or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise CITY or will notify CITY within the 30-day period that additional time is necessary.
iv. In the event CONSULTANT, the laborers or mechanics to be employed in the classification, or their representatives, and CITY do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits where appropriate), CITY shall refer the questions, including the views of all interested parties and the recommendation of CITY, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise CITY or will notify CITY within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB control number 1215-0140.)
v. The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (ii) or (iii) of this paragraph, shall be paid to all workers performing work in the classification under this Agreement from the first day on which work is performed in the classification.
vi. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, CONSULTANT shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. vii. If CONSULTANT does not make payments to a trustee or other third person, CONSULTANT may consider, as part of the wages of any laborer or mechanic, the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided that the Secretary of Labor has found, upon the written request of CONSULTANT, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require CONSULTANT to set aside in a separate account assets for the meeting of obligations under the plan or program.
B. Withholding. CITY shall, upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from CONSULTANT under this Agreement or any other federal contract with the same CONSULTANT, or any other federallyassisted contract subject to the Davis-Bacon Act prevailing wage requirements, which is held by the same CONSULTANT, that amount of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by CONSULTANT or any subcontractor the full amount of
wages required by the Agreement. In the event of failure to pay all or part of the wages required by contract to any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the Project, CITY may, after written notice, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
C. Payrolls and Basic Records.
i. Payrolls and basic records relating thereto shall be maintained by CONSULTANT during the course of the Work and preserved for a period of three (3) years thereafter for all laborers and mechanics working at the site of the Project. Such records shall contain the name, address, and Social Security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid.
Whenever the Secretary of Labor has found under paragraph A.iv of this section that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, CONSULTANT shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. If CONSULTANT employs apprentices or trainees under approved programs, CONSULTANT shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. ii. CONSULTANT shall submit weekly, for each week in which any contract work is performed, a copy of all payrolls to CITY. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under paragraph C.i above.
This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office, Washington, D.C. 20402. CONSULTANT is responsible for the submission of copies of payrolls by all subcontractors.
iii. Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by CONSULTANT or subcontractor or his or
her agent who pays or supervises the payment of the persons employed under the Agreement and shall certify the following:
(a) That the payroll for the payroll period contains the information required to be maintained under paragraph C.i above and that such information is correct and complete; (b) That each laborer and mechanic (including each helper, apprentice and trainee) employed under the Agreement
during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 C.F.R. Part 3;
(c) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash
equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the Contract.
iv. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph C.ii.(b) of this section.
v. The falsification of any of the above certifications may subject CONSULTANT or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code.
vi. CONSULTANT or subcontractor shall make the records required under paragraph C.i of this section available for inspection, copying or transcription by authorized representatives of CITY, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If CONSULTANT or subcontractor fails to submit the required records or to make them available, the Department of Labor may, after written notice to CONSULTANT or CITY, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment of CONSULTANT or subcontractor pursuant to 29 C.F.R. 5.12.
D. Apprentices and Trainees.
i. Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they perform when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship City recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of
Apprenticeship and Training or a State Apprenticeship City (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the Project site in any craft classification shall not be greater than the ratio permitted to CONSULTANT as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination of the work actually performed. Where a consultant is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the consultant’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship City recognized by the Bureau, withdraws approval of an apprenticeship program, CONSULTANT will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
ii. Trainees. Except as provided in 29 C.F.R. 5.16, trainees will not be permitted to work at less than the predetermined rate for the work
performed unless they are employed pursuant to, and individually registered in, a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the Project site shall not be greater than permitted under the plan approved by the Employment and Training
Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the Project site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, CONSULTANT will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
iii. Equal Employment Opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 C.F.R. Part 30.
E. Compliance with Copeland Act Requirements. CONSULTANT shall comply with the requirements of 29 C.F.R. Part 3, which are incorporated by reference into this Agreement.
F. Subcontracts. CONSULTANT and each subcontractor shall insert in any subcontracts the clauses contained in paragraphs A. through J. of this Agreement and also a clause requiring the subcontractor to include these clauses in any lower tier subcontracts. CONSULTANT shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 C.F.R. 5.5.
G. Agreement Termination; Debarment. A breach of the Agreement clauses in paragraphs A. through K. of this Section 2.14 are grounds for termination of this Agreement, and for the debarment of CONSULTANT or subcontractor as provided in 29 C.F.R. 5.12.
H. Compliance with Davis-Bacon and Related Act Requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 C.F.R. Parts 1, 3, and 5 are herein incorporated by reference in this Contract.
I. Disputes Concerning Labor Standards. Disputes arising out of the labor standards provisions of this Agreement shall not be subject to the general disputes provision of this Agreement. Such disputes as relate to labor standards shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 C.F.R. Parts 5, 6 and 7. Disputes within the meaning of this clause include disputes between CONSULTANT (or any of its subcontractors) and CITY, the U.S.
Department of Labor, or the employees or their representatives.
J. Certification of Eligibility.
i. By entering into this Agreement, CONSULTANT certifies that neither it (nor he or she) nor any person or firm who has an interest in CONSULTANT’s firm is a person or firm ineligible to be awarded government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 C.F.R. 5.12(a)(1).
ii. No part of this Agreement shall be subcontracted to any person or firm ineligible for award of a government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 C.F.R. 5.12(a)(1). iii. The penalty for making false statements or certifications in the making of this Agreement is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
K. State Prevailing Wage Laws. The Services are also subject to state prevailing wage requirements under the State Prevailing Wage Laws. If the predetermined state minimum wage for a certain type or classification of labor, as determined by the Director of the California Department of Industrial Relations, is different as between the wage determined in accordance with the Davis-Bacon Act and the wage determined in accordance with the State Prevailing Wage Laws, the higher wage rate determination shall apply.
6.5 DOCUMENTS & DATA; LICENSING OF INTELLECTUAL PROPERTY: All Documents and Data shall be and remain the property of CITY without restriction or limitation upon their use or dissemination by CITY. For purposes of this Agreement, the term “Documents and Data” means and includes all reports, analyses, correspondence, plans, drawings, designs, renderings, specifications,
notes, summaries, strategies, charts, schedules, spreadsheets, calculations, lists, data compilations, documents or other materials developed and/or assembled by or on behalf of CONSULTANT in the performance of this Agreement and fixed in any tangible medium of expression, including but not limited to Documents and Data stored digitally, magnetically and/or electronically.
This Agreement creates, at no cost to CITY, a perpetual license for CITY to copy, use, reuse, disseminate and/or retain any and all copyrights, designs, and other intellectual property embodied in all Documents and Data. CONSULTANT shall require all subcontractors and subconsultants working on behalf of CONSULTANT in the performance of this Agreement to agree in writing that CITY shall be granted the same right to copy, use, reuse, disseminate and retain Documents and Data prepared or assembled by any subcontractor or subconsultant as applies to Documents and Data prepared by CONSULTANT in the performance of this Agreement.
6.6 CONFIDENTIALITY: All data, documents, discussion, or other information developed or received by CONSULTANT or provided for performance of this Agreement are deemed confidential and shall not be disclosed by CONSULTANT without prior written consent by CITY. CITY shall grant such consent if disclosure is legally required. Upon request, all CITY data shall be returned to CITY upon the termination or expiration of this Agreement.
CONSULTANT shall not use CITY’s name or insignia, photographs, or any publicity pertaining to the Work in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of CITY. Notwithstanding the foregoing, CONSULTANT shall not be restricted from disclosing confidential information that is reasonably necessary for CONSULTANT to disclose to CONSULTANT's employees, subconsultants and the general contractor and subcontractors, if appropriate, or information in whatever form that is in the public domain. Nor shall CONSULTANT be restricted from giving notices required by law or complying with an order to provide information or data when such an order is issued by a court, administrative agency or other legitimate authority, or if disclosure is reasonably necessary for CONSULTANT to defend itself from any legal action or claim – if such an event should occur, CONSULTANT will inform CITY in writing prior to any disclosure.
6.7 FALSE CLAIMS ACT: CONSULTANT warrants and represents that neither CONSULTANT nor any person who is an officer of, in a managing position with, or has an ownership interest in CONSULTANT has been determined by a court or tribunal of competent jurisdiction to have violated the False Claims Act, 31 U.S.C., section 3789 et seq. and the California False Claims Act, Government Code section 12650 et seq.
6.8 NON-DISCRIMINATION: In the performance of this Agreement, CONSULTANT shall not discriminate against any employee, subcontractor, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital
status, sexual orientation, national origin, ancestry, age, physical or mental disability or medical condition.
6.9 NOTICES: All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose:
CONSULTANT: CITY:
Bureau Veritas
Attn: Leilani York
220 Technology Drive
Irvine, CA 91618
Phone: (800)733-0660
City of Cudahy
Public Works Department
5220 Santa Ana Street
Cudahy, CA 90201
Attn: Aaron Hernandez Torres, Public
Works Director
Phone: (323) 773-5143
Fax: (323) 771-2072
Such notices shall be deemed effective when personally delivered or successfully transmitted by facsimile as evidenced by a fax confirmation slip or when mailed, forty-eight (48) hours after deposit with the United States Postal Service, first class postage prepaid and addressed to the Party at its applicable address.
6.10 LOBBYING CERTIFICATION
A. Federal Requirements:
CONSULTANT CERTIFIES THAT:
i. No Federal appropriate funds have been paid or will be paid, by or on behalf of CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, in the making of any cooperative agreement, or in the extension, continuation renewal, amendment, or modification of any federal contract, grant, loan or cooperative agreement.
ii. If any funds other than federal appropriate funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee or any agency, Member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, CONSULTANT shall complete and submit Standard Form-LLL, “Disclosures Form to Report Lobbying”, in accordance with its instructions.
iii. CONSULTANT shall require that the language of this certificate be included in all subcontracts and that all subcontractors shall certify and disclose accordingly.
B. County of Los Angeles Requirement:
CONSULTANT certifies that:
i. It is understood that each person/entity/firm who applies for a Community Development Commission contract, and as part of that process, shall certify that they are familiar with the requirements of Los Angeles County Chapter 2.160, (Los Angeles County
Ordinance 93-0031) and;
ii. That all persons/entities/firms acting on behalf of the above named firm have and will comply with the County Code, and;
iii. That any person/entity/firm who seeks a contract with Community Development Commission shall be disqualified therefrom and denied the contract, and shall be liable in civil action, if any lobbyist, lobbying firm, lobbyist employer or any other person or entity acting on behalf of the above named firm fails to comply with the provisions of the County Code.
6.11 COOPERATION; FURTHER ACTS: The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as is reasonably necessary, appropriate or convenient to achieve the purposes of this Agreement.
6.12 SUBCONTRACTING: CONSULTANT shall not subcontract any portion of the Work required by this Agreement, except as expressly stated herein, without the prior written approval of CITY. Subcontracts (including without limitation subcontracts with subconsultants), if any, shall contain a provision making them subject to all provisions stipulated in this Agreement, including provisions relating to insurance requirements and indemnification.
6.13 CITY’S RIGHT TO EMPLOY OTHER CONSULTANTS: CITY reserves the right to employ other contractors in connection with the various projects worked upon by CONSULTANT.
6.14 PROHIBITED INTERESTS: CONSULTANT warrants, represents and maintains that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONSULTANT, to solicit or secure this Agreement. Further, CONSULTANT warrants and represents that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for CONSULTANT, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty,
CITY shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of CITY, during the term of his or her service with CITY, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
6.15 TIME IS OF THE ESSENCE: Time is of the essence for each and every provision of this Agreement.
6.16 GOVERNING LAW AND VENUE: This Agreement shall be interpreted and governed according to the laws of the State of California. In the event of litigation between the Parties, venue, without exception, shall be in the Los Angeles County Superior Court of the State of California. If, and only if, applicable law requires that all or part of any such litigation be tried exclusively in federal court, venue, without exception, shall be in the Central District of California located in the City of Los Angeles, California.
6.17 ATTORNEYS’ FEES: If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and all other costs of such action.
6.18 SUCCESSORS AND ASSIGNS: This Agreement shall be binding on the successors and assigns of the Parties.
6.19 NO THIRD PARTY BENEFIT: There are no intended third party beneficiaries of any right or obligation assumed by the Parties. All rights and benefits under this Agreement inure exclusively to the Parties.
6.20 CONSTRUCTION OF AGREEMENT: This Agreement shall not be construed in favor of, or against, either Party but shall be construed as if the Parties prepared this Agreement together through a process of negotiation and with the advice of their respective attorneys.
6.21 SEVERABILITY: If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
6.22 AMENDMENT; MODIFICATION: No amendment, modification or supplement of this Agreement shall be valid or binding unless executed in writing and signed by both Parties, subject to CITY approval. The requirement for written amendments, modifications or supplements cannot be waived and any attempted waiver shall be void and invalid.
6.23 CAPTIONS: The captions of the various articles, sections and paragraphs are for convenience and ease of reference only, and do not define, limits, augment, or describe the scope, content, or intent of this Agreement.
6.24 INCONSISTENCIES OR CONFLICTS: In the event of any conflict or inconsistency between the provisions of this Agreement and any of the exhibits attached hereto, the provisions of this Agreement shall control.
6.25 ENTIRE AGREEMENT: This Agreement including all attached exhibits is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed herein and supersedes all other agreements or understandings, whether oral or written, or entered into between CITY and CONSULTANT prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid or binding. No amendment, modification or supplement to this Agreement shall be valid and binding unless in writing and duly executed by the Parties pursuant to Section 6.22, above.
6.26 COUNTERPARTS: .This Agreement shall be executed in three (3) original counterparts each of which shall be of equal force and effect. No handwritten or typewritten amendment, modification or supplement to any one counterparts shall be valid or binding unless made to all three counterparts in conformity with Section 6.16, above. One fully executed original counterpart shall be delivered to CONSULTANT and the remaining two original counterparts shall be retained by CITY.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed the day and year first appearing in this Agreement, above.
CITY OF CUDAHY:
By:
Alfonso Noyola, City Manager
Date:
TRANSTECH ENGINEERS, INC.:
By:
Leilani York, Associate Vice President
Date:
ATTEST:
By:
Richard Iglesias, City Clerk
Date:
APPROVED AS TO FORM:
By:
Victor Ponto, City Attorney
Date: