The term “department” means the department of citywide administrative services.
Large vehicle. The term “large vehicle” means a motor vehicle with a manufacturer’s gross vehicle weight rating exceeding 10,000 pounds. “Large vehicle” does not include street sweepers, fire engines, car carriers, off road construction vehicles, or any specialized vehicles or vehicle types on which side guard installation is deemed impractical by the department pursuant to subdivision c of this section.
Side guard. The term “side guard” means a device fit to the side of a large vehicle designed to prevent pedestrians and bicyclists from falling into the exposed space between the front axle and the rear axle of such vehicles. Except where otherwise authorized by rule of the department, side guards: shall allow for a maximum 13.8 inch ground clearance, maximum 13.8 inch top clearance up to four feet in height, and a minimum 440 pound impact strength; must achieve a smooth and continuous longitudinal (forward to backward) impact surface flush with the vehicle sidewall; may include rail style guards, provided that such rails be no less than four inches tall and no more than 11.8 inches apart; and may incorporate other vehicle features such as tool boxes and ladders.
Side guards. No later than January 1, 2024, all large vehicles in the city fleet shall be equipped with side guards.
The department shall have the authority to promulgate any rules necessary to administer the provisions of this section, including but not limited to rules establishing side guard specifications that depart from the default specifications set forth in subdivision a of this section when such departure is deemed necessary by the department, as well as rules governing when the installation of side guards on certain city vehicles is impractical and will not be required. The department shall be authorized to inspect side guards and side guard specifications for compliance with the requirements of this section.
§ 6-142 Subcontractor resource guide.
For purposes of this section, the following terms shall have the following meanings:
“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.
“Contractor” means a person or entity who is a party to a contract with a contracting agency valued in excess of $100,000.
“Subcontractor” means a person or entity who is a party or a proposed party to a contract with a contractor valued in excess of $100,000.
“Department” means the department of small business services.
The department, in consultation with the city chief procurement officer, shall develop and make available to all contracting agencies a subcontractor resource guide. Such resource guide shall be in the form of a written document, using plain and simple language, which provides subcontractors with key information on city contracting. Such resource guide may include, but not be limited to, information about the rights of subcontractors with respect to payment by the contractor, available city services to assist subcontractors, and contact information for relevant city agencies. The department shall coordinate with the city chief procurement officer to update such resource guide as necessary and make such resource guide available on the website of the department.
Each contracting agency shall provide a link to the subcontractor resource guide published on the department’s website, as appropriate.
The subcontractor resource guide shall serve as an informational document only and nothing in this section or in such document shall be construed to create a cause of action or privity of contract between the agency and the subcontractor, or to constitute a defense in any legal, administrative or other proceeding.
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.
§ 6-143 Reporting on the expenditure of Hurricane Sandy funds.
Definitions. For purposes of this section, the following terms shall have the following meanings:
(1) “Hurricane Sandy funds” means any federal funds, or local or state funds derived from federal funds, appropriated by Federal Public Law 113-2, an act making supplemental appropriations for the fiscal year September 30, 2013, to improve and streamline disaster assistance for Hurricane Sandy, that are administered or disbursed by the city and provided to a recipient in an amount exceeding one hundred thousand dollars to recover or rebuild from Hurricane Sandy.
(2) “Hurricane Sandy funded projects” means any construction, services, or programs, paid for, in whole or in part, with any Hurricane Sandy funds.
(3) “Recipient” means any person or entity, including any individual, sole proprietorship, partnership, association, joint venture, limited liability company, corporation or any other form of doing business, awarded Hurricane Sandy funds.
The City shall establish and maintain a public online searchable and interactive database on the website of the city that shall include summaries of the administration of Hurricane Sandy funds as set forth in this section. The data included in such database shall be available in a format that permits automated processing and shall be available without any registration requirement, license requirement or restrictions on their use, provided that the city may require a third party providing to the public any data from such database, or any application utilizing such data, to explicitly identify the source and version of the data, and a description of any modifications made to such data. The database shall include but not be limited to the following information:
(1) For each Hurricane Sandy funded project for construction, the name of the contractor, and subcontractor, if known, a detailed description of the Hurricane Sandy funded project, including, but not limited to, the physical address, block and lot numbers, estimated dates of start and completion, and purpose of the project in relation to the city’s recovery and rebuilding efforts, the value and type of funding provided, including but not limited to grants, loans, contracts, or other such forms of financial assistance, the total number of jobs at the time of award of Hurricane Sandy funds, and the total number of additional jobs to be created and retained over the life of the Hurricane Sandy funded project. For Hurricane Sandy funded projects relating to the rebuilding or repairing of four or fewer residential units, data shall not include the physical address, block and lot numbers, site-specific dates of start and completion and the value and type of funding provided; any data provided for such projects shall be aggregated by zip code;
(2) For each executed city procurement contract associated with Hurricane Sandy funding, including, but not limited to, the name of the contract vendor, contract identification number, purpose of the contract, original contract value in dollars, revised contract value in dollars, if applicable, whether the bid was subject to public bidding, original contract start and end date, revised contract end date, if applicable, contract status, information on the contract recipient’s qualification for receipt of Hurricane Sandy funds for a Hurricane Sandy funded project, and the total number and type of jobs to be expected to be created and retained over the life of the Hurricane Sandy funded project. For city procurement contracts related to the rebuilding or repairing of four or fewer residential units, data shall not include information on the contract recipient’s qualification for receipt of Hurricane Sandy funds for a Hurricane Sandy funded project if the recipient is a homeowner, tenant or resident of the affected units; and
(3) For each grant or loan issuance associated with Hurricane Sandy funding, including, but not limited to the recipient name, the purpose of the grant or loan, the grant or loan award amount, whether the grant or loan was subject to a selective award process and the nature of that process, grant or loan name, award status, information on the grant or loan recipient’s qualification for receipt of Hurricane Sandy funds for a Hurricane Sandy funded project, and the total number and type of jobs to be expected to be created and retained over the life of the Hurricane Sandy funded project. For grants or loans related to the rebuilding or repairing of four or fewer residential units, data shall not include the grant or loan recipient’s name or information on the recipient’s qualification for receipt of Hurricane Sandy funds for a Hurricane Sandy funded project if the recipient is a homeowner, tenant or resident of the affected unit, and other grant or loan data provided for grants or loans related to the rebuilding or repairing of four or fewer residential units shall be aggregated by zip code;
In addition to the provisions of subdivision b of this section, the website shall also include:
(1) the total number of jobs at the time of award of Hurricane Sandy funds and the total number of additional jobs to be created and retained in each Hurricane Sandy funding program (in the case of Community Development Block Grant assistance) or for each agency (in the case of Federal Emergency Management Agency), aggregated by zip code, based upon the best practicable methodology for calculating such number over the life of the Hurricane Sandy funded project, including the number of permanent full-time employees, the number of temporary full-time employees, the number of permanent part-time employees, the number of temporary part-time employees, and the total number of contract employees;
(2) the percentage of employees on Hurricane Sandy funded projects earning up to twenty thousand dollars per year; the percentage of employees on Hurricane Sandy funded projects earning more than twenty thousand dollars per year up to thirty-five thousand dollars per year; the percentage of employees on Hurricane Sandy funded projects earning more than thirty-five thousand dollars per year up to fifty thousand dollars per year; the percentage of employees on Hurricane Sandy funded projects earning more than fifty thousand dollars per year;
(3) the percentage of full-time employees on Hurricane Sandy funded projects and the percentage of part-time employees on Hurricane Sandy funded projects to whom their employers offer health benefits;
(4) the zip code of residence of employees on Hurricane Sandy funded projects and the zip code of the Hurricane Sandy funded project location on which the employee is employed, except that where the number of employees from one zip code is between one and five, the number of employees shall be replaced with a symbol;
(5) where the information is available, whether the recipient has, within the past ten years, been criminally convicted of any crime related to truthfulness or business conduct and the 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 recipient;
(6) where the information is available, whether the recipient participates in a union construction apprenticeship program and/or other local workforce development program, and, if any, the names of such programs;
(7) whether the recipient of Hurricane Sandy funds executed any legal documents subjecting any of the work to be done using such funds to the requirements of one or more prevailing wage laws;
(8) whether the Hurricane Sandy funded project is subject to and in compliance with Section 3 of the Housing & Urban Development Act of 1968; and
(9) a list of all contractors, and subcontractors performing work on the Hurricane Sandy funded project. The provisions of this subdivision shall not apply to projects, grants or loans related to the rebuilding or repairing of four or fewer residential units if the recipient is a homeowner, tenant or resident of an affected unit.
The provisions of this section shall not be construed to require the disclosure of information concerning contractors selected by recipients of Hurricane Sandy funds in relation to the rebuilding or repairing of four or fewer residential units where such recipients are homeowners, tenants or residents of affected units.
Notwithstanding the provisions of this section, the website required pursuant to this section shall not be used to distribute information which, if disclosed, would jeopardize compliance with local, state or federal law, threaten public health, welfare, or safety, or harm the competitive economic position of a party.
The public online database prescribed in subdivision b of this section shall be updated on a monthly basis.
This section shall not be construed to create a private right of action to enforce its provisions. Failure to comply with this section shall not result in liability for the city. The city shall not be deemed to warranty the completeness, accuracy, content or fitness for any particular purpose or use of any information provided by the city pursuant to this section, including but not limited to information provided to the city by a third party or information provided by the city that is based upon information provided by a third party.
§ 6-144 [Reporting on the expenditure of COVID-19 funds.]
Definitions. For purposes of this section, the following terms have the following meanings:
COVID-19. The term “COVID-19” means the 2019 novel coronavirus or 2019-nCoV.
COVID-19 expenditure. The term “COVID-19 expenditure” means any expense or capital expenditure by a city agency for services, goods or materials, programs or construction paid for, in whole or in part, with any COVID-19 funds, provided that such term shall only include personnel expenditures that are tracked as such for reimbursement.
COVID-19 funds. The term “COVID-19 funds” means any federal, state or local funds allocated to or expended by any city agency to provide assistance for responding to COVID-19, including, but not limited to, preventing the spread among the population, containing or treating COVID-19 or mitigating the direct or indirect effects of COVID-19.
Recipient. The term “recipient” means any person or entity, including any individual, sole proprietorship, public authority, partnership, association, joint venture, limited liability company, corporation or any other form of doing business, awarded COVID-19 funds.
The mayor shall establish and maintain a public online searchable and interactive database on the website of the city that shall include summaries of the administration of COVID-19 funds as set forth in this section. The data included in such database shall be available in a format that permits automated processing and is downloadable, and shall be available without any registration requirement, license requirement or restrictions on their use, provided that the city may require a third party providing to the public any data from such database, or any application utilizing such data, to explicitly identify the source and version of the data, and a description of any modifications made to such data. The database shall include but not be limited to the following information, which shall, to the extent practicable, be disaggregated by federal, state and local COVID-19 funds, and, for federal funds, by the source of such funds:
(a) For each COVID-19 expense expenditure, where applicable, the administering agency, the unit of appropriation, the budget code, the amount submitted for reimbursement, the amount reimbursed and the source of reimbursement;
(b) For each COVID-19 capital expenditure, where applicable, the administering agency, the budget line, the project identification number, the project description, the amount submitted for reimbursement, the amount reimbursed and the source of reimbursement;
(c) For each executed city procurement contract funded in whole or in part by COVID-19 funds, the awarding agency, the unit of appropriation, the budget code, the name and address of the contractor and, if known, subcontractors, the contract identification number, the purpose of the contract, the original contract value in dollars and any applicable contract modification value in dollars, the contract award method, the contract type, the contract start and end date and any revised contract end date, the original contract registration date and the registration date of any applicable contract modification, the status of any contractor and, if known, subcontractor, as a minority and women-owned business enterprise, the contract status, to the extent practicable the amount spent to date on the contract and, if known, subcontracts, and information on the value of the contract and, if known, subcontracts, eligible for reimbursement from a COVID-19 funds award; and
(d) For each grant or loan issuance associated with COVID-19 funds, the awarding agency, the recipient name, the recipient’s zip code, the grant or loan name, the purpose of the grant or loan, the grant or loan award amount, whether the grant or loan was subject to a selective award process and the nature of that process, the award status and information on the value of the grant or loan eligible for reimbursement from a COVID-19 funds award.
To the extent that the city is awarded funding from any federal appropriation related to COVID-19 that is not covered by paragraph 1 of subdivision b of this section, the database shall include the amount of such funds, disaggregated by source, and how such funds were allocated and expended by agency, unit of appropriation and budget code. "Notwithstanding any other provision of this section the database required by subdivision b of this section shall not be used to distribute information which, if disclosed, would jeopardize compliance with local, state or federal law, threaten public health, welfare, or safety, or harm the competitive economic position of a recipient."] ["The database prescribed in subdivision b of this section shall be updated each quarter within 30 days of the end of such quarter."]"This section shall not be construed to create a private right of action to enforce its provisions. Failure to comply with this section shall not result in liability for the city. The city shall not be deemed to warranty the completeness, accuracy, content or fitness for any particular purpose or use of any information provided by the city pursuant to this section, including but not limited to information provided to the city by a third party or information provided by the city that is based upon information provided by a third party."
Editor’s note: Sections 3, 4, and 5 of L.L. 2020/076 provide:§ 3. Section 6-144 of the administrative code of the city of New York, as added by section two of this local law, shall not require reporting on any contracts entered into prior to the effective date of this local law where the reporting requirements of this local law would require collecting information that is not available to the city, and cannot reasonably be obtained by the city.
§ 4. If any provision of section 6-144 of the administrative code of the city of New York, as added by section two of this local law, or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such judgment shall not effect, impair or invalidate the remainder of such section.
§ 5. Data maintained pursuant to section 6-144 of the administrative code of the city of New York, as added by section two of this local law, shall also be subject to chapter 5 of title 23 of such administrative code, where such chapter is otherwise applicable.
Chapter 2: Franchises
§ 6-201 Definition.
The term “the streets of the city” as used in this chapter shall include streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways, docks, bulkheads, wharves, piers and public grounds or waters within or belonging to the city.
§ 6-202 Stage and omnibus routes forbidden until franchise obtained.
It shall be unlawful for any omnibus route or routes for public use, or any alteration or extension thereof, or any alteration or extension of any existing stage or omnibus route to be operated in or upon any street within the city until and unless a franchise or right therefor shall be obtained from the board of estimate in like manner as, and subject to the limitations and conditions relating to, franchises or rights provided and imposed by the charter and the code.
§ 6-203 Long Island railroad.
No freight or passenger car detached from an engine of the Long Island railroad company shall remain longer than ten minutes in any street. Bituminous coal shall not be used on any engine running upon such railroad. Whenever platforms are placed in the streets for accommodation of passengers, such company shall at its own expense keep the entire street between the platform and the curb in a cleanly and passable condition and this provision shall be construed to apply to each station and each platform wherever erected by such company within the city.
Any railroad, or the manager or agent or employee thereof, who shall violate any provision of this section, or who shall permit same to be violated, shall be liable to a penalty of one hundred dollars.
§ 6-204 Grade crossings; gates and attendants.
The Bronx.
Every person operating or controlling any railroad in the borough of the Bronx, upon which cars are drawn by locomotive engines, other than those known as “dummies”, shall erect and maintain suitable and substantial gates or doors on either side of such railroad, at every point in such borough at which its roads or tracks cross any public street, at the grade thereof. Such gates or doors shall be kept well painted and in good repair, and shall be attended at all times during the approach and passage of cars or trains by sober, careful and experienced persons, whose duty it shall be to keep the tracks clear of all horses, cattle and vehicles, to warn all the persons against crossing the tracks during the approach of any train, locomotive or car, and to close the gates or doors at least one minute before the passage of any locomotive, engine or car over such public street. No person operating or controlling any railroad in the borough of the Bronx, shall run or allow to be run any locomotive or locomotive tender without cars across any public street in such borough, unless the gates or doors at such crossing are closed or down.
Any railroad, or the manager or agent or employee thereof, who shall violate any provision of this subdivision, or who shall permit the same to be violated, shall be liable to a penalty of one hundred dollars.
Brooklyn.
At each street crossing between Linwood street and Flatbush avenue, in the borough of Brooklyn, persons shall be constantly stationed, at all hours of the night and day when trains are in motion, and all crosswalks between such street crossings shall be properly guarded by strong, heavy gates at least twenty feet in width, at each street crossing, which shall be closed before the passage of any engine or train.
Any railroad, or the manager or agent or employee thereof, who shall violate any provision of this subdivision, or who shall permit the same to be violated, shall be liable to a penalty of one hundred dollars.
Disregard of closed gates.
It shall be unlawful to attempt to cross the tracks of any railroad at any street crossing, while the gates for the protection of such crossings are closed or being closed.
Any railroad, or the manager or agent or employee thereof, who shall violate any provision of this subdivision, or who shall permit the same to be violated, shall be liable to a penalty of one hundred dollars. Violation of the provisions of this subdivision by a person, other than a railroad, or the manager or agent or employee thereof, shall be punishable by a fine of not exceeding ten dollars or by imprisonment not exceeding ten days, or by both.
§ 6-205 Obstruction of streets; penalty.
No train of cars, nor any part thereof, including the locomotive and tender, shall remain or be left across or upon any street or sidewalk, so as to obstruct or prevent free travel thereon for a longer period than five minutes, during any period or during any hour, unless the same shall be unavoidable.
Any railroad, or the manager or agent or employee thereof, who shall violate any provision of this section, or who shall permit the same to be violated, shall be liable to a penalty of one hundred dollars.
§ 6-206 Railroads from Long Island to East river to have unobstructed right-of-way.
Any railroad running from any part of Long Island to the East river shall have unobstructed right to run to the East river with their locomotives and cars, but shall furnish suitable guards or signals at the street crossings, for the proper protection of the public.
Any person who shall violate any provision of this section, upon conviction thereof, shall be punished by a fine of not more than twentyfive dollars, or imprisonment for thirty days, or both.
§ 6-207 Release of certain railroad obligations.
The board of estimate shall be without power to compromise or release any liability or obligation to the city which may be compromised or released pursuant to section one hundred seventy-three, railroad law, but such liabilities and obligations shall be and remain inviolable.
§ 6-208 Copies of franchise resolutions and contracts to be filed in certain offices and to be public records.
Within five days after the final execution of any contract made pursuant to chapter fourteen of the charter, a copy of such contract, together with the resolution authorizing the same, duly attested by the secretary of the board of estimate, shall be transmitted to each of the following: the comptroller, the commissioner of finance, the corporation counsel, the city clerk, the commissioner of transportation and the public service commission, to be preserved by them in the archives of their departments or offices. All such certified copies shall be deemed to be public records.
Chapter 3: Environmental Purchasing
Subchapter 1: General Provisions
§ 6-301 Definitions.
For the purposes of this chapter only, the following terms shall have the following meaning:
(1) “Agricultural wastes” means materials that remain after the harvesting or production of annual crops, including but not limited to rice, flax, wheat and rye.
(2) “Architectural coatings” means any coating to be applied to stationary structures and their appurtenances at the site of installation, to portable buildings at the site of installation, to pavements, or to curbs. This term shall not include the following: marine-based paints and coatings; coatings or materials to be applied to metal structures, such as bridges; or coatings or materials labeled and formulated for application in roadway maintenance activities.
(3) “Capital project” means a capital project as defined in section 210 of the charter that is paid for in whole or in part from the city treasury.
(4) “Carpet” means any fabric used as a floor covering, but such term shall not include artificial turf.
(5) “Carpet adhesive” means any substance used to adhere carpet to a floor by surface attachment.
(6) “Carpet cushion” means any kind of material placed under carpet to provide softness when it is walked upon.
(7) “Cathode ray tube” means any vacuum tube, typically found in computer monitors, televisions and oscilloscopes, in which a beam of electrons is projected on a phosphorescent screen.
(8) “City’s environmental purchasing standards” or “city environmental purchasing standard” means any standards set forth in this chapter and any directives, guidelines or rules promulgated by the director.
(9) “Composite wood or agrifiber products” means plywood, particleboard, chipboard, medium density fiberboard, standard fiberboard, orient strand board, glu-lams, wheatboard or strawboard.
(10) “Construction work” means any work or operations necessary or incidental to the erection, demolition, assembling or alteration of any building, but such term shall not include minor repairs.
(11) “Contractor” means any person or entity that enters into a contract with any agency, or any person or entity that enters into an agreement with such person or entity, to perform work or provide labor or services related to such contract.
(12) “Copier” means any device that makes paper copies of text or graphic material.
(13) “Covered electronic device” means: (i) any cathode ray tube, any product containing a cathode ray tube, any liquid crystal display (LCD), plasma screen or other flat panel television or computer monitor or similar video display product, any battery containing lead, cadmium, lithium or silver, any computer central processing unit that contains one or more circuit boards and includes any desktop computer or any laptop computer, any computer peripherals including, but not limited to, any keyboard, mouse and other pointing device, printer, scanner, facsimile machine and card reader, and any copier, but not including any automobile, household appliance, large piece of commercial or industrial equipment containing a cathode ray tube, a cathode ray tube product, a flat panel display or similar video display device that is contained within, and is not separate from, the larger piece of equipment, or any device used by emergency response personnel; or (ii) any other electronic device designated by the director.
(14) “CPG” means the Comprehensive Procurement Guideline for Products Containing Recovered Materials, as set forth in 40 CFR part 247.
(15) “Desktop computer” means any personal computer or workstation designed to operate only on alternating current power and to reside on or under a desktop.
(16) “Desktop-derived server” means any computer designed to provide services to other computers on a network and that contains an EPS12V or EPS1U form factor power supply.
(17) “Director” means the director of citywide environmental purchasing.
(18) “Electronic product environmental assessment tool” means a tool for evaluating the environmental performance of electronic products throughout their life cycle developed by the federal government and other stakeholders.
(19) “End-of-life management” means promoting the recycling or reuse of a product through features of the product or materials from which the product is manufactured.
(20) “ENERGY STAR labeled” means a designation indicating that a product meets the energy efficiency standards set forth by the United States environmental protection agency and the United States department of energy for compliance with the ENERGY STAR program.
(21) “Flow rate” means the volume, mass, or weight of water flowing past a given point per unit of time.
(22) “Green cleaning product” means any environmentally preferable cleaning product whose use has been determined to be feasible through the pilot program established pursuant to the local law that added subchapter 6 of this chapter or through any other testing and evaluation conducted by the director.
(23) “Hazardous substance” means any substance that, because of its quantity, concentration, or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety or to the environment if released into the workplace or the environment.
(24) “Incandescent lamp” means any lamp in which a filament is heated to incandescence by an electric current to produce visible light.
(25) “Lamp” means any glass envelope with a gas, coating, or filament that produces visible light when electricity is applied, but such term shall not include automotive light bulbs.
(26) “Local area network” means any two or more computers and associated devices that share a common communications line or wireless link and typically share the resources of a single processor or server within a small geographic area.
(27) “Minor repairs” means replacement of any part of a building for which a permit issued by the department of buildings is not required by law, where the purpose and effect of such work or replacement is to correct any deterioration or decay of or damage to such building or any part thereof and to restore same, as nearly as may be practicable, to its condition prior to the occurrence of such deterioration, decay or damage.
(28) “Persistent, bioaccumulative and toxic chemicals” means those chemicals that are toxic to living organisms, persist in the environment and build up in the food chain. This definition shall include any substance on the United States environmental protection agency’s list of priority chemicals published under the national partnership for environmental priorities, as well as hexavalent chromium, polybrominated biphenyls and polybrominated diphenyl ethers.
(29) “Postconsumer material” means a material or finished product that has served its intended use and has been diverted or recovered from waste destined for disposal, having completed its life as a consumer item. Postconsumer material is a part of the broader category of recovered materials.
(30) “Power supply” means any device intended to convert line voltage alternating current to one or more lower voltages of direct current.
(31) “Printer” means any device that prints the text or graphics output of a computer onto paper.
(32) “Reasonably competitive” means at a cost not exceeding that permissible under section 104-a of the general municipal law.
(33) “Recovered material” means waste materials and byproducts which have been recovered or diverted from solid waste, but such term does not include those materials and byproducts generated from, and commonly reused within, an original manufacturing process. For purposes of purchasing paper and paper products, “recovered material” includes “post-consumer recovered paper” and “recovered materials, for purposes of purchasing paper and paper products”, as those terms are defined in the CPG.
(34) “Recycled product” shall mean recycled product as defined in section 104-a of the general municipal law.
(35) “Volatile organic compound” means any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions, as specified in 40 CFR part 51.100.
§ 6-302 Applicability.
Except where otherwise provided, the provisions of this chapter shall apply to any product:
(1) purchased or leased by any agency;
(2) purchased or leased by any contractor pursuant to any contract with any agency where the director has designated such contract as one subject to this chapter in whole or in part; or
(3) purchased or leased by any contractor pursuant to any contract with any agency for construction work in any building; provided that this paragraph shall only require that such contractors meet the requirements of subdivisions a, b and c of section 6-313 and subdivisions a and b of section 6-306 of this chapter. Notwithstanding the foregoing, except when otherwise determined by the director, this paragraph shall not apply to any such contract:
(i) subject to green building standards pursuant to subdivision b of section 224.1 of the charter;
(ii) subject to energy efficiency standards pursuant to subdivision c of section 224.1 of the charter; provided, however, that this exception shall only apply to the purchase of energy using products and to the extent the purchase or lease of any such products is necessary for compliance with such subdivision;
(iii) subject to water efficiency standards pursuant to subdivision d of section 224.1 of the charter; provided, however, that this exception shall only apply to the purchase of water using products;
(iv) where construction work is for a portion of a building that is less than fifteen thousand (15,000) square feet;
(v) where construction work is in any building or portion of a building leased by the city; provided, however, that this subparagraph shall not apply to any product purchased or leased by any contractor pursuant to any contract with any agency for construction work that (1) is a capital project and (2) is in a building or portion of a building that is leased for the use of a single agency where such single agency’s lease is for more than fifty thousand (50,000) square feet of space; or
(vi) where the commissioner of the department of citywide administrative services determines that the requirements of this paragraph will result in significant difficulty in finding a suitable site for an agency facility and that such a circumstance could materially adversely affect the health, safety, or welfare of city residents.
Notwithstanding subparagraph (v) of paragraph 3 of subdivision a of this section, for any building where any single agency leases less than fifty thousand (50,000) but more than fifteen thousand (15,000) square feet of space, the contracting agency shall nonetheless make good faith efforts to apply subdivisions a, b and c of section 6-306 and subdivisions a and b of section 6-313 of this chapter to any capital construction work.
§ 6-303 Exemptions and waivers.
This chapter shall not apply:
(1) to any product purchased or leased before the effective date of the local law that added this chapter;
(2) to any procurement where federal or state funding restrictions precludes the city from imposing the requirements of this chapter;
(3) to small purchases pursuant to section three hundred fourteen of the charter;
(4) to emergency procurements pursuant to section three hundred fifteen of the charter;
(5) to intergovernmental purchases pursuant to section three hundred sixteen of the charter;
(6) where compliance with the city’s environmental purchasing standards would conflict with the purpose of chapter 3 of title 25 of this code;
(7) to any product if there are fewer than three manufacturers that produce such product meeting the city’s environmental purchasing standards and that are capable of producing any such product in a quantity and within a time period that are adequate for the city’s needs;
(8) where the contracting agency finds that the inclusion of a specification otherwise required by sections 6-306 or 6-310 of this chapter would not be consistent with such agency’s ability to obtain the highest quality product at the lowest possible price through a competitive procurement, provided that in making any such finding the contracting agency shall consider life-cycle cost-effectiveness; and
(9) where the contracting agency finds that the inclusion of a specification otherwise required by subchapters 5 or 6 of this chapter would not be consistent with such agency’s ability to obtain the highest quality product at the lowest possible price through a competitive procurement, provided that in making any such finding the contracting agency shall consider the health and safety benefits of such specification.
The city’s environmental purchasing standards may be waived by the director upon application by any agency:
(1) where compliance with the city’s environmental purchasing standards would conflict with any consumer, health or safety:
(i) regulation of any agency; or
(ii) requirement of the federal government or state of New York or any nationally recognized testing laboratory designated by the director; or
(2) for any product if there are fewer than five manufacturers that produce such product meeting the city’s environmental purchasing standards and that are capable of producing any such product in a quantity and within a time period that are adequate for the city’s needs.
Any application for any waiver pursuant to this section shall be made in writing by the applying agency. The director shall, within a reasonable period of time, issue a written determination on whether to grant any such waiver application and shall include an explanation of any such determination.
Except as otherwise provided in this chapter, the director may exempt from the provisions of this chapter up to the following total dollar amounts, provided such amounts shall be indexed to inflation beginning in the second year after the effective date of this local law, of contracts for goods or construction work in the following fiscal years if in his or her judgment such exemption is in the best interests of the city:
(1) for fiscal years 2007 and 2008, one hundred million dollars ($100,000,000);
(2) for fiscal year 2009, seventy-five million dollars ($75,000,000); and
(3) for fiscal year 2010 and any fiscal year thereafter, fifty million dollars ($50,000,000).
Subchapter 2: Oversight of Environmental Purchasing
§ 6-304 Director of citywide environmental purchasing.
There shall be a director of citywide environmental purchasing who shall:
develop, establish, as appropriate, by promulgation of rules and implement environmental purchasing standards, in addition to those set forth in this chapter, the purpose of which shall be to: conserve energy and water; increase the use of recycled and reused materials; reduce hazardous substances, with an emphasis on persistent, bioaccumulative and toxic chemicals; decrease greenhouse gas emissions; improve indoor air quality; promote end-of-life management; and reduce waste;
at least once every two years, review and, if necessary, update or revise the city’s environmental purchasing standards;
when promulgating any rules pursuant to this chapter, consider, as appropriate, any available scientific evidence, or specifications, guidelines or rules of other governmental agencies or organizations supporting the establishment of environmental purchasing standards, as well as the electronic product environmental assessment tool;
partner, as appropriate, with other levels of government or jurisdictions to establish joint environmental purchasing standards, including working with and encouraging state agencies that supervise contracts from which the city purchases goods pursuant to paragraph five of subdivision a of section 6-303 of this chapter to meet or exceed any relevant city environmental purchasing standard;
monitor agency compliance with the city’s environmental purchasing standards; and
submit an annual report to the speaker of the council and the mayor by October 1 of each year detailing the city’s progress in meeting the purposes of this chapter, as specified in subdivision a of this section, and the city’s environmental purchasing standards, which report shall at a minimum include:
(1) the total value of goods contracts entered into by any agency that comply with one or more city environmental purchasing standards;
(2) a list of all solicitations that include any product that is subject to this chapter with an indication of the environmental purchasing specifications in each such solicitation and the city environmental purchasing standard that is applicable to any such product specified in such solicitation;
(3) a list and the aggregate dollar value of contracts exempted pursuant to subdivision a of section 6-303 of this chapter according to each type of exemption;
(4) a list and the aggregate dollar value of contracts for which a waiver has been issued pursuant to subdivision b of section 6-303 of this chapter according to each type of waiver with an explanation of the director’s basis for granting each such waiver;
(5) any material changes to the city’s environmental purchasing standards since the last publication of such report, including any new, updated or revised rules established or determinations made by the director;
(6) an identification of any product for which new or additional environmental purchasing standards are necessary;
(7) beginning January 1, 2008, an explanation of any determination pursuant to subdivision b of section 6-308 of this chapter not to require compliance with the CPG;
(8) a list of products considered in implementing subdivision c of section 6-308 of this chapter, including an indication of whether any such products were determined to be of inadequate quality, unavailable within a reasonable period of time, at a price that does not exceed a cost premium of seven percent (7%) above the cost of a comparable product that is not a recycled product or at a price that does not exceed a cost premium of five percent (5%) above the cost that would apply pursuant to subdivision a of section 6-308;
(9) beginning January 1, 2008, an explanation of any determination pursuant to subdivision c or d of section 6-306 of this chapter not to require compliance with the federal energy management program;
(10) a description of the good faith efforts required pursuant to subdivision b of section 6-302 of this chapter;
(11) a description of the director’s efforts pursuant to subdivision d of this section;
(12) until October 12, 2012, a report on the implementation of section 6-307, section 6-309 and subdivision b of section 6-310 of this chapter; and
(13) for the annual report required in 2008, and every fourth year thereafter, for each product subject to the provisions of this chapter, the total dollar value of such products purchased or leased by any agency and the portion of such purchases that comply with the city’s environmental purchasing standards; and, to the extent practicable, the total value of such products purchased or leased by any contractor pursuant to any contract with any agency, including any such contract for construction work in any building, that is subject to this chapter and the portion of such purchases that comply with the city’s environmental purchasing standards.
§ 6-305 Agency implementation.
Each agency shall designate an environmental purchasing officer who shall:
(1) coordinate with the director to ensure agency compliance with the city’s environmental purchasing standards; and
(2) submit an annual report as required by the director detailing such compliance.
The department of education shall submit an annual report to the speaker of the council and the mayor by October 1 of each year detailing the department’s procurement activities that are consistent with the city’s environmental purchasing standards.
Subchapter 3: Energy Efficiency
§ 6-306 Energy efficiency standards.
Any energy-using product purchased or leased by any agency for which the United States environmental protection agency and the United States department of energy have developed energy efficiency standards for compliance with the Energy Star program shall be ENERGY STAR labeled.
Any faucet, showerhead, toilet, urinal, fluorescent tube lamp, fluorescent ballast, industrial HID luminaire, downlight luminaire, fluorescent luminaire or compact fluorescent lamp that is purchased or leased by any agency for which the federal energy management program of the United States department of energy has issued product energy efficiency recommendations shall achieve no less energy efficiency or flow rate than the minimum recommended in such recommendations.
Unless the director makes a determination otherwise for any particular contract, any air-cooled chiller or water-cooled chiller that is purchased or leased by any agency for which the federal energy management program of the United States department of energy has issued product energy efficiency recommendations shall achieve no less energy efficiency or flow rate than the minimum recommended in such recommendations.
Beginning January 1, 2008, the director shall make a determination whether or not any product not specified in subdivisions a or b of this section that is purchased or leased by any agency for which the federal energy management program of the United States department of energy has issued product energy efficiency recommendations shall achieve no less energy efficiency or flow rate than the minimum recommended in such recommendations. The director shall review any such determination not to require compliance with the federal energy management program for any product at least once every two years.
Beginning January 1, 2008, unless prior to such date the director determines that products that would comply with this subdivision are not available in sufficient quantities and upon reasonable terms, the minimum energy efficiency of the power supply of any desktop computer or desktop-derived server purchased or leased by any agency containing an internally mounted power supply shall be 80% at 20%, 50% and 100% of rated power supply output, when tested according to a proportional allocation method of loading the power supply. The director shall investigate the feasibility of purchasing such products prior to such date. In the event that this subdivision does not apply after January 1, 2008 as a result of any determination of the director, the director shall annually reconsider any such determination and, where applicable as a result of any such reconsideration, the requirement in this subdivision shall take effect as soon as practicable thereafter.
No lamp purchased or leased by any agency shall be an incandescent lamp if a more energy efficient lamp is available that provides sufficient lumens and is of an appropriate size for the intended application.
§ 6-307 Office equipment energy use reduction.
Notwithstanding section 6-302 of this chapter, this section shall apply to any computer, printer, facsimile machine or photocopy machine owned or leased by any agency.
The power management software options of any computer, printer, facsimile machine or photocopy machine that contains such software shall be calibrated to achieve the highest energy savings practicable.
For any computer that contains power management software, the computer monitor and central processing unit shall be set to enter into a low power mode after the shortest practicable period of inactivity. Any screensaver or other computer program that directly interferes with the proper functioning of the low power mode of any computer monitor or central processing unit, shall be disabled.
Any agency need not comply with the provisions of this section if compliance would interfere with any mission of such agency or cause instability in any computer system.
Subchapter 4: Recycled Materials
§ 6-308 Minimum recycled material content.
Any reprographic paper, tablet paper, envelope paper, file folder, commercial/industrial sanitary tissue, rock wool or fiberglass building insulation, polyester carpet, flowable fill, steel shower or restroom divider/partition, traffic cone, plastic fencing, plastic park bench, hydraulic mulch, garden or soaker hose, plastic trash bag, office recycling container, office waste receptacle, mat, signage or pallet, as such terms are utilized in the CPG: (i) purchased or leased by any agency; (ii) that can be procured at a reasonably competitive price; and (iii) that is listed in the CPG, for which the United States environmental protection agency has issued a recovered materials advisory notice, shall contain no less recovered material and postconsumer material than the minimum amount recommended in the most recent such notice, or, with respect to any paper or paper product, may, at the discretion of the director, contain no less than fifty percent agricultural wastes.
Beginning January 1, 2008, the director shall make a determination whether or not any product: (i) purchased or leased by any agency; (ii) that can be procured at a reasonably competitive price; (iii) in any category listed in the CPG, but not specified in subdivision a of this section, for which the United States environmental protection agency has issued a recovered materials advisory notice, shall contain no less recovered material and postconsumer material than the minimum amount recommended in the most recent such notice. The director shall review any such determination not to require compliance with the CPG for any product at least once every two years.
In addition to the requirements of subdivision a of this section, any reprographic paper product purchased or leased by any agency shall contain the highest recovered material content available, to the extent any such product: (i) can be procured at a price that does not exceed a cost premium of seven percent (7%) above the cost of a comparable product that is not a recycled product; (ii) can be procured at a price that does not exceed a cost premium of five percent (5%) above the cost that would apply pursuant to subdivision a of this section; (iii) is of adequate quality for the intended use; and (iv) is available within a reasonable period of time, as determined by the director.
§ 6-309 Printing on recycled paper.
Any document or graphic material prepared or printed for any agency pursuant to any contract with such agency, which can be procured at a reasonably competitive price and is of adequate quality for the intended use, shall be printed on paper with no less recovered material and postconsumer material, or agricultural wastes, than the minimum amount required pursuant to subdivision a of section 6-308 of this chapter and, where practicable, shall be printed double-sided.
Any solicitation of any agency shall request that any response to such solicitation be printed double-sided and on paper with no less recovered material and postconsumer material than the minimum required pursuant to subdivision a of section 6-308 of this chapter, and shall require that such response indicate whether such requests have been met; provided, however, that nothing in this subdivision shall be construed as requiring a finding of non-responsiveness.
Any pre-printed paper or publication, including any letterhead or report, purchased or leased by any agency that has been printed on paper that contains the minimum percentage of postconsumer recycled fiber required pursuant to subdivision a of section 6-308 of this chapter, shall include a statement and/or symbol indicating the minimum percentage of postconsumer recycled material contained in such paper, consistent with section 104-a of the general municipal law.
§ 6-310 Paper waste reduction.
Any printer purchased or leased by any agency that can print at a rate of twenty pages or faster per minute or that is considered a local area network printer shall have the capacity to print double-sided. Any copier purchased or leased by any agency that can print at a rate of twenty pages or faster per minute shall have the capacity to print double-sided and shall perform equally well with paper containing postconsumer material as with paper containing no postconsumer material.
Notwithstanding section 6-302 of this chapter, this subdivision shall apply to any printer or copier purchased or leased by any agency after January 1, 2007 and, to the extent practicable, to any printer or copier purchased or leased by any agency before such date. The default parameters of any printer with the capacity to print double-sided, and any computer that utilizes such printer, shall be set to duplex mode, such that the printer prints double-sided pages. The default parameters of any copier with the capacity to print double-sided for which the default parameters can be adjusted, shall be set to duplex mode, such that the copier places images on both sides of a copy sheet, performing one-sided to two-sided copying, and two-sided to two-sided copying.
Subchapter 5: Hazardous Substances
§ 6-311 Reuse or recycling of electronic devices.
By January 1, 2008, unless otherwise directed by a subsequent local law, the city shall develop a plan for the reuse or recycling of any covered electronic device purchased or leased by any agency.
§ 6-312 Hazardous content of electronic devices.
No new covered electronic device purchased or leased by any agency shall contain lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls or polybrominated diphenyl ethers, except as provided by rules promulgated by the director.
No new covered electronic device purchased or leased by any agency shall contain any hazardous substance in any amount exceeding that proscribed by the director through rulemaking. In developing such rules, the director shall consider European Union directive 2002/95/EC and any subsequent material directive issued by the European Parliament and the Council of the European Union.
§ 6-313 Volatile organic compounds and other airborne hazards.
No carpet, carpet cushion or carpet adhesive purchased or leased by any agency shall contain the following volatile organic compounds in any concentration exceeding that specified by the director through rulemaking:
(i) for carpets, 4-phenylcyclohexene, formaldehyde or styrene;
(ii) for carpet cushions, butylated hydroxytoluene, formaldehyde or 4-phenylcyclohexene; and
(iii) for carpet adhesives, formaldehyde or 2-ethyl-1-hexanol.
(2) In developing such rules, the director shall consider any widely accepted industry recommendations for reduced volatile organic compounds in carpeting products.
No architectural coating purchased or leased by any agency shall contain any volatile organic compound in any concentration exceeding that specified by the director through rulemaking. In developing such rules, the director shall consider rule 1113 of the south coast air quality management district.
No construction or furnishing materials purchased or leased by any agency, other than any product covered by subdivisions a or b of this section, shall contain any chemical compound in any concentration exceeding that specified by the director through rulemaking. In developing such rules, the director shall consider section 01350 of the reference specifications for energy and resource efficiency of the California energy commission.
§ 6-314 Mercury-added lamps.
Any mercury-added lamp purchased or leased by any agency shall achieve no less energy efficiency than the minimum required by the director through rulemaking and, among lamps meeting such energy efficiency requirements, shall contain the lowest amount of mercury per rated hour.
§ 6-315 Miscellaneous.
By January 1, 2008, the director shall promulgate rules to reduce the city’s purchase or lease of materials whose combustion may lead to the formation of dioxin or dioxin-like compounds.
The director shall investigate the environmental and health effects of composite wood or agrifiber products that contain added urea-formaldehyde resins and, by January 1, 2008, where practicable, shall promulgate rules to reduce the city’s purchase or lease of such products.
Subchapter 6: Cleaning Products
§ 6-316 Green cleaning products.
Beginning June 1, 2009, the city shall purchase and use green cleaning products to the extent and in the manner that such use is determined to be feasible through the pilot program established pursuant to the local law that added subchapter 6 of this chapter or through any other testing and evaluation conducted by the director. Such green cleaning products shall meet the health and environmental criteria for the relevant product category as established by the director under the pilot program or any such criteria as updated or revised by the director.
No later than June 1, 2009, the director shall publish a list of green cleaning products that may be purchased by the city to comply with this section. At least once annually, such list shall be reviewed and revised, if necessary.
Subchapter 7: Packaging Reduction
§ 6-317 Packaging reduction guidelines for city agencies.
The director of citywide environmental purchasing, after consultation with the mayor’s office of long term planning and sustainability, shall establish packaging reduction guidelines for contracts entered into by city agencies for the purchase of goods.
Such guidelines shall include but not be limited to the following agency requests:
(i) whenever practicable, elimination of packaging or use of the minimum amount necessary for product protection;
(ii) whenever practicable, use of packaging that is recyclable or reusable; and
(iii) contractor reuse of pallets and packaging materials whenever practicable.
The director of citywide environmental purchasing shall make such guidelines available to all city agencies and publish such guidelines on the city’s website.
All city agencies shall reference the guidelines established pursuant to this section in conjunction with any request for bids issued by such agency for the purchase of goods.
The director of citywide environmental purchasing, after consultation with the office of long-term planning and sustainability, shall establish a program through the city website, and any other relevant means of media or communication, to identify and recognize city agency contractors that consistently further the goals of the packaging reduction guidelines established pursuant to this section.