PROJECT STABILIZATION AGREEMENT
FOR THE CITY OF HERCULES
INTRODUCTION AND FINDINGS
This Project Stabilization Agreement (“Agreement”) is entered into this __ day of ______ , 2024 (“Effective Date”), by and between the City of Hercules (“City”), together with contractors and subcontractors of all tiers, who shall become signatory to this Agreement by signing the “Agreement to be Bound” (Addendum A) (referred to collectively herein as the “Contractors/Employers”), the Contra Costa County Building and Construction Trades Council (referred to herein as the “Council”), and the local Unions that have executed this Agreement (referred to collectively herein as the “Union” or “Unions”).
The purpose of this Agreement is to promote the efficiency of construction operations for the City through the use of skilled labor resulting in quality construction outcomes, and to provide for the peaceful settlement of labor disputes and grievances without strikes or lockouts, thereby promoting the public interest in assuring the timely and economical completion of a Project, as defined in Section 1.10.
WHEREAS, the timely and successful completion of a Project is of the utmost importance to meet the needs of the City and avoid increased costs resulting from delays in construction; and WHEREAS, workers of various skills will be required in the performance of construction work on a Project and will be represented by the Unions who are signatories to this Agreement and employed by the Contractors/Employers who are signatories to this Agreement; and WHEREAS, the use of skilled labor on construction work increases the safety of construction projects as well as the quality of completed work; and WHEREAS, it is recognized that a Project will likely require multiple contractors and bargaining units on the job site at the same time over an extended period of time, and thus, the potential for work disruption may be substantial without an overriding commitment to maintain continuity of work; and WHEREAS, the interests of the general public, the City, the Unions, and the Contractors/Employers would be best served if the construction work on a Project proceeded in an orderly manner without disruption caused by strikes, sympathy strikes, work stoppages, picketing, lockouts, slowdowns or other interferences with work; and WHEREAS, the Contractors/Employers and the Unions desire to mutually establish and stabilize wages, hours, and working conditions for the workers employed on a Project and to encourage close cooperation among the Contractors/Employers and the Unions so that a satisfactory, continuous, and harmonious relationship will exist; and WHEREAS, the parties agree that one of the primary purposes of this Agreement is to avoid the tensions that might arise on a Project if Union and nonunion workers of different employers were to work side by side on a Project, potentially leading to labor disputes that could delay completion of a Project; and WHEREAS, this Agreement is not intended to replace, interfere with, abrogate, diminish or modify existing local or national collective bargaining agreements in effect during a Project, insofar as any legally binding agreement exists between the Contractors/Employers and the affected Unions, except to the extent that the provisions of this Agreement conflict with provisions of the collective bargaining agreements, in which case the provisions of this Agreement shall prevail; and WHEREAS, the City places high priority on the development of comprehensive programs for the recruitment, training, and employment of residents of the Local Area, as defined herein, and military veterans, and recognizes the ability of local pre-apprenticeship and apprenticeship programs to provide meaningful and sustainable careers in the building and construction industry; and WHEREAS, Construction Contract(s) for work on a Project will be awarded in accordance with applicable provisions of federal, state, and local laws, including, but not limited to, the California Public Contract Code; and WHEREAS, the City has the right to select the lowest responsive and responsible bidder for the award of a Construction Contract on a Project; and WHEREAS, the parties to this Agreement pledge their full good faith and trust to work toward the mutually satisfactory completion of a Project pursuant to the terms and conditions of the Agreement.
NOW, THEREFORE, IT IS AGREED BETWEEN AND AMONG THE PARTIES HERETO, AS FOLLOWS:
ARTICLE I
DEFINITIONS
1.1 “Agreement” means this Project Stabilization Agreement.
1.2 “Agreement to be Bound” means the agreement (attached hereto as Addendum A) that shall be executed by each and every Contractor/Employer as a condition of working on a Project.
1.3 “City” means the City of Hercules, acting through its City Council, officers, employees, and authorized agents.
1.4 “Completion” means that point at which there is Final Acceptance by the City of a Construction Contract and the City has recorded a Notice of Completion. For purposes of this definition, “Final Acceptance” means that point in time at which the City has determined upon final inspection that the work has been completed in all respects and all required contract documents, contract drawings, warranties, certificates, manuals and data have been submitted and training completed in accordance with the contract documents and the City has executed a written acceptance of the work.
1.5 “Construction Contract” means a public works or improvement contract (including those procured through design-bid, design-build, lease-leaseback or other project delivery methods for construction of a Project) awarded and entered into by the City to complete a Project.
1.6 “Contractor(s)/Employer(s),” “Contractors/Employers,” or “Contractor/Employer” means any individual, firm, partnership or corporation (including the prime contractor, general contractor, construction manager, project manager, design-build entity, lease-leaseback entity or equivalent entity), or combination thereof, including joint ventures, and their successors and assigns, that enters into a Construction Contract with the City, and all contractors and subcontractors of any tier.
1.7 “Council” means the Contra Costa County Building and Construction Trades Council.
1.8 “Local Area” means, in order of priority, (i) West Contra Costa County, which includes the cities of Hercules, El Cerrito, Richmond, San Pablo, and Pinole and the unincorporated communities of Kensington, El Sobrante, North Richmond, Rodeo, Crockett, and Port Costa; and (ii) the remaining areas of Contra Costa County.
1.9 “Master Agreement” means the Master Collective Bargaining Agreement of each craft Union signatory hereto.
1.10 “Project” means a City project that is funded in whole or in part with City funds and has a total project cost of $1,000,000 or more, based on either the engineer’s estimate of the total cost of the project or the cumulative bid amount(s) submitted by the Contractor(s)/Employer(s) awarded the Construction Contract(s) for the project. All Construction Contracts required to complete an integrated Project shall be considered in determining whether this threshold is met. The City and the Council may mutually agree in writing to add additional projects or components to be covered by this Agreement. The term “Project” applies to all projects as defined in this Section, whether used in the singular or plural form herein.
1.11 “Project Manager” means the person(s) or entity(ies) designated by the City to oversee all phases of construction on a Project and the implementation of this Agreement.
1.12 “Union” or “Unions” means the Contra Costa County Building and Construction Trades Council and the Unions signatory to this Agreement, acting on their own behalf and on behalf of their respective affiliates and member organizations whose names are subscribed hereto and who have, through their officers, executed this Agreement.
ARTICLE II
SCOPE OF AGREEMENT
2.1 Parties: This Agreement applies to and is limited to all Contractors/Employers performing Construction Contracts on a Project (including subcontractors at any tier), and their successors and assigns, the City, the Council, and the Unions signatory to this Agreement.
2.2 Applicability: This Agreement governs all Construction Contracts that provide for the performance of Covered Work, as defined in Section 2.3, awarded on or after the Effective Date. This Agreement applies to all such Construction Contracts until Completion, unless otherwise set forth in this Agreement. Construction Contracts shall be considered completed as set forth in Section 1.4, except when the City directs a Contractor/Employer to engage in repairs, warranty work, punch list work, or modifications under a Construction Contract or when a Contractor/Employer performs work under a change order for a Construction Contract.
2.3 Covered Work: Covered Work includes all site preparation, surveying, construction, alteration, demolition, installation, improvement, remediation, retrofit, painting, or repair of buildings, structures and other works, and related activities for a Project that are within the craft jurisdiction of a Union and that are directly or indirectly part of a Project, including, without limitation to the following examples, geotechnical and exploratory drilling, temporary HVAC, landscaping and temporary fencing, soils and materials testing and inspection, pipelines (including those in linear corridors built to serve the Project), pumps, pump stations, start-up, modular furniture installation, final clean-up, as well as work done for a Project in temporary yards, dedicated sites, or areas adjacent to the Project, and at any on-site or off-site batch plant constructed to supply materials to a Project (“Covered Work”). Covered Work also includes the following:
2.3.1 Any start-up, calibration, commissioning, performance testing, repair, maintenance, and operational revisions to systems and/or subsystems for a Project performed after Completion, unless performed by City employees.
2.3.2 All on-site fabrication work over which the City, Contractor(s)/Employer(s), or subcontractor(s) possess the right of control, including work done for a Project in any temporary yard or area established for the Project, as well as any off-site work, including fabrication, that is traditionally performed by the Unions and is directly or indirectly part of the Project, provided such work is covered by a Master Agreement or local addenda to a national agreement of the applicable Union(s).
2.3.3 Except for the delivery of supplies, equipment, or materials that are stockpiled for later use, all construction trucking work, including the hauling and delivery of ready-mix, asphalt, aggregate, sand, soil, or other fill or similar material that is directly incorporated into the construction process, as well as the off-hauling of soil, sand, gravel, rocks, concrete, asphalt, excavation materials, construction debris, and excess fill, material, and/or mud. Contractor(s)/Employer(s), including brokers, of persons providing construction trucking work shall provide certified payroll records to the City within ten (10) days of a written request or as required by the bid specifications.
2.3.4 Covered Work within the following National Agreements shall be covered by those agreements rather than this Agreement, as follows: the National Transient Lodge (NTL) Articles of Agreement, the National Stack/Chimney Agreement, the National Cooling Tower Agreement, and the National Agreement of Elevator Constructors, and any Covered Work for instrument calibration work and loop checking shall be performed under the terms of the UA/IBEW Joint National Agreement for Instrument and Control Systems Technicians, except that Articles IV, XIII and XIV of this Agreement shall apply to such work.
2.4 Exclusions: The following work is not Covered Work, and therefore not subject to this Agreement:
2.4.1 Work performed by the City’s own employees as permitted by the Public Contract Code.
2.4.2 Work performed by non-construction craft employees of Contractor(s)/Employer(s), including, but not limited to, executives, managerial employees, administrative personnel, and supervisors above the level of general foreman (unless covered by an existing Master Agreement).
2.4.3 Any non-Project work performed on, near, or leading to a Project site that is undertaken by state, county, city, or other governmental bodies or their contractors, as well as work performed by public or private utilities or their contractors including all electrical utility, voice-data-video, and security installation work ahead of and up to the electrical service entry connection or the main point of entry into the building, except that all electrical utility, voice-data-video, and security installation work performed after the electrical utility service entrance or the main point of entry shall be Covered Work. Additionally, all contracted work performed ahead of the service entrance connection and main point of entry that is inside the property line for the Project and that provides for access to a building via a conduit or series of conduits shall be Covered Work.
2.4.4 Off-site maintenance of leased equipment and on-site supervision of such work.
2.4.5 Work substantially funded by any federal, state, local or other public agency that prohibits the use of project labor agreements on projects receiving its funding, or the funding of projects on which such agreements are used. With respect to such work, the City agrees to make a reasonable effort to defend the application of this Agreement, including by making a written request to the funding source. However, if only a specific provision of the Agreement is prohibited by the funding source, then, upon mutual agreement by the Council, the City shall modify the requirements of this Agreement accordingly to allow this Agreement to remain in place and to advance the purposes of this Agreement to the maximum extent feasible.
2.4.6 Work performed by employees of a manufacturer or vendor on the manufacturer’s equipment if required in order to maintain the manufacturer’s warranty or guarantee on such equipment; provided that (1) the warranty agreement is the manufacturer’s usual and customary warranty agreement for such equipment and is consistent with industry practice; and (2) the manufacturer or vendor has first demonstrated at the pre-job conference, by an enumeration of specific tasks, that in order to preserve the warranty, the work cannot be performed by construction persons employed under this Agreement.
2.4.7 Laboratory work for testing and inspections not covered by a Master Agreement.
2.4.8 Maintenance work, as defined by Public Contract Code section 22002(d), that is performed for Hercules Landscape and Lighting Assessment Districts and where the applicable contract is an annual contract that has an average value of less than one million dollars ($1,000,000) per year.
2.5 Award of Contracts: The City retains the right to reject any and all bids and to re-advertise or cancel a Project. If the City re-advertises a Project, the re-advertised Project will remain subject to this Agreement. It is understood and agreed that the City has the right to select any qualified bidder for the award of Construction Contracts under this Agreement. The bidder need only be willing, ready, and able to comply with this Agreement. It is further agreed that this Agreement shall be included in all invitations to bid or solicitations for proposals from contractors or subcontractors for work on the Project. A copy of all invitations to bid shall be provided to the Council at the time of issuance.
ARTICLE III
EFFECT OF AGREEMENT
3.1 By executing this Agreement, the Council, the Unions, and the City agree to be bound by each and every provision of this Agreement.
3.2 By accepting the award of a Construction Contract for a Project, whether as a Contractor/Employer or subcontractor thereunder, the Contractor/Employer agrees to be bound by each and every provision of this Agreement and agrees to evidence its acceptance prior to the commencement of work by executing the Agreement to be Bound in the form attached hereto as Addendum A.
3.3 At the time that any Contractor/Employer enters into a subcontract under a Construction Contract, the Contractor/Employer shall provide a copy of this Agreement to the subcontractor and shall require the subcontractor, as a condition of accepting the award of a construction subcontract, to agree to be bound by each and every provision of this Agreement, by executing the Agreement to be Bound, prior to the commencement of work. The obligations of a Contractor/Employer may not be evaded by subcontracting.
3.4 This Agreement shall only be binding on the signatory parties hereto, and their successors and assigns, and shall not apply to the parents, affiliates, subsidiaries, or other ventures of any such party. Each Contractor/Employer shall alone be liable and responsible for its own individual acts and conduct and for any breach or alleged breach of this Agreement, except as otherwise provided by law or the applicable Master Agreement. Any dispute between the Union(s) and the Contractor(s)/Employer(s) with respect to compliance with this Agreement shall not affect the rights, liabilities, obligations, and duties between the Union(s) and other Contractor(s)/Employer(s) party to this Agreement.
3.5 It is mutually agreed by the parties that any liability by a Union signatory to this Agreement shall be several and not joint. Any alleged breach of this Agreement by a Union shall not affect the rights, liabilities, obligations, and duties between the Contractor(s)/Employer(s) and the other Union(s) party to this Agreement.
3.6 The provisions of this Agreement, including the Master Agreements incorporated herein by reference, shall apply to Covered Work under this Agreement, notwithstanding the provisions of any other local, area, and/or national agreements which may conflict with or differ from the terms of this Agreement. To the extent a provision of this Agreement conflicts with a Master Agreement, the provision of this Agreement shall prevail. Where a provision of a Master Agreement does not conflict with this Agreement, the provision of the Master Agreement shall apply.
ARTICLE IV
WORK STOPPAGES, STRIKES, SYMPATHY STRIKES AND LOCKOUTS
4.1 The Unions, City, and Contractor(s)/Employer(s) covered by this Agreement agree that for the duration of the Project:
4.1.1 There shall be no strikes, sympathy strikes, work stoppages, picketing, handbilling, slowdowns, withholding of work, unlawful refusals to work, lockouts, sickouts, walk-offs, sit-downs, stand-ins, wobbles, boycotts, or other work stoppages, or otherwise advising the public that a labor dispute exists, for any reason, by the Unions or employees employed on a Project, at the job site of a Project. In addition, there shall be no strikes, sympathy strikes, work stoppages, picketing, handbilling, slowdowns, withholding of work, unlawful refusals to work, lockouts, sickouts, walk-offs, sit-downs, stand-ins, wobbles, boycotts, or other work stoppages, or otherwise advising the public that a labor dispute exists, for any reason, at any other City facility because of a dispute on the Project. Except as set forth herein, disputes arising between the Unions and Contractor(s)/Employer(s) on other projects not subject to this Agreement, are not governed by the terms of the Agreement or this Article.
4.1.2 There shall be no lockout of any kind by a Contractor/Employer of workers employed on a Project.
4.1.3 If a Master Agreement expires before the Contractor/Employer completes the performance of work under a Construction Contract and the Union or Contractor/Employer gives notice of a demand for a new or modified Master Agreement, the Union agrees that it will not strike on Covered Work or engage in any work disruption as described in Section 4.1.1 and the Union and the Contractor/Employer agree that the expired Master Agreement shall continue in full force and effect for Covered Work until a new or modified Master Agreement is reached. If the new or modified Master Agreement provides that any terms of the Master Agreement shall be retroactive, the Contractor/Employer agrees to comply with any retroactive terms of the new or modified Master Agreement that are applicable to any employees who were employed on a Project during the interim, with retroactive payment due within seven (7) calendar days of the effective date of the new or modified Master Agreement. For the avoidance of doubt, Section 4.1.1 shall remain applicable for the duration of a Project even where a Master Agreement has expired.
4.1.4 In consideration of the foregoing, the Contractor(s)/Employer(s) shall not incite, encourage, or participate in any lockout or cause to be locked out any employee covered under the provisions of this Agreement. The term “lockout” does not include the City’s decision to terminate or suspend work on the site or any portion thereof for any operational reason.
4.1.5 In the case of nonpayment of wages or trust fund contributions on the Project, the Union shall give the City and the Contractor(s)/Employer(s) three (3) business days’ notice when nonpayment of trust fund contributions has occurred and one (1) business days’ notice when nonpayment of wages has occurred or when paychecks being tendered to a financial institution normally recognized to honor such paychecks will not honor such paycheck, of the intent to withhold labor from the Contractor(s)/Employer(s)’ or their subcontractors’ workforce, during which time the Contractor/Employer may correct the default. In this instance, a Union’s withholding of labor (but not picketing) from a Contractor/Employer who has failed to pay its fringe benefit contributions or failed to meet its weekly payroll shall not be considered a violation of this Article.
4.1.6 Notification: If the City or any Contractor/Employer contends that any Union has violated this Article, it will notify the Senior Executive of the Council and the Senior Executive of the Union, in writing, setting forth the facts alleged to violate the Article, prior to instituting the expedited arbitration procedure set forth below. The Council will immediately use its best efforts to cause the cessation of any violation of this Article. The leadership of the Union will immediately inform the workers of their obligations under this Article. A Union complying with this obligation shall not be held responsible for the unauthorized acts of employees it represents.
4.2 Expedited Arbitration: Any party to this Agreement shall institute the following procedure, prior to initiating any other action at law or equity, when a breach of this Article is alleged to have occurred.
4.2.1 A party invoking this procedure shall notify Robert Hirsch, as the permanent arbitrator, or David Weinberg, as the alternate arbitrator, under this procedure. If the permanent arbitrator is unavailable at any time, the alternate will be contacted. If neither is available, the parties shall select an arbitrator from the list in Section 13.4. Notice to the arbitrator shall be by the most expeditious means available, with notice by email or telephone to the City, the involved Contractor/Employer, and the party alleged to be in violation, and to the Council and involved local Union if a Union is alleged to be in violation.
4.2.2 Upon receipt of said notice, the City will contact the permanent arbitrator named above, or the alternate if the permanent arbitrator is not available, who will attempt to convene a hearing within 24 hours if it is contended that the violation still exists.
4.2.3 The arbitrator shall notify the parties by email or telephone of the place and time for the hearing. The hearing shall be completed in one session, which, with appropriate recesses at the arbitrator’s discretion, shall not exceed twenty-four (24) hours unless otherwise agreed upon by all parties. A failure of any party to attend the hearing shall not delay the hearing of evidence or the issuance of an award by the arbitrator.
4.2.4 The sole issue at the hearing shall be whether or not a violation of Section 4.1 of the Agreement has occurred. The arbitrator shall have no authority to consider any matter of justification, explanation or mitigation of such violation or to award damages, which issue is reserved for court proceedings, if any. The award shall be issued in writing within three (3) hours after the close of the hearing, and may be issued without a written opinion. If any party desires a written opinion, one shall be issued within fifteen (15) calendar days, but the parties shall not delay compliance with or enforcement of the award due to the issuance of a written opinion. The arbitrator may order cessation of the violation of this Article, and the arbitrator’s award shall be served on all parties by hand or registered mail upon issuance. If a party found in violation of this Article fails to comply with the arbitrator’s award ordering the party to cease the violation, the party in violation shall pay to the affected party as liquidated damages the sum of $10,000 per shift for which it fails to comply, or portion thereof, until such violation is ceased. The arbitrator shall retain jurisdiction to resolve any disputes regarding the liquidated damages claimed under this Section, but such retention shall not prevent the moving party from seeking judicial enforcement of the initial decision as allowed in Section 4.2.5 below.
4.2.5 The arbitrator’s award may be enforced by any court of competent jurisdiction upon the filing of this Agreement and all other relevant documents referred to above in the manner set forth in this Section. The party filing such enforcement proceedings shall give written notice to the other party. In a proceeding to obtain a temporary order enforcing the arbitrator’s award as issued under this Article, all parties waive the right to a hearing and agree that such proceeding may be ex parte. However, such agreement does not waive any party’s right to seek or participate in a hearing for a final order of enforcement. Any court order enforcing the arbitrator’s award shall be served on all parties by hand or delivered by certified mail.
4.2.6 Any rights created by statute or law governing arbitration proceedings inconsistent with the above procedure, or which interfere with compliance with the above procedure, are waived by the parties.
4.2.7 The fees and expenses of the arbitrator shall be divided equally between the party instituting the arbitration proceedings provided in this Article and the party alleged to be in breach of its obligation under this Article.
4.2.8 Should either the permanent or the alternate arbitrator identified above no longer work as a labor arbitrator, the City and the Council shall mutually agree to a replacement.
ARTICLE V
PRE-JOB CONFERENCES
5.1 Timing: The Project Manager shall convene and conduct, at a location and time mutually agreeable to the Council, a pre-job conference with the Unions and the representatives of all involved Contractors/Employers, who shall be prepared to announce craft assignments and discuss in detail the scope of work and the other issues set forth below, at least fourteen (14) calendar days prior to:
The commencement of any Project work, and
The commencement of Project work under a subsequently awarded Construction Contract.
5.2 The pre-job conference shall be attended by a representative of each participating Contractor/Employer and each affected Union. The Council and City may attend at their discretion.
5.3 The pre-job conference shall include, but not be limited to, the following subjects:
A listing of the scope of work for each Contractor/Employer; The craft assignments;
The estimated number of craft workers required to perform the work; Transportation arrangements;
The estimated start and completion dates of the work; and Discussion of pre-fabricated materials.
5.4 Review Meetings: The City and the Council shall have the right to call a meeting of the appropriate parties to ensure the terms of this Agreement are being fulfilled.
ARTICLE VI
NO DISCRIMINATION
6.1 Discrimination based on race, national origin, religion, sex, sexual orientation, political affiliation, or membership in a labor organization in hiring and dispatching workers for a Project is prohibited. The Contractors/Employers and the Unions agree to comply with all anti-discrimination provisions of federal, state, and local law to protect employees and applicants for employment on the Project.
ARTICLE VII
UNION SECURITY
7.1 The Contractors/Employers recognize the Unions as the sole bargaining representative of all craft employees performing Covered Work under this Agreement, and all such employees must be represented by a Union for the duration of their employment on a Project.
7.2 The Contractors/Employers shall make and transmit all deductions for Union dues, fees, and assessments that have been authorized by employees in writing in accordance with the applicable Master Agreement. This Agreement does not require any employee of a non-Union contractor to join a Union or to pay dues or fees to a Union as a condition of working on the Project; however, nothing in this Article is intended to supersede the requirements of the applicable Master Agreements as to Contractors/Employers signatory to such Master Agreements and as to employees of those Contractors/Employers who are performing Covered Work.
7.3 Authorized representatives of the Unions shall have access to a Project whenever Covered Work is being, has been, or will be performed on the Project.
ARTICLE VIII
REFERRAL
8.1 The Contractor(s)/Employer(s) performing construction work on a Project shall, in filling craft job requirements, utilize and be bound by the registration facilities and referral systems established or authorized by the Unions signatory hereto. The Contractor(s)/Employer(s) shall have the right to reject any applicant referred by the Union(s), in accordance with the applicable Master Agreement.
8.2 The Contractor(s)/Employer(s) shall have the unqualified right to select and hire directly all supervisors above the level of general foreman that it considers necessary and desirable, without such persons being referred by the Union(s), unless covered by a Master Agreement.
8.3 In the event that referral facilities maintained by the Union(s) are unable to fill the requisition of a Contractor/Employer for employees within a forty-eight (48) hour period (Saturdays, Sundays and Holidays excluded) after such requisition is made by the Contractor/Employer, the Contractor/Employer shall be free to obtain the worker(s) from any source. A Contractor/Employer who hires a worker pursuant to this Section shall immediately provide the appropriate Union with the name and address of such worker and shall immediately direct such worker to the appropriate Union hiring hall to be referred for work on the Project.
8.4 It is in the interest of the parties to this Agreement to facilitate employment of Local Area residents and to use resources in the Local Area in construction of the Project. The objective of the parties is that at least 25% of the total hours worked on the Project, including apprentice hours, will be performed by residents of the Local Area. The Unions will exert their utmost efforts to recruit and refer sufficient numbers of skilled craft persons from the Local Area who possess the requisite skills and qualifications to fulfill the needs and requirements of the Contractor(s)/Employer(s) and the requirements of this Article. To the fullest extent allowed by law and the Unions’ lawful hiring hall provisions, residents of the Local Area, including journeymen and apprentices, shall be referred for Covered Work under this Agreement.
8.5 Contractor(s)/Employer(s) shall utilize the “name-call”, “re-hire”, “transfer” and or “sponsorship” options, where available under a craft’s Master Agreement and the Union hiring hall rules, to maximize the participation of Local Area residents on the Project.
8.6 Contractor(s)/Employer(s) shall maintain an updated list containing the craft classification of any worker hired for the Project along with the city and zip code associated with each worker’s residence and shall provide that list to the City and/or Council upon request. Alternatively, the City and/or Council may request certified payroll records from the Contractor(s)/Employer(s). For purposes of establishing residency, Post Office boxes will not be accepted.
ARTICLE IX
WAGES AND BENEFITS
9.1 The Contractors/Employers agree to pay all benefit contributions required by the applicable Master Agreement(s), including but not limited to the vacation, pension and/or other deferred compensation, apprenticeship, worker protection and assistance, health benefit funds, and any other funds established by the applicable Master Agreement(s) for each hour worked on a Project, in the amounts designated in the applicable Master Agreement(s).
9.2 By signing this Agreement, the Contractors/Employers adopt and agree to be bound by the written terms of the legally established Trust Agreements for the benefit funds described in Section 9.1, which may from time to time be amended, specifying the detailed basis upon which payments are to be made into, and benefits paid out of, such Trust Funds. The Contractors/Employers authorize the parties to such local Trust Agreements to appoint trustees and successor trustees to administer the Trust Funds and hereby ratify and accept the trustees so appointed as if they were appointed by the Contractors/Employers. The Contractors/Employers agree to execute a separate subscription agreement(s) when such Trust Fund(s) requires such document(s).
9.3 Wages, Hours, Terms and Conditions of Employment: The wages, hours and other terms and conditions of employment on a Project shall be governed by the Master Agreement of the respective craft, to the extent such Master Agreement is not inconsistent with this Agreement. Where a subject is covered by the Master Agreement and not covered by this Agreement, the Master Agreement will prevail. When a subject is covered by both the Master Agreement and this Agreement, to the extent there is any conflict, this Agreement will prevail.
9.4 Holidays: Holidays shall be as set forth in the applicable Master Agreement.
ARTICLE X
APPRENTICES
10.1 Recognizing the need to develop adequate numbers of competent workers in the construction industry, including on public works projects, the Contractor(s)/Employer(s) shall employ apprentices from a California state-approved Joint Apprenticeship Training Program in their respective crafts, to perform such work as is within their capabilities and which is customarily performed by the craft in which they are indentured.
10.2 Apprentice ratios must comply with the provisions of the California Labor Code and the applicable state prevailing wage determination.
10.3 The objective of the parties is that at least 25% of the apprentices employed on a Project will be from the Local Area. The employment of apprentices shall count toward the 25% local hiring goal in Section 8.4. All Local Area apprentices referred to Contractor(s)/Employer(s) under this Agreement shall be enrolled in State of California-approved Joint Apprentice Training Programs, in accordance with Section 10.1, and the prioritization of apprenticeship hiring shall be consistent with the law, hiring hall procedures of the Unions, and the standards and procedures of the Joint Apprenticeship and Training Committee. The Contractor(s)/Employer(s) shall reach this goal through utilization of the normal hiring hall procedures. The Unions are committed to working with the Contractor(s)/Employer(s) to achieve these goals.
10.4 Consistent with the Master Agreements, there shall be no restriction on the utilization of apprentices in performing the work of their craft provided they are properly indentured and supervised.
ARTICLE XI
HELMETS TO HARDHATS
11.1 The Contractor(s)/Employer(s) and Unions recognize a desire to facilitate the entry into the building and construction trades of veterans who are interested in careers in the building and construction industry. The Contractor(s)/Employer(s) and Unions agree to utilize the services of the Center for Military Recruitment, Assessment and Veterans Employment (“Center”), and the Center’s “Helmets to Hardhats” program to serve as a resource for preliminary orientation, assessment of construction aptitude, referral to apprenticeship programs or hiring halls, counseling and mentoring, support network, employment opportunities and other needs as identified by the parties.
11.2 The Unions and Contractor(s)/Employer(s) agree to coordinate with the Center to participate in an integrated database of veterans who are interested in working on the Projects and of apprenticeship and employment opportunities for the Projects. To the extent permitted by law, the Unions will give credit to such veterans for bona fide, provable past experience.
ARTICLE XII
COMPLIANCE
12.1 It shall be the responsibility of the Contractor(s)/Employer(s) and Unions to investigate and monitor compliance with Article IX of this Agreement. Nothing in this Agreement shall be construed to interfere with or supersede the usual and customary legal remedies available to the Unions and/or employee benefit Trust Funds to collect delinquent wages or contributions from Contractor(s)/Employer(s) on a Project. The City shall monitor and enforce the Contractor(s)/Employer(s) compliance with state prevailing wage requirements, as may be required by the Labor Code, as well as the Contractors/Employers’ compliance with this Agreement.
ARTICLE XIII
GRIEVANCE ARBITRATION PROCEDURE
13.1 Project Labor Disputes: All disputes involving the application or interpretation of a Master Agreement to which a Contractor/Employer and a Union are parties shall be resolved pursuant to the resolution procedures of that Master Agreement. All disputes relating to the interpretation or application of this Agreement, other than disputes under Article IV and Article XIV, shall be resolved by a neutral arbitrator pursuant to the grievance arbitration procedures set forth in this Article.
13.2 Employee Discipline: All disputes involving the discipline and/or discharge of an employee working on a Project shall be resolved through the grievance and arbitration provisions contained in the Master Agreement for the craft of the affected employee. No employee working on a Project shall be disciplined or discharged without just cause.
13.3 No grievance shall be recognized unless the grieving party (Union or District Council on its own behalf, or on behalf of an employee whom it represents, or a Contractor/Employer on its own behalf) provides notice in writing to the party with whom it has a dispute within five (5) business days after becoming aware of the dispute but in no event more than thirty (30) business days after it reasonably should have become aware of the event giving rise to the dispute. Time limits may be extended by mutual written agreement of the parties.
Grievances shall be settled according to the following procedures:
Step 1: Within five (5) business days after the receipt of the written notice of the grievance, the representative of the involved Union or District Council, or his/her designee, and the representative of the involved Contractor/Employer, shall confer and attempt to resolve the grievance.
Step 2: If the grievance is not resolved at Step 1, within five (5) business days of the Step 1 meeting or the conclusion of efforts to resolve the grievance at Step 1, the alleged grievance may be referred in writing by either involved party to the Business Manager(s) of the affected Unions involved and the Labor Relations Manager of the Contractor/Employer, or the designated representative of the Contractor/Employer, for discussion and resolution. This time limit may be extended by mutual consent of both parties. Regardless of which party has initiated the grievance, the Union shall notify its International Union representative prior to the Step 2 meeting, and the International Union representative shall advise if it intends to participate in the Step 2 meeting. The Project Manager and the Council shall have the right to participate in any efforts to resolve the dispute at Step 2.
Step 3: If the grievance is not resolved at Step 2, either party may request the dispute be submitted to arbitration within five (5) business days of the Step 2 meeting or the conclusion of efforts to resolve the grievance at Step 2. This time limit may be extended by mutual consent of both parties. Within five (5) business days after referral of a dispute to arbitration, the representatives shall notify the permanent arbitrator designated in Article IV, or if not available, the alternate arbitrator designated in Article IV, for final and binding arbitration. If the permanent arbitrator or the alternate is not available, an arbitrator shall be selected by the alternate striking method from the list below. The order of striking names from the list of arbitrators shall be determined by a coin toss, the winner of which shall decide whether they wish to strike first or second.
Carol Vendrillo
William Riker
Sara Adler
13.5 The decision of the arbitrator shall be final and binding on all parties. The arbitrator shall have no authority to change, amend, add to, or detract from any of the provisions of the Agreement. The expense of the arbitrator shall be borne equally by both parties. The arbitrator shall arrange for a hearing on the earliest available date from the date of his/her selection. A decision shall be given to the parties within five (5) calendar days after completion of the hearing unless such time is extended by mutual agreement. A written opinion may be requested by a party from the presiding arbitrator.
13.6 The time limits specified at any step of these grievance procedures may be extended by mutual agreement of the parties. However, failure to process a grievance, or failure to respond in writing within the time limits provided above, without an agreed upon extension of time, shall be deemed a waiver of such grievance without prejudice, or without precedent to the processing and/or resolution of like or similar grievances or disputes.
13.7 In order to encourage the resolution of disputes and grievances at Steps 1 and 2, the parties agree that such settlements shall not be precedent setting.
13.8 Retention: At the time a grievance is submitted under this Agreement or any Master Agreement, the Union(s) may request that the City withhold and retain an amount from what is due and owing to the Contractor/Employer against whom the grievance is filed, or its higher-tier contractor, sufficient to cover the damages alleged in the grievance, should the Union(s) prevail, or require the Contractor/Employer involved in the grievance to obtain a bond sufficient to cover the damages alleged in the grievance, should the Union(s) prevail. The City may decline to make the requested withholding based on the terms of the applicable Construction Contract or if such withholding would be in violation of law.
13.9 Should any of the arbitrators listed in this Article or Article IV no longer work as a labor arbitrator, the City and the Council shall mutually agree to a replacement.
ARTICLE XIV
WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES
14.1 The assignment of Covered Work will be solely the responsibility of the Contractor/Employer performing the work involved; and such work assignments will be in accordance with the Plan for the Settlement of the Jurisdictional Disputes in the Construction Industry (the “Plan”) or any successor Plan.
14.2 All jurisdictional disputes on a Project between or among the Unions and the Contractors/Employers that are parties to this Agreement, shall be settled and adjusted according to the present Plan established by the Building and Construction Trades Department or any other plan or method of procedure that may be adopted in the future by the Building and Construction Trades Department. Decisions rendered shall be final, binding and conclusive on the Contractor(s)/Employer(s) and Unions that are parties to this Agreement.
14.3 If a dispute arising under this Article involves the Northern California Carpenters Regional Council or any of its subordinate bodies, an arbitrator shall be chosen by the procedures specified in Article V, Section 5 of the Plan from a list composed of John Kagel, Robert Hirsch, and Thomas Pagan, and the arbitrator’s hearing on the dispute shall be held at the offices of the California State Building and Construction Trades Council in Sacramento, California within fourteen (14) calendar days of the selection of the arbitrator. All other procedures shall be as specified in the Plan.
14.4 All jurisdictional disputes shall be resolved without the occurrence of any strike, work stoppage, or slow-down of any nature, and the Contractor/Employer’s assignment shall be adhered to until the dispute is resolved. Individual employees violating this Section shall be subject to immediate discharge.
14.5 Each Contractor/Employer will conduct a pre-job conference with the Council prior to commencing Covered Work. The Project Manager and the City will be advised in advance of all such conferences and may participate if they wish. Pre-job conferences for different Contractors/Employers may be held together.
ARTICLE XV
MANAGEMENT RIGHTS
15.1 Consistent with the Master Agreements, the Contractor(s)/Employer(s) shall retain full and exclusive authority for the management of their operations, including the right to direct their work force in their sole discretion. No rules, customs or practices shall be permitted or observed which limit or restrict production, or limit or restrict the working efforts of employees, except that lawful manning provisions in the Master Agreement shall be recognized.
ARTICLE XVI
DRUG AND ALCOHOL TESTING
16.1 The use, sale, transfer, purchase and/or possession of a controlled substance, alcohol and/or firearms at any time during the work day is prohibited.
16.2 Drug and alcohol testing shall be conducted in accordance with the substance abuse prevention policies set forth in the applicable Master Agreement.
ARTICLE XVII
SAVINGS CLAUSE
17.1 If any article, provision, clause, sentence or word of this Agreement is determined to be illegal or void as being in contravention of any applicable law, by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect and the parties shall substitute, by mutual agreement, in its place and stead, an article, provision, clause, sentence or word that will meet the objections to its validity and that will be in accordance with its original intent.
17.2 In the event a decision of a court of competent jurisdiction materially alters the terms of this Agreement such that the intent of the parties is defeated, then the entire Agreement shall be null and void.
17.3 If a court of competent jurisdiction determines that all or part of the Agreement is invalid and/or enjoins the City from complying with all or part of its provisions, and the City accordingly determines that compliance with this Agreement will not be required to perform work under a Construction Contract, then the Unions will no longer be bound by Article IV.
ARTICLE XVIII
TERM
18.1 This Agreement shall apply to Construction Contract(s) until Completion in accordance with Sections 1.4 and 2.2.
18.2 This Agreement shall become effective on the Effective Date. It shall remain in full force and effect for a period of five years from the Effective Date. At least six months prior to each five-year anniversary of the Effective Date, the parties agree to meet to discuss the Agreement, any proposed changes, and whether each party desires to extend the Agreement. Prior to the five-year anniversary of the Effective Date, the City shall present to the City Council on the status of the Agreement. Absent changes or termination by written notice of either the City or the Council, the Agreement will roll over for an additional five years.
ARTICLE XIX
MISCELLANEOUS PROVISIONS
19.1 The headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. All defined terms used in this Agreement shall be deemed to refer to the singular and/or plural, in each instance as the context and/or particular facts may require.
19.2 This Agreement may be executed in counterparts, such that original signatures may appear on separate pages and when bound together all necessary signatures shall constitute an original. Faxed or emailed signature pages transmitted to other parties to this Agreement shall be deemed the equivalent of original signatures.
19.3 Each of the persons signing this Agreement represents and warrants that such person has been duly authorized to sign this Agreement on behalf of the party indicated, and each of the parties signing this Agreement warrants and represents that such party is legally authorized and entitled to enter into this Agreement.
19.4 The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party’s draftsmanship thereof. [SIGNATURES TO FOLLOW]
CONTRA COSTA COUNTY BUILDING AND CONSTRUCTION TRADES COUNCIL By:
Bill Whitney, CEO
Date:
CITY OF HERCULES
By: Dante Hall, City Manager
Date:
ATTEST:
By: Eibleis Melendez, City Clerk
Date:
APPROVED AS TO FORM:
By: Patrick Tang, City Attorney
Date:
[UNION SIGNATURES]
ADDENDUM A
AGREEMENT TO BE BOUND
[Date]
[Addressee]
[Address]
Re: Project Stabilization Agreement for the City of Hercules Agreement to be Bound
Dear :
The undersigned confirms that it agrees to be a party to and bound by the Project Stabilization Agreement for the City of Hercules (“Agreement”) as such Agreement may, from time to time, be amended by the parties or interpreted pursuant to its terms.
By executing this Agreement to be Bound, the undersigned subscribes to, adopts and agrees to be bound by the written terms of the legally established trust fund agreements as set forth in Section 9.1 of the Agreement, as they may from time to time be amended, specifying the detailed basis upon which contributions are to be made into, and benefits made out of, such trust funds, and ratifies and accepts the trustees appointed by the parties to such trust funds. The undersigned agrees to execute a separate subscription agreement(s) for such trust funds when such trust fund(s) require(s) such document(s).
The obligation to be a party to and bound by the Agreement shall extend to all work covered by the Agreement undertaken by the undersigned. The undersigned shall require all of its subcontractors, of whatever tier, to become similarly bound for all their work within the scope of the Agreement by signing an identical Agreement to be Bound.
This letter shall constitute a subscription agreement, to the extent of the terms of the letter.
Contractor/Subcontractor:
California Contractor State License No. or Motor Carrier (CA) Permit No.:
Name of Authorized Person (print):
Signature of Authorized Person:
Title of Authorized Person:
Telephone Number of Authorized Person:
Address of Authorized Person:
CA DIR Registration Number:
Project Stabilization Agreement