S T A T E O F N E W Y O R K
________________________________________________________________________
6836
2013-2014 Regular Sessions
I N A S S E M B L Y
April 19, 2013
___________
Introduced by M. of A. BOYLAND -- read once and referred to the Commit-
tee on Governmental Operations
AN ACT to amend the executive law, in relation to requiring that certain
state contracts provide for the employment of homeless persons
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The executive law is amended by adding a new article 15-D
2 to read as follows:
3 ARTICLE 15-D
4 PARTICIPATION BY HOMELESS PERSONS WITH
5 RESPECT TO STATE CONTRACTS
6 SECTION 328-B. DEFINITIONS.
7 328-C. EQUAL EMPLOYMENT OPPORTUNITIES FOR HOMELESS PERSONS.
8 328-D. RESPONSIBILITIES OF CONTRACTING AGENCIES.
9 328-E. ENFORCEMENT.
10 S 328-B. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS
11 SHALL HAVE THE FOLLOWING MEANINGS:
12 1. "CONTRACTING AGENCY" SHALL MEAN A STATE AGENCY WHICH IS A PARTY OR
13 A PROPOSED PARTY TO A STATE CONTRACT OR, IN THE CASE OF A STATE CONTRACT
14 DESCRIBED IN PARAGRAPH (C) OF SUBDIVISION SEVEN OF THIS SECTION, SHALL
15 MEAN THE NEW YORK STATE HOUSING FINANCE AGENCY, HOUSING TRUST FUND
16 CORPORATION OR AFFORDABLE HOUSING CORPORATION, WHICHEVER HAS MADE OR
17 PROPOSES TO MAKE THE GRANT OR LOAN FOR THE STATE ASSISTED HOUSING
18 PROJECT.
19 2. "CONTRACTOR" SHALL MEAN AN INDIVIDUAL, A BUSINESS ENTERPRISE,
20 INCLUDING A SOLE PROPRIETORSHIP, A PARTNERSHIP, A CORPORATION, A
21 NOT-FOR-PROFIT CORPORATION, OR ANY OTHER PARTY TO A STATE CONTRACT, OR A
22 BIDDER IN CONJUNCTION WITH THE AWARD OF A STATE CONTRACT OR A PROPOSED
23 PARTY TO A STATE CONTRACT.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10373-01-3
A. 6836 2
1 3. "DIRECTOR" SHALL MEAN THE DIRECTOR OF THE DIVISION OF MINORITY AND
2 WOMEN'S BUSINESS DEVELOPMENT ESTABLISHED BY ARTICLE FOUR-A OF THE
3 ECONOMIC DEVELOPMENT LAW.
4 4. "HOMELESS PERSON" SHALL HAVE THE MEANING PRESCRIBED IN SUBDIVISION
5 TWO OF SECTION FORTY-TWO OF THE SOCIAL SERVICES LAW.
6 5. "DIVISION" SHALL MEAN THE DIVISION OF MINORITY AND WOMEN'S BUSINESS
7 DEVELOPMENT CREATED BY ARTICLE FOUR-A OF THE ECONOMIC DEVELOPMENT LAW.
8 6. "STATE AGENCY" SHALL MEAN (A) (I) ANY STATE DEPARTMENT, OR (II) ANY
9 DIVISION, BOARD, COMMISSION OR BUREAU OF ANY STATE DEPARTMENT, OR (III)
10 THE STATE UNIVERSITY OF NEW YORK AND THE CITY UNIVERSITY OF NEW YORK,
11 INCLUDING ALL THEIR CONSTITUENT UNITS EXCEPT COMMUNITY COLLEGES AND THE
12 INDEPENDENT INSTITUTIONS OPERATING STATUTORY OR CONTRACT COLLEGES ON
13 BEHALF OF THE STATE, OR (IV) A BOARD, A MAJORITY OF WHOSE MEMBERS ARE
14 APPOINTED BY THE GOVERNOR OR WHO SERVE BY VIRTUE OF BEING STATE OFFICERS
15 OR EMPLOYEES AS DEFINED IN SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH
16 (I) OF SUBDIVISION ONE OF SECTION SEVENTY-THREE OF THE PUBLIC OFFICERS
17 LAW:
18 (B) THE FOLLOWING:
19 ALBANY PORT DISTRICT COMMISSION;
20 BATTERY PARK CITY AUTHORITY;
21 (NELSON A. ROCKEFELLER) EMPIRE STATE PLAZA PERFORMING ARTS
22 CENTER CORPORATION;
23 INDUSTRIAL EXHIBIT AUTHORITY;
24 LONG ISLAND POWER AUTHORITY;
25 LONG ISLAND RAIL ROAD;
26 MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY;
27 METRO-NORTH COMMUTER RAILROAD;
28 METROPOLITAN SUBURBAN BUS AUTHORITY;
29 METROPOLITAN TRANSPORTATION AUTHORITY;
30 NATURAL HERITAGE TRUST;
31 NEW YORK CITY TRANSIT AUTHORITY;
32 NEW YORK CONVENTION CENTER OPERATING CORPORATION;
33 NEW YORK STATE BRIDGE AUTHORITY;
34 NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY;
35 NEW YORK STATE THRUWAY AUTHORITY.
36 7. "STATE CONTRACT" SHALL MEAN: (A) A WRITTEN AGREEMENT OR PURCHASE
37 ORDER INSTRUMENT, PROVIDING FOR A TOTAL EXPENDITURE IN EXCESS OF ONE
38 HUNDRED THOUSAND DOLLARS, WHEREBY A CONTRACTING AGENCY IS COMMITTED TO
39 EXPEND OR DOES EXPEND FUNDS IN RETURN FOR LABOR, SERVICES, SUPPLIES,
40 EQUIPMENT, MATERIALS OR ANY COMBINATION OF THE FOREGOING, TO BE
41 PERFORMED FOR, OR RENDERED OR FURNISHED TO THE CONTRACTING AGENCY; (B) A
42 WRITTEN AGREEMENT IN EXCESS OF ONE HUNDRED THOUSAND DOLLARS WHEREBY A
43 CONTRACTING AGENCY IS COMMITTED TO EXPEND OR DOES EXPEND FUNDS FOR THE
44 ACQUISITION, CONSTRUCTION, DEMOLITION, REPLACEMENT, MAJOR REPAIR OR
45 RENOVATION OF REAL PROPERTY AND IMPROVEMENTS THEREON; AND (C) A WRITTEN
46 AGREEMENT IN EXCESS OF ONE HUNDRED THOUSAND DOLLARS WHEREBY THE OWNER OF
47 A STATE ASSISTED HOUSING PROJECT IS COMMITTED TO EXPEND OR DOES EXPEND
48 FUNDS FOR THE ACQUISITION, CONSTRUCTION, DEMOLITION, REPLACEMENT, MAJOR
49 REPAIR OR RENOVATION OF REAL PROPERTY AND IMPROVEMENTS THEREON FOR SUCH
50 PROJECT. FOR THE PURPOSES OF THIS ARTICLE THE TERM "SERVICES" SHALL NOT
51 INCLUDE BANKING RELATIONSHIPS, THE ISSUANCE OF INSURANCE POLICIES OR
52 CONTRACTS, OR CONTRACTS WITH A CONTRACTING AGENCY FOR THE SALE OF BONDS,
53 NOTES OR OTHER SECURITIES.
54 8. "SUBCONTRACT" SHALL MEAN AN AGREEMENT PROVIDING FOR A TOTAL EXPEND-
55 ITURE IN EXCESS OF TWENTY-FIVE THOUSAND DOLLARS FOR THE CONSTRUCTION,
56 DEMOLITION, REPLACEMENT, MAJOR REPAIR, RENOVATION, PLANNING OR DESIGN OF
A. 6836 3
1 REAL PROPERTY AND IMPROVEMENTS THEREON BETWEEN A CONTRACTOR AND ANY
2 INDIVIDUAL OR BUSINESS ENTERPRISE, INCLUDING A SOLE PROPRIETORSHIP,
3 PARTNERSHIP, CORPORATION, OR NOT-FOR-PROFIT CORPORATION, IN WHICH A
4 PORTION OF A CONTRACTOR'S OBLIGATION UNDER A STATE CONTRACT IS UNDERTAK-
5 EN OR ASSUMED, BUT SHALL NOT INCLUDE ANY CONSTRUCTION, DEMOLITION,
6 REPLACEMENT, MAJOR REPAIR, RENOVATION, PLANNING OR DESIGN OF REAL PROP-
7 ERTY OR IMPROVEMENTS THEREON FOR THE BENEFICIAL USE OF THE CONTRACTOR.
8 S 328-C. EQUAL EMPLOYMENT OPPORTUNITIES FOR HOMELESS PERSONS. 1. ALL
9 STATE CONTRACTS AND ALL DOCUMENTS SOLICITING BIDS OR PROPOSALS FOR STATE
10 CONTRACTS FOR PROJECTS COSTING ONE HUNDRED THOUSAND DOLLARS OR MORE
11 SHALL PROVIDE FOR THE EMPLOYMENT OF AT LEAST TEN HOMELESS PERSONS. THE
12 CONTRACTOR SHALL EMPLOY ONLY THOSE HOMELESS PERSONS WHO ARE QUALIFIED TO
13 PERFORM THE WORK REQUIRED PURSUANT TO THE CONTRACT IN A SAFE AND COMPE-
14 TENT MANNER.
15 2. THE CONTRACTOR WILL INCLUDE THE PROVISIONS OF SUBDIVISION ONE OF
16 THIS SECTION IN EVERY SUBCONTRACT, EXCEPT AS PROVIDED IN SUBDIVISION SIX
17 OF THIS SECTION, IN SUCH A MANNER THAT THE PROVISIONS WILL BE BINDING
18 UPON EACH SUBCONTRACTOR AS TO WORK IN CONNECTION WITH THE STATE
19 CONTRACT.
20 3. THE PROVISIONS OF THIS SECTION SHALL NOT BE BINDING UPON CONTRAC-
21 TORS OR SUBCONTRACTORS IN THE PERFORMANCE OF WORK OR THE PROVISION OF
22 SERVICES OR ANY OTHER ACTIVITY THAT ARE UNRELATED, SEPARATE OR DISTINCT
23 FROM THE STATE CONTRACT AS EXPRESSED BY ITS TERMS.
24 4. IN THE IMPLEMENTATION OF THIS SECTION, THE CONTRACTING AGENCY SHALL
25 CONSIDER COMPLIANCE BY A CONTRACTOR OR SUBCONTRACTOR WITH THE REQUIRE-
26 MENTS OF ANY FEDERAL LAW CONCERNING EQUAL EMPLOYMENT OPPORTUNITY WHICH
27 EFFECTUATES THE PURPOSE OF THIS SECTION. THE CONTRACTING AGENCY SHALL
28 DETERMINE WHETHER THE IMPOSITION OF THE REQUIREMENTS OF THE PROVISIONS
29 HEREOF DUPLICATE OR CONFLICT WITH ANY SUCH LAW AND IF SUCH DUPLICATION
30 OR CONFLICT EXISTS, THE CONTRACTING AGENCY SHALL WAIVE THE APPLICABILITY
31 OF THIS SECTION TO THE EXTENT OF SUCH DUPLICATION OR CONFLICT.
32 5. THE DIRECTOR SHALL PROMULGATE RULES AND REGULATIONS TO ENSURE THAT
33 CONTRACTORS AND SUBCONTRACTORS UNDERTAKE PROGRAMS OF EQUAL EMPLOYMENT
34 OPPORTUNITY AS REQUIRED BY THIS SECTION. SUCH RULES AND REGULATIONS AS
35 THEY PERTAIN TO ANY PARTICULAR AGENCY SHALL BE DEVELOPED AFTER CONSULTA-
36 TION WITH CONTRACTING AGENCIES. THE CONTRACTING AGENCY SHALL BE RESPON-
37 SIBLE FOR MONITORING COMPLIANCE WITH THIS SECTION.
38 6. THE REQUIREMENTS OF THIS SECTION SHALL NOT APPLY TO ANY EMPLOYMENT
39 OUTSIDE THIS STATE OR APPLICATION FOR EMPLOYMENT OUTSIDE THIS STATE OR
40 SOLICITATIONS OR ADVERTISEMENTS THEREFOR, OR ANY EXISTING PROGRAMS OF
41 AFFIRMATIVE ACTION REGARDING EMPLOYMENT OUTSIDE THIS STATE AND THE
42 EFFECT OF CONTRACT PROVISIONS REQUIRED BY SUBDIVISION ONE OF THIS
43 SECTION SHALL BE SO LIMITED.
44 S 328-D. RESPONSIBILITIES OF CONTRACTING AGENCIES. 1. EACH CONTRACTING
45 AGENCY SHALL BE RESPONSIBLE FOR MONITORING STATE CONTRACTS UNDER ITS
46 JURISDICTION, AND RECOMMENDING MATTERS TO THE DIVISION RESPECTING
47 NON-COMPLIANCE WITH THE PROVISIONS OF THIS ARTICLE SO THAT THE OFFICE
48 MAY TAKE SUCH ACTION AS IS APPROPRIATE TO INSURE COMPLIANCE WITH THE
49 PROVISIONS OF THIS ARTICLE, THE RULES AND REGULATIONS OF THE DIRECTOR
50 ISSUED HEREUNDER AND THE CONTRACTUAL PROVISIONS REQUIRED PURSUANT TO
51 THIS ARTICLE. ALL CONTRACTING AGENCIES SHALL COMPLY WITH THE RULES AND
52 REGULATIONS OF THE DIVISION AND ARE DIRECTED TO COOPERATE WITH THE DIVI-
53 SION AND TO FURNISH TO THE DIVISION SUCH INFORMATION AND ASSISTANCE AS
54 MAY BE REQUIRED IN THE PERFORMANCE OF ITS FUNCTIONS UNDER THIS ARTICLE.
55 2. EACH CONTRACTING AGENCY SHALL REPORT TO THE DIRECTOR WITH RESPECT
56 TO ACTIVITIES UNDERTAKEN TO PROMOTE EMPLOYMENT OF HOMELESS PERSONS WITH
A. 6836 4
1 RESPECT TO STATE CONTRACTS AND SUBCONTRACTS. SUCH REPORT SHALL BE
2 SUBMITTED PERIODICALLY AS REQUIRED BY THE DIRECTOR.
3 S 328-E. ENFORCEMENT. UPON RECEIPT BY THE DIRECTOR OF A COMPLAINT BY
4 A CONTRACTING AGENCY THAT A CONTRACTOR HAS VIOLATED THE PROVISIONS OF A
5 STATE CONTRACT WHICH HAVE BEEN INCLUDED TO COMPLY WITH THE PROVISIONS OF
6 THIS ARTICLE, THE DIRECTOR SHALL ATTEMPT TO RESOLVE THE MATTER GIVING
7 RISE TO SUCH COMPLAINT. IF EFFORTS TO RESOLVE SUCH MATTER TO THE SATIS-
8 FACTION OF ALL PARTIES ARE UNSUCCESSFUL, THE DIRECTOR SHALL REFER THE
9 MATTER, WITHIN THIRTY DAYS OF THE RECEIPT OF THE COMPLAINT, TO THE AMER-
10 ICAN ARBITRATION ASSOCIATION FOR PROCEEDING THEREON. UPON CONCLUSION OF
11 THE ARBITRATION PROCEEDINGS, THE ARBITRATOR SHALL SUBMIT TO THE DIRECTOR
12 HIS OR HER AWARD REGARDING THE ALLEGED VIOLATION OF THE CONTRACT AND
13 RECOMMENDATIONS REGARDING THE IMPOSITION OF SANCTIONS, FINES OR PENAL-
14 TIES. THE DIRECTOR SHALL EITHER: (1) ADOPT THE RECOMMENDATION OF THE
15 ARBITRATOR; OR (2) DETERMINE THAT NO SANCTIONS, FINES OR PENALTIES
16 SHOULD BE IMPOSED; OR (3) MODIFY THE RECOMMENDATION OF THE ARBITRATOR,
17 PROVIDED THAT SUCH MODIFICATION SHALL NOT EXPAND UPON ANY SANCTION
18 RECOMMENDED OR IMPOSE ANY NEW SANCTION, OR INCREASE THE AMOUNT OF ANY
19 RECOMMENDED FINE OR PENALTY. THE DIRECTOR, WITHIN TEN DAYS OF RECEIPT OF
20 THE ARBITRATOR'S AWARD AND RECOMMENDATIONS, SHALL FILE A DETERMINATION
21 OF SUCH MATTER AND SHALL CAUSE A COPY OF SUCH DETERMINATION ALONG WITH A
22 COPY OF THIS ARTICLE TO BE SERVED UPON THE RESPONDENT BY PERSONAL
23 SERVICE OR BY CERTIFIED MAIL RETURN RECEIPT REQUESTED. THE AWARD OF THE
24 ARBITRATOR SHALL BE FINAL AND MAY ONLY BE VACATED OR MODIFIED AS
25 PROVIDED IN ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES
26 UPON AN APPLICATION MADE WITHIN THE TIME PROVIDED BY SECTION
27 SEVENTY-FIVE HUNDRED ELEVEN OF THE CIVIL PRACTICE LAW AND RULES. THE
28 DETERMINATION OF THE DIRECTOR AS TO THE IMPOSITION OF ANY FINES, SANC-
29 TIONS OR PENALTIES SHALL BE REVIEWABLE PURSUANT TO ARTICLE SEVENTY-EIGHT
30 OF THE CIVIL PRACTICE LAW AND RULES.
31 S 2. Paragraphs (g), (h) and (i) of subdivision 3 of section 311 of
32 the executive law are relettered paragraphs (h), (i) and (j) and a new
33 paragraph (g) is added to read as follows:
34 (G) TO PROMULGATE RULES AND REGULATIONS TO ENSURE THAT THE PROVISIONS
35 OF ARTICLE FIFTEEN-D OF THIS CHAPTER RELATED TO EMPLOYMENT OF HOMELESS
36 PERSONS ARE MET, AND TO CARRY OUT SUCH OTHER POWERS AND DUTIES AS ARE
37 NECESSARY TO ENSURE AND ENFORCE THE PROVISIONS OF SUCH ARTICLE;
38 S 3. This act shall take effect on the one hundred twentieth day after
39 it shall have become a law. Any rules and regulations necessary for the
40 timely implementation of this act on its effective date shall be promul-
41 gated on or before such date, and provided further that the amendments
42 to subdivision 3 of section 311 of the executive law made by section two
43 of this act shall not affect the expiration of such section as provided
44 by chapter 261 of the laws of 1988 and shall expire therewith.