TODD STERMER, CMC
TODD STERMER, CMC
City Clerk
Exhibit D
Maxie Park Gymnasium HVAC Remodel
PROJECT TITLE
Compliance Provisions for Professional Services Agreement Including HUD Funding Requirements
1. Ownership: Ownership of all real or personal property, acquired in whole or in part with CDBG, NSP, HOME, ESG and/or HOPWA funds (HUD Funds) for use on this Activity, shall be vested in the City of Fresno (CITY) , unless otherwise authorized by the CITY. When the CONSULTANT determines that the property is no longer required for the purposes of this Activity, the CONSULTANT must notify the CITY and obtain approval for disposition of the property in accordance with applicable guidelines.
2. Copyright: Except as otherwise provided in the terms and conditions of this Contract, the CONSULTANT paid through this Contract is free to copyright any books, publications or other copyrightable materials developed in the course of the Activity and under this Contract. However, HUD and the CITY reserve a royalty-free, non-exclusive and irrevocable license to reproduce, publish or otherwise use and to authorize others to use, for the U.S.
Department of Housing and Urban Development (HUD) and CITY purposes:
(a) the copyright in any work developed under this Contract; and (b) any rights of copyright to which a CONSULTANT purchases ownership with grant support.
The Federal government's rights and the CITY’s rights identified above must be conveyed to the publisher and the language of the publisher’s release form must insure the preservation of these rights.
3. Reporting Requirements: The CONSULTANT agrees to complete and submit all reports, in such form and according to such schedule, as may be required by the CITY or HUD.
Further, the CONSULTANT agrees to require any subcontractors to submit reports that may be required and to incorporate such language in its agreements. Failure to meet deadlines with the required information could result in liquidated damages and sanctions in accordance with the Contract.
4. Access to Records: All records with respect to all matters covered by this Contract shall be made available at any time for audit and inspection by HUD, the CITY or their representatives upon their request.
5. Maintenance of Records: Records for non-expendable property purchased totally or partially with Federal funds must be retained for five years after final close-out of the grant. All other pertinent contract records including financial records, supporting documents and statistical records shall be retained for a minimum of five years after the final close-out report. However, if any litigation, claim, or audit is started before the expiration of the five year period, then records must be retained for five years after the litigation, claim or audit is resolved.
6. Confidential Information: Any reports, information, data, etc., given to, prepared by, or assembled by the CONSULTANT under this Contract, which the Grantee or the CITY requests to be kept confidential, shall not be made available to any individual or organizati on by the CONSULTANT without prior written approval of HUD or the CITY, as applicable.
7. Reporting of Fraudulent Activity: If at any time during the term of this Contract anyone has reason to believe by whatever means that, under this or any other program administered by the CITY, a recipient of funds has improperly or fraudulently applied for or received benefits, monies or services pursuant to this Contract or any other contract, such information shall be reported immediately to the appropriate authorities.
8. Political Activity: None of the funds, materials, property or services provided directly or indirectly under this Contract shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office or otherwise.
9. Conflicts of Interest and Ethical Standards: The following provisions regarding “conflicts of interest” apply to the use and expenditure of CDBG funds by the Grantee and its subrecipients, including the CONSULTANT.
In the procurement of supplies, equipment, construction and services, the more restrictive conflict of interest provisions of HUD, the CITY or the State of California apply. In instances not governed by the above, the following provisions shall apply:
a) Except for eligible administrative or personnel costs, the general rule is that no person who is an employee, agent, consultant, officer, or elected or appointed official of the CITY or other unit of general local government or any designated public agencies or subrecipient which are receiving HUD funds who exercise or have exercised any function or responsibilities with respect to HUD funded activities assisted herein or are in a position to participate in a decision making process or gain inside informa tion with regard to such activities, may obtain a financial interest or benefit from the activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder either for themselves or those with whom they have family or business ties during their tenure or for one year thereafter. Exceptions may be granted by the CITY on a case by case basis as requested upon full disclosure in writing. b) Should any governmental entity, CONSULTANT , subcontractor , employee or official know or perceive any breach of ethical standards or conflict of interest under the HUD grant, they shall immediately notify the CITY. If the CITY finds any circumstances that may give rise to a breach of ethical standards or conflict of interest, under any grant, they shall notify the CITY. The CITY may undertake any administrative remedies it deems appropriate, where there is a breach of ethical standards or conflict of interest under the regulations governing the CDBG Program and the CITY policies.
10. Applicable Law: In addition to the applicable Federal laws and regulations, this Contract is also made under and shall be const rued in accordance with the ordinances of the CITY. By execution of this Contract, the CONSULTANT agrees to submit to the jurisdiction of the CITY for all matters arising or to arise hereunder, including but not limited to performance of said Contract and payment of all licenses and taxes of whatever kind or nature applicable hereto.
11. Limitation of Liability: The CONSULTANT will not assert in any legal action by claim or defense, or take the position in any administrative or legal procedures that he is an agent or employee of the CITY. The CITY shall not be liable for failure on the part of the CONSULTANT, their subcontractors any other party representing the CONSULTANT to perform all work in accordance with all applicable laws and regulations. To the furthest extent allowed by law, including California Civil Code section 2782.8, CONSULTANT shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's
fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of CONSULTANT, its principals, officers, employees, agents or volunteers in the performance of this Agreement. The cost to defend charged to CONSULTANT shall not exceed CONSULTANT's proportionate percentage of fault, except as provided in California Civil Code Section 2782.8.
If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
12. Legal Services: No attorney-at-law shall be engaged through the use of any funds provided under this Contract in any legal action or proceeding against the CITY, any local public body or any political subdivision.
13. Contract: If any provision in this Contract shall be held to be invalid or unenforceable, the remaining portions shall remain in effect. In the event such invalid or unenforceable provision is considered an essential element of this Contract, the parties shall promptly negotiate a replacement provision, which addresses the intent of such provision.
14. Amendments: Any changes to this Contract affecting the scope of work of the Activity must be approved, in writing, by the CITY and the CONSULTANT and shall be incorporated in writing into this Contract.
15. Termination for Convenience: This Contract may be terminated for convenience in accordance with 24 CFR Part 85.44.
16. Sanctions: If the CONSULTANT fails or refuses to comply with the provisions set forth herein, the CITY may take any or all of the following actions: cancel, terminate or sus pend in whole or in any part the contract, or refrain from extending any further funds to the CONSULTANT until such time as the CONSULTANT is in full compliance.
17. Subcontracting: If any part of the work covered by this Contract is to be subcontracted, the C ONSULTANT shall identify the subcontracting organization and the contractual arrangements made therewith to the Owner and to the CITY . All subcontracts must be approved by the Owner and the CITY to insure they are not debarred or suspended by the Federal or CITY governments and to insure the Owner and the CITY understand the arrangements.
18. Subcontracting with Small and Minority Firms, Women’s Business Enterprise and Labor Surplus Areas: It is national policy to award a fair share of contracts to disadvantaged business enterprises (DBEs), small business enterprises (SBEs), minority business e nterprises (MBEs) and women’s business enterprises (WBEs). Accordingly, affirmative steps must be taken to assure that DBEs, SBEs, MBEs and WBEs are utilized when possible as sources of supplies, equipment, construction and services. Affirmative steps shall include the following:
(a) Including qualified DBEs, SBEs, MBEs and WBEs on solicitation lists; (b) Assuring that DBEs, SBEs, MBEs and WBEs are solicited whenever they are potential sources;
(c) Whenever economically feasible, dividing total requirements into smaller tasks or quantities so as to permit maximum participation by DBEs, SBEs, MBEs and WBEs; (d) Where the requirement permits, establishing delivery schedules which will encourage participation by DBEs, SBEs, MBEs and WBEs;
(e) Using the services and assistanc e of the Small Business Administration, Minority
Business Development Agency, the CITY Office of Small and Minority Business Assistance, the U.S.
Department of Commerce and the Community Services Administration as required; and (f) Requiring subcontractors, if any, to take the affirmative actions outlined in (1) – (5) above.
19. Debarment Certification: The CONSULTANT must comply with Executive Order 11246 regarding Federal debarment and suspension regulations prior to entering into a financial agreement for any transaction as outlined below.
a. Any procurement contract for goods and services, regardless of type, expected to equal or exceed the Federal procurement small purchase threshold (which is $100,000 and is cumulative amount from all federal funding sources).
b. Any procurement contract for goods and services, regardless of amount, under which the CONSULTANT will have a critical influence on or substantive control over the transaction.
In addition, no contract may be awarded to any CONSULTANT who is ineligible to receive contracts under any applicable regulations of the CITY.
20. Equal Employment Opportunity: The CONSULTANT will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the CITY.
In carrying out the Activity, the CONSULTANT shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The CONSULTANT must take affirmative action to insure that applicants for employment are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following:
employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff o r termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The CONSULTANT shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the CITY setting forth the provisions of this non-discrimination clause. The CONSULTANT shall CITY that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. The CONSULTANT will, in all solicitations or advertisements for employees by or on behalf of the CONSULTANT, CITY that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. The CONSULTANT shall incorporate the foregoing requirements of this paragraph in all of its subcontracts for the Activity unless exempted by rules, regulations, or orders of the CITY issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will b e binding upon each subcontractor or vendor.
The CONSULTANT will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided by the CITY advising the said labor union or workers’ representatives of the CONSULTANT’s commitment under this Section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
The CONSULTANT will furnish all information and r eports required by Executive Order
11246 of September 24, 1965, and by the ordinances, administrative orders or other rules of the CITY or pursuant thereto, and will permit access to its books, records, and accounts by HUD and the CITY for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
In the event of the CONSULTANT's noncompliance with the non-discrimination clauses of this Contract or with any of such rules, regulations, or orders, this Contract may be canceled, terminated or suspended in whole or in part and the CONSULTANT may be declared ineligible for further CITY government contracts or federally assisted construction contract procedures authorized in Executive Order 11246 of September 24, 1965, or by rules, regulations, or orders of the CITY, or as otherwise provided by law.
21. Age Discrimination: In accordance with 45 CFR, Parts 90 and 91, the CONSULTANT agrees there shall be no bias or age discrimination as to benefits and participation under this Contract.
22. Section 109 of the Housing and Community Development Act of 1974: No person in the United CITYs shall on the grounds of race, color, national origin or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with HUD funds made available by the CITY.
23. Section 504 of the Rehabilitation Act of 1973, as amended: The CONSULTANT agrees that no otherwise qualified individual with disabilities shall, solely by reason of his disability, be denied the benefits, or be subjected to discrimination including discrimination in employment, any program or activity.
24. Section 3, Compliance and Provision of Training, Employment and Business Opportunities: The work to be performed under this Contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, (12 USC § 1701u).
The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-funded activities covered by Section 3 shall, to the greatest extent feasible be directed to low and very low -income persons, particularly persons who are recipients of HUD assistance for housing.
The parties to this said Contract agree to comply with HUD's regulations in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this Contract, the parties to this Contract certify that they are under no contractual or other impediment that would prevent them from complying with the 24 CFR Part 135 regulations.
The CONSULTANT agrees to send to each labor organization or representative of workers with which the CONSULTANT has a collective bargaining agreement or other understanding, if any, a notice advising the organization or workers’ representative of the CONSULTANT’s commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions; the qualifications for each; and the name and location of per son(s) taking applications for each of the positions; and the anticipated date the work shall begin. The CONSULTANT agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the
subcontractor is in violation of the regulations in 24 CFR Part 135. The CONSULTANT will not subcontract with any subcontract or where the CONSULTANT has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135.
The CONSULTANT will certify that any vacant employment positions including training positions, that are filled (1) after the CONSULTANT is selected but before this Contract has been executed, and (2) with persons other than those to whom the regulations of 24 CFR Part 135 require employment opportunities to be directed, were not filled to circumvent the CONSULTANT's obligations under 24 CFR Part 135.
The CONSULTANT agrees to submit such reports as required to document compliance with 24 CFR Part 135. Noncompliance with the regulations in 24 CFR Part 135 may result in sanctions, termination of this Contract for default, and debarment or suspension from future HUD assisted contracts.
25. Lead-Based Paint: The construction or rehabilitation of residential structures with any portion of the Assistance is subject to the HUD Lead-Based Paint regulations found at 24 CFR Part 35. Any grants or loans made by the Grantee for the rehabilitation of residential structures with any portion of the Assistance shall be made subject to the provisions for the elimination of lead-based paint hazards under subpart B of said regulations, and the Grantee shall be responsible for the inspections and certifications required under Section 35.14(f) thereof.
26. Compliance with Air and Water Acts: (Applicable to construction contracts and related subcontracts exceeding $100,000) This Contract is subject to the requirements of the Clean Air Act, as amended, 42 USC § 7401 et seq., the Federal Water Pollution Control Act (Clean Water Act), as amended, 33 USC § 1251 et seq., and the regulations of the Environmental Protection Agency with respect to 40 CFR Part 15, as amended from time to time. In particular, the following are required:
(a) A stipulation by the CONSULTANT or subcontractor that any facility to be utilized in the performance of any nonexempt contract or subcontract is not listed on the List of Violating Facilities, issued by the Environmental Protection Agency (EPA) pursuant to 40 CFR § 15.20. (b) Agreement by the CONSULTANT to comply with all the requirements of Section 114 of the Clean Air Act, as amended (42 USC § 7414) and Section 308 of the Federal Water Pollution Control Act, as amended (33 USC § 1318) relating to inspection, monitoring, entry, reports and information, as well as all other requirements specified in said Sections 114 and 308, and all regulations and guidelines issued thereunder.
(c) A stipulation that as a condition of award of contract prompt notice will be given of any notification received from the Directo r, Office of Federal Activities, EPA, indicating that a facility utilized or to be utilized for the contract under consideration is to be listed on the EPA list of Violating Facilities.
(d) Agreement by the CONSULTANT that the CONSULTANT will include or cause to be included the criteria and requirements in these subparagraphs (1) through (4), in every nonexempt subcontract and requiring that the CONSULTANT will take such action as the CITY may direct as a means of enforcing such provisions.
In no event shall any amount of the Assistance be utilized with respect to a facility which has given rise to a conviction under section 113(c) (1) of the Clean Air Act or Section 309(c) of the Federal Water Pollution Control Act.
27. Federal Labor Standards Provisions : (Applicable to construction contracts in excess of $2,000 or CDBG residential contracts involving more than eight units or HOME residential contracts exceeding eleven units)
The Activity or program to which the construction work covered by this Contract pertains is being funded by the United States of America and the Federal Labor Standards Provisions as set forth on Attachment 1 are included in this Contract pursuant to the provisions applicable to such Federal assistance. These provisions must be complied with or sanctions will be instituted.
Attachment 1
U.S. Department of Housing and Urban Development, Office of Labor Relations form HUD-4010 (07/2003) ref. Handbook 1344.1
A. 1. (i) Minimum Wages. All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wag e determination of the Secretary of Labor which is attached thereto and made a part thereof, regardless of any contractual relationship which may be alleged to exist between the CONSULTANT and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section l(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR 5.5 (a)(1)(iv); also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period.
Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing w ork in more than one classification may be compensated at the rate specified for each classification of the time actually work therein: Provided, That the employer’s payroll records accurately set forth the time spent in each classification in which work i s performed. The wage determination (including any additional classification an wage rates conformed under 29 CFR 5.5(a)(1)(ii) and the Davis-Bacon poster (WH- 1321) shall be posted at all times by the CONSULTANT and its subcontractors at the site of the w ork in a prominent and accessible, place where it can be easily seen by the workers.
(ii) (a) Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. HUD shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (b) If the CONSULTANT and the laborers and mechanics to be employed I the classification (if known), or their representatives, and HUD or its designee agree on the classification and wage rate (including the amount designated for fringe benefits where
appropriate), a report of the action taken shall be sent by HUD or its designee to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, D.C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advised HUD or its designee within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.) (c) In the event the CONSULTANT, the laborers or mechanics to be employed in the classification or their representatives, and HUD or its designee do not agree on the proposed classification and wage rate (includi ng the amount designated for fringe benefits, where appropriate), HUD or its designee shall refer the questions, including the views of all interested parties and the recommendation of HUD or its designee, to the Administrator for determination.
The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advice HUD or its designee or will notify HUD or its designee within the 30- day period that additional time is necessary. (Approv ed by the Office of Management and Budget under OMB Control Number 1214- 0140.)
(d) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1) (ii) (b) or (c) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
(iii) 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, the CONSULTANT shall either pay the benefit as in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the CONSULTANT does not make payments to a trustee or other third person, the CONSULTANT may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anti cipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the CONSULTANT, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the CONSULTANT to set aside in a separate account assets for the meeting of obligations under the plan or program. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.)
2. Withholding. HUD or its designee 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 the CONSULTANT under this contract or any other Federal contract with the same prime CONSULTANT, or any other Federal -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime CONSULTANT so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees and helpers, employed by the CONSULTANT or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice trainee or helper, employed or working on the site of the work, all or part of the wages required by the contract, HUD or its designee may, after written notice to the CONSULTANT, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension or any further payment, advance, or guarantee of funds until such violations have ceased. HUD or its designee may, after written notice to the CONSULTANT, disburse such amounts withheld for an on account of the CONSULTANT or subcontractor to the respective employees to whom they are due. The Comptroller General shall make such disbursements in
the case of direct Davis-Bacon Act contracts.
3. (i) Payrolls and basic records. Payrolls and basic records relating thereto shall be maintained by the CONSULTANT during the course of the work preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. 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 l (b) (2) (B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions make and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5 (a)(1)(iv) 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 l(b)(2)(B) of the Davis-Bacon Act, the CONSULTANT shall maintain records which show that the commitment of 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 cost incurr ed in providing such benefits.
CONSULTANTs employing apprentices and trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under OMB Control Numbers 1215-0140 and 1215-0017.) (ii) (a) the CONSULTANT shall submit weekly for each week in which any contract work is performed a copy of all payrolls to HUD or its designee if the agency is a party to the contract, but if the agency is not such a party, the CONSULTANT will submit the payrolls to the applicant sponsor, or owner, as the case may be, for transmission to HUD or its designee. The payrolls submitted shall set our accurately and completely all of the information required to be maintained under 29 CFR 5.5(a) (3) (i). 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, and Washington, DC 20402. The prime CONSULTANT is responsible for the submission of copies of payrolls by all subcontractors. (Approved by the Office of Management and Budget Under OMB Control Number 1215-0129.)
(b) Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by the CONSULTANT or subcontractor or his or her agent who pays for supervises the payment of the persons employed under the contract and shall certify the following:
(1) That t he payroll for the payroll period contains the information required to be maintained under 29 CFR 5.5 (a)(3)(i) and that such information is correct and complete’ (2) That each laborer or mechanic (including each apprentice, and trainee) employed on the contract 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 CFR Part 3; (3) 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. (c) 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 subparagraph A.3.(ii)(b).
(d) The falsification of any of the above certifications may subject the CONSULTANT or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of
Title 31 of the United CITYs Code.
(iii) The CONSULTANT or subcontractor shall make the records required under subparagraph A.3.(i) available for inspection, copying, or transcription by authorized representatives of HUD or its designee or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the CONSULTANT or subcontractor fails to submit the required records or to make them available, HUD or its designee may, after written notice to the CONSULTANT, sponsor, applicant or owner, take such action as may be neces sary 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 action pursuant to 29 CFR 5.12.
4. 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 Training Administration, Office of Apprenticeship Training, Employer and Training Services, or with a CITY Apprenticeship Agency recognized by the Office, or if a person is employed in his 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 Office of Apprenticeship Training, Employer and Labor Services or a CITY Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen in any craft classification shall not be greater than the ratio permitted to the CONSULTANT as to his entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, which is not registered or otherwise employed as CITY 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 ration permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a CONSULTANT is performing construction on a Activity 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 t he 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 Office of Apprenticeship Training, Employer and Labor Services, or a CITY Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the 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 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for work performed unless they ar e 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 job si te 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 percent age 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 p aid 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 that 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 work actually performed. In addition, any trainee 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 for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the 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 29 CFR Part 5 shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended and 29 CFR Part 30.
5. Compliance with Copeland Act requirements. The CONSULTANT shall comply with the requirements of 29 CFR Part 3 which are incorporated by reference in this contract.
6. Subcontracts. The CONSULTANT or subcontractor will insert in any subcontracts the clauses contained in subparagraphs 1 through 11 of this paragraph A and such other clauses as HUD or its designee may by appropriate instructions require, and a copy of the applicable prevailing wage decision, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime CONSULTANT shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in this paragraph.
7. Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract and for debarment as a CONSULTANT and a subcontractor as provided in 29 CFR 5.12.
8. Compliance with Davis -Bacon and Related Act Requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.
9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the CONSULTANT (or any if its subcontractor s) and HUD or its designee, the U.S. Department of Labor, or the employees or their representatives.
10. (i) Certification of Eligibility. By entering into this contract the CONSULTANT certifies that neither it (nor he or she) nor any person or firm who has an interest in the 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 CFR 5.12(a) (1) or to be awarded HUD contracts or participate in HUD
programs pursuant to 24 CFR Part 24.
(ii) No part of this contract 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 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. (iii) The penalty for making false Statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Additionally, U.S. Criminal Code, Section 1 01 0, Title 18, U.S.C., “Federal Housing Administration transactions”, provided in part: “Whoever, for the purpose of . . . influencing in any way the action of such Administration….. makes, utters or publishes any state ment knowing the same to be false….. shall be fined not more than $5,000 or imprisoned not more than two years, or both.”
11. Complaints, Proceedings, or Testimony by Employees. No laborer or mechanic to whom the wage, salary, or other labor standards provisions of this Contract are applicable shall be discharged or in any other manner discriminated against by the CONSULTANT or any subcontractor because such employee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Contract to his employer.
B. Contract Work Hours and Safety Standards Act. The provisions of this paragraph B are applicable only where the amount of the prime contract exceeds $100,000. As used in this paragraph, the terms “laborers” and “mechanics” include watchmen and guards. (1) Overtime Requirements. No CONSULTANT or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of 40 hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of 40 hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in subparagraph (1) of this paragraph, the CONSULTANT and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such CONSULTANT and subcontractor shall be liable to the United CITY s in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violations of the clause set forth in subparagraph (1)
of this paragraph, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of 40 hours without payment of the overtime wages required by the clause set forth in sub paragraph (1) of this paragraph. (3) Withholding for unpaid wages and liquidated damages. HUD or its designee 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 any moneys payable on account of work performed by the CONSULTANT or subcontractor under any such contract, or any other Federal contract with the same prime contract, or any other Federally-assisted contract subject to the Contract Work Hours and Safety Standards Act which is held by the same prime CONSULTANT such sums as may be determined to be necessary to satisfy any liabilities of such CONSULTANT or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in subparagraph (2)of this paragraph.
(4) Subcontracts. The CONSULTANT or subcontractor shall insert in any subcontracts the
clauses set forth in subparagraph (1) through (4) of this paragraph and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime CONSULTANT or lower tier subcontractor with the clauses set forth in subparagraphs (1) through (4) of this paragraph.
C. Health and Safety. The provisions of this paragraph C are applicable only where the amount of the prime contract exceeds $100,000.
(1) No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to this health and safety as determined under construction safety and health standards promulgated by the Secretary of Labor by regulation.
(2) The CONSULTANT shall comply with all regulations issued by the Secretary of Labor pursuant to Title 29 Part 1926 and failure to comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act, 40 USC 3701 et. seq. (3) The CONSULTANT shall include the provisions of this paragraph in every subcontract so that such provisions will be binding on each subcontractor. The CONSULTANT shall take such action with respect to any subcontract as the Secretary of Housing and Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions.