CDBG FUNDED CONSTRUCTION CONTRACT
BETWEEN THE CITY OF HUNTINGTON BEACH AND
Nobest Inc.
FOR
Residential Zone Maintenance Zone 3 ADA Curb Ramp Project, CC-1838 THIS AGREEMENT ("Agreement") made and entered into by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and Nobest Inc. , a
California hereinafter referred to as "CONTRACTOR."
WHEREAS, the Federal Department of Housing and Urban Development is providing partial funding for this Contract to CITY through a Community Development Block Grant; WHEREAS, CITY has solicited bids for a public works project, hereinafter referred to as "PROJECT," more fully described as Residential Zone Maintenance Zone 3 ADA Curb Ramp Project, CC-1838 _ in the City of Huntington Beach; and CONTRACTOR has been selected to perform said services,
NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and exchanged, the parties covenant and agree as follows:
STATEMENT OF WORK; ACCEPTANCE OF RISK
CONTRACTOR shall complete and construct the PROJECT pursuant to this Agreement and the Contract Documents (as hereinafter defined) and furnish, at its own cost and expense, all labor, plans, tools, equipment, supplies, transportation, utilities and all other items, services and facilities necessary to complete and construct the PROJECT in a good and workmanlike manner.
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CONTRACTOR agrees to fully assume the risk of all loss or damage arising out of the nature of the PROJECT, during its progress or prior to acceptance by CITY, from the action of the elements, from any unforeseen difficulties which may arise or be encountered in the prosecution of work, and for all other risks of any description in connection with the work, including, but not limited to, all expenses incurred by or in consequence of the suspension or discontinuance of work, except such as are herein expressly stipulated to be borne by CITY, and for well and faithfully completing the work within the stipulated time and in the manner shown and described in this Agreement, and in accordance with the requirements of CITY for the compensation set forth in the accepted bid proposal.
2. ACCEPTANCE OF CONDITIONS OF WORK; PLANS AND
SPECIFICATIONS
CONTRACTOR acknowledges that it is fully familiar with all the terms, conditions and obligations of this Agreement and the Contract Documents (as defined below in this Section), the location of the job site, and the conditions under which the work is to be performed, and that it enters into this Agreement based upon its thorough investigation of all such matters and is relying in no way upon any opinions or representations of CITY.
It is agreed that the Contract Documents are incorporated into this Agreement by this reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its subcontractors, if any, shall be bound by the Contract Documents insofar as they relate in part or in any way, directly or indirectly, to the work covered by this Agreement.
"Contract Documents" as defined herein mean and include:
A. This Agreement;
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B. Bonds covering the work herein agreed upon;
c. The CITY's standard Plans and Specifications and special contractual provisions, including those on file in the office of the Director of Public Works of CITY and adopted by the City Council, and any revisions, amendments or addenda thereto;
D. The edition of Standard Specifications for Public Works Construction, published by Builders' News, Inc., 10801 National Boulevard, Los Angeles, CA 90064, and all amendments thereto, written and promulgated by the Southern California chapter of the American Public Works Association and the Southern California District Associated General Contractors of the California Joint Cooperative Committee as specified in the particular Plans, Specifications, Special Provisions and Addenda applicable to the Project;
E. All bid documents, including the Notice Inviting Bids, the Special Instructions to Bidders, CONTRACTOR's proposal, (attached as Exhibit "A"), "Form HUD-4010," the Federal Labor Standards Provision of the United States (attached as Exhibit "B), and "Standard Federal Equal Employment Opportunity Construction Contract Specifications," as established by Federal Executive Order 11246 (attached as Exhibit "C").
The particular Plans, Specifications, Special Provisions and Addenda applicable to the PROJECT. Anything mentioned in the Specifications and not indicated in the Plans or indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned SF: 16-5215-142605.doc/rev 12/2016 3
in both. In case of a discrepancy between any Plans, Specifications, Special provisions, or Addenda, the matter shall be immediately submitted by CONTRACTOR to the Department of Public Works of CITY (hereinafter referred to as "DPW"), and CONTRACTOR shall not attempt to resolve or adjust the discrepancy without the decision of DPW, save only at its own risk and expense.
Should there be any conflict between the terms of this Agreement and the bid or proposal of CONTRACTOR, then this Agreement shall control and nothing herein shall be considered as an acceptance of the terms of the bid or proposal which is in conflict herewith.
COMPENSATION
CITY agrees to pay and CONTRACTOR agrees to accept as full compensation for the faithful performance of this Agreement, subject to any additions or deductions made under the provisions of this Agreement or the Contract Documents, a sum not to exceed One Hundred Ninety-Six Thousand Seven Hundred Dollars
196,700 ), as set forth in the Contract Documents, to be paid as provided in this Agreement.
COMMENCEMENT OF PROJECT
CONTRACTOR agrees to commence the PROJECT within ten (10) working days after the Notice To Proceed is issued and diligently prosecute the PROJECT to completion within Twenty-Five 25) consecutive working days from the day the Notice to Proceed is issued by DPW, excluding delays provided for in this Agreement.
TIME OF THE ESSENCE
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The parties hereto recognize and agree that time is of the essence in the performance of this Agreement and each and every provision of the Contract Documents.
CONTRACTOR shall prepare and obtain approval as required by the Contract Documents for all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of its work in conformance with the progress schedule set forth in the Contract Documents. CONTRACTOR shall coordinate its work with the work of all other contractors, subcontractors, and CITY forces working on the PROJECT in a manner that will facilitate the efficient completion of the PROJECT and in accordance with the terms and provisions of this Agreement. CITY shall have complete control of the premises on which the work is to be performed and shall have the right to decide the time and order in which the various portions of the work shall be performed and the priority of the work of other contractors, subcontractors and CITY forces and, in general, all matters concerning the timely and orderly conduct of the work of CONTRACTOR on the premises.
6. CHANGES
CONTRACTOR shall adhere strictly to the plans and specifications set forth in the Contract Documents unless a change therefrom is authorized in writing by DPW.
CONTRACTOR agrees to make any and all changes, furnish materials and perform all work necessary within the scope of the PROJECT as DPW may require in writing. Under no condition shall CONTRACTOR make any changes without the prior written order or acceptance of DPW, and CITY shall not pay any extra charges made by CONTRACTOR that have not been agreed upon in writing by DPW.
When directed to change the work, CONTRACTOR shall submit immediately to DPW a written cost proposal reflecting the effect of the change. Should DPW not agree to such SF:16-5215-142605.doc/rev 12/2016 5
cost proposal, the work shall be performed according to the changes ordered in writing by DPW and the proper cost thereof shall be negotiated by the parties upon cost and pricing data submitted by CONTRACTOR; thereupon, CITY will promptly issue an adjusted change order to CONTRACTOR and the Agreement price will be adjusted upward or downward accordingly.
7. NOTICE TO PROCEED
No work, services, material, or equipment shall be performed or furnished under this Agreement unless and until a Notice to Proceed has been given to CONTRACTOR by CITY. CITY does not warrant that the work will be available on the date the Notice to Proceed is issued. In the event of a delay in commencement of the work due to unavailability of the job site, for any reason, relief to CONTRACTOR shall be limited to a time extension equal to the delay due to such unavailability.
8. BONDS
Only bonds issued by California admitted sureties will be accepted.
CONTRACTOR shall, prior to its performance of this Agreement, furnish the following two (2) bonds approved by the City Attorney:
A bond in the amount of one hundred percent (100%) of the Agreement price to guarantee CONTRACTOR's faithful performance of the work; and
2. A bond in the amount of one hundred percent of the Agreement price to guarantee payment of all claims for labor and materials furnished.
In addition, CONTRACTOR shall submit to CITY a bond in the amount of one hundred percent (100%) of the final Agreement price, including all change orders, to warrant such performance for a period of one (1) year after CITY's acceptance thereof within ten (10) days of filing of the Notice of Completion.
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9. WARRANTIES
CONTRACTOR unconditionally guarantees all work done under this Agreement including, but not limited to, any workmanship, installation, fabrication, material or structural facilities constructed. CONTRACTOR, within ten (10) days after notice by CITY of any defect in the work, shall have the option to make appropriate repairs or replace the defective item or items. Upon expiration of such ten- (10) day period, CITY may then make appropriate repair or replacement at CONTRACTOR's risk and own cost and expense.
10. INDEPENDENT CONTRACTOR
It is understood and agreed that CONTRACTOR is, and shall be, acting at all times hereunder as an independent contractor and not an employee of CITY. CONTRACTOR shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONTRACTOR and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services performed hereunder.
11. LIQUIDATED DAMAGES/DELAYS
It is agreed by the parties hereto that in case the total work called for hereunder is not in all parts and requirements finished or completed within the number of calendar days as set forth herein, damage will be sustained by CITY; and that it is, and would be, impractical and extremely difficult to ascertain and determine the actual damage which CITY would sustain in the event of and by reason of such delay. It is, therefore, agreed that CONTRACTOR will pay to CITY, liquidated damages and as a penalty, of
One Thousand Dollars ($ 1,000 per each
calendar day's delay in completing the work in excess of the number of working/calendar days SF:16-5215-142605.doc/rev 12/2016 7
set forth herein, which represents a reasonable endeavor by the parties hereto to estimate a fair compensation for the foreseeable damages CITY would sustain in the event of and by reason of such delay; and CONTRACTOR agrees to pay these damages herein provided, and further agrees that CITY may deduct the amount thereof from any monies due or that may become due to CONTRACTOR hereunder. For projects on the National Highway System (NHS), the local formula for liquidated damages will be provided.
CONTRACTOR will be granted an extension of time and will not be assessed damages for any portion of the delay in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of CONTRACTOR, including, but not limited to, acts of God or of the public enemy, fire, floods, epidemics, quarantine restrictions, strikes, unsuitable weather, or delays of subcontractors due to such causes.
CONTRACTOR shall, within fifteen (15) days from the beginning of any such delay (unless DPW shall grant a further period of time), notify DPW in writing of the cause of the delay and CITY shall extend the time for completing the work if, in its judgment, the findings of fact thereon justify the delay; and the decision of DPW shall be conclusive on the parties hereto.
Should CONTRACTOR be delayed in the prosecution or completion of the work by the act, neglect or default of CITY, or should CONTRACTOR be delayed by waiting for materials required by this Agreement to be furnished by CITY, or by damage caused by fire or other casualty at the job site for which CONTRACTOR is not responsible, or by the combined action of the workers, in no way caused by or resulting from default or collusion on the part of CONTRACTOR, or in the event of a lockout by CITY, then the time herein fixed for the SF:16-5215-142605.doc/rev 12/2016 8
completion of the work shall be extended by the number of days CONTRACTOR has thus been delayed, but no allowance or extension shall be made unless a claim therefor is presented in writing to CITY within fifteen (15) days of the commencement of such delay.
No claims for additional compensation or damages for delays, irrespective of the cause thereof, and including without limitation the furnishing of materials by CITY or delays by other contractors or subcontractors, will be allowed and an extension of time for completion shall be the sole remedy of CONTRACTOR.
12. DEMANDS FOR ADDITIONAL TIME OR MONEY
A. Definitions.
(1) "Change Order" means a document signed by CONTRACTOR and CITY which authorizes an addition, deletion or revision in the work, or an adjustment in the Compensation under Section 3, or the Completion Time specified at Section 4. (2) "Demand" means a written demand for a Change Order by CONTRACTOR for any of the following:
(a) A time extension;
(b) Payment of money or damages arising from work done by, or on behalf of, CONTRACTOR pursuant to this Agreement and payment of which is not expressly permitted pursuant to Section 3 of this Agreement;
(c) Payment of an amount the CITY disputes;
(d) Any disputes and other matters relating to the acceptability of the work performed or the interpretation of the Contract Documents; (e) A request for a time extension or additional payment based upon differing site conditions, such as subsurface or latent physical conditions at the job site SF:16-5215-142605.doc/rev 12/2016 9
differing materially from those indicated in this Agreement or the Contract Documents, or unknown physical conditions at the job site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent to work of the PROJECT; or
(f) A request for a time extension or additional payment based upon acts of neglect by CITY or due to fires, floods, labor disputes, epidemics, abnormal weather conditions or acts of God.
B. A Demand for a time extension or payment of money or damages may only be granted by a Change Order.
C. No Change Order may be granted except where CONTRACTOR has submitted a Demand to the DPW (or his or her written designee). All Demands shall be submitted promptly, but in no event later than thirty (30) days after the occurrence of the event giving rise to the Demand. The Demand shall be in writing and include all documents necessary to substantiate the Demand. The DPW shall act on the Demand within fifteen (15) days after receipt, including by requesting additional information from CONTRACTOR to determine whether to approve the Change Order the Demand seeks. The DPW shall act on the Demand within fifteen (15) days after receipt of the additional information or within a period of time no greater than the time CONTRACTOR took to produce the additional information requested, whichever is greater.
D. Notwithstanding the thirty (30) days to submit a Demand under Subparagraph C, in the case of differing or unknown site conditions, immediately upon encountering the conditions, CONTRACTOR shall notify the DPW in writing of the conditions, so that the CITY may promptly investigate the conditions.
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E. If CONTRACTOR disputes the DPW's written response on the Demand, or the CITY fails to respond within the time prescribed, CONTRACTOR may so notify the City Engineer, in writing, either within fifteen (15) days of receipt of the City Engineer's response or within fifteen (15) days of the DPW's failure to respond within the time prescribed, respectively, and request an informal conference to meet and confer for settlement of the Demand. Upon CONTRACTOR's request, the DPW shall schedule a meet and confer conference within thirty (30) days to seek to resolve.
F. CITY and CONTRACTOR shall execute appropriate Change Orders covering changes to the time or price by executing the Change Order by mutual agreement. If the CITY and CONTRACTOR are unable to reach a mutual agreement, then the City Engineer shall issue a written decision on the claim within a reasonable time.
G. Following the meet and confer conference, if the Demand remains in dispute, CONTRACTOR may file a claim with the City as provided in Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the time CONTRACTOR submits his or her Demand until the Demand is denied as a result of the meet and confer process, including any period of time utilized by the meet and confer process.
13. VARIATIONS IN ESTIMATED QUANTITIES
The quantities listed in the bid schedule will not govern final payment. Payment to CONTRACTOR will be made only for the actual quantities of Agreement items used in construction of the PROJECT, in accordance with the plans and specifications. Upon completion of the PROJECT, if the actual quantities used are either more than or less than the SF: 16-5215-142605.doc/rev 12/2016
quantities listed in the bid schedule, the bid price shall prevail subject to the provisions of this Section. DPW may, at its sole discretion, when warranted by the facts and circumstances, order an equitable adjustment, upwards or downwards, in payment to CONTRACTOR where the actual quantities used in construction of the PROJECT are in variation to the quantities listed in the bid schedule. No claim by CONTRACTOR for an equitable adjustment in price or time for completion shall be allowed if asserted after final payment under this Agreement. If the quantity variation is such as to cause an increase in the time necessary for completion, DPW shall ascertain the facts and circumstances and make such adjustment for extending the completion date as in its sole judgment the findings warrant.
14. PROGRESS PAYMENTS
Each month DPW will make an estimate in writing of the work performed by CONTRACTOR and the value thereof. From each progress estimate, five percent (5%) will be deducted and retained by CITY and the remainder of the progress estimate, less the amount of all previous payments since commencement of the work, will be paid to CONTRACTOR.
When CONTRACTOR has, in the judgment of DPW, faithfully executed fifty percent (50%) or more of the value of the work as determined from the bid schedule, and if DPW finds that satisfactory progress has been and is being made, CONTRACTOR may be paid such sum as will bring the payments of each month up to one hundred percent (100%) of the value of the work completed since the commencement of the PROJECT, as determined in its sole discretion by DPW, less all previous payments and less all previous retained amounts.
CITY's final payment to CONTRACTOR, if unencumbered, or any part thereof unencumbered, shall be made thirty (30) days after the acceptance of the work and the filing of a Notice of Completion by CITY. Provided, however, that in the event of a dispute between CITY SF:16-5215-142605.doc/rev 12/2016 12
and CONTRACTOR, CITY may withhold from the final payment an amount not to exceed 150 percent of the value of any disputed amount of work. Payments shall be made on demands drawn in the manner required by law, each payment to be accompanied by a certificate signed by DPW, affirming that the work for which payment is demanded has been performed in accordance with the terms of the Agreement and that the amount stated in the certificate is due under the terms of the Agreement. Partial payments on the contract price shall not be considered as an acceptance of any part of the work.
15. WITHHELD CONTRACT FUNDS, SUBSTITUTION OF SECURITIES At the request and at the sole cost and expense of CONTRACTOR, who shall retain beneficial ownership and receive interest, if any thereon, CITY shall permit the substitution and deposit therewith of securities equivalent to the amount of any monies withheld by CITY to ensure performance under the terms of this Agreement.
16. AFFIDAVITS OF SATISFACTION OF CLAIMS
After the completion of the work contemplated by this Agreement, CONTRACTOR shall file with DPW its affidavit stating that all workers and persons employed, all firms supplying materials and all subcontractors working upon the PROJECT have been paid in full and that there are no claims outstanding against the PROJECT for either labor or material, except certain items, if any, to be set forth in CONTRACTOR's affidavit covering disputed claims, or items in connection with Notices to Withhold, which have been filed under the provisions of the statutes of the State of California.
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17. WAIVER OF CLAIMS
The acceptance by CONTRACTOR of the payment of the final certificate shall constitute a waiver of all claims against CITY under or arising out of this Agreement.
18. INDEMNIFICATION, DEFENSE, HOLD HARMLESS
CONTRACTOR hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands, defense costs, and consequential damage or liability of any kind or nature, however caused, including those resulting from death or injury to CONTRACTOR's employees and damage to CONTRACTOR's property, arising directly or indirectly out of the obligations or operations herein undertaken by CONTRACTOR, caused in whole or in part by any negligent act or omission of CONTRACTOR, any subcontractors, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, including but not limited to concurrent active or passive negligence, except where caused by the active negligence, sole negligence, or willful misconduct of the CITY, its officers, elected or appointed officials, employees, agents, and volunteers. CONTRACTOR will conduct all defense at its sole cost and expense and CITY shall approve selection of CONTRACTOR's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONTRACTOR.
19. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY
INSURANCE
Pursuant to California Labor Code Section 1861, CONTRACTOR acknowledges awareness of Section 3700 et seg. of this Code, which requires every employer to be insured SF:16-5215-142605.doc/rev 12/2016 14
against liability for workers' compensation; CONTRACTOR covenants that it will comply with such provisions prior to commencing performance of the work hereunder.
CONTRACTOR shall maintain workers' compensation and employer's liability insurance in an amount of not less than the State statutory limits.
CONTRACTOR shall require all subcontractors to provide such workers compensation and employer's liability insurance for all of the subcontractors' employees.
CONTRACTOR shall furnish to CITY a certificate of waiver of subrogation under the terms of the workers compensation and employer's liability insurance and CONTRACTOR shall similarly require all subcontractors to waive subrogation.
20. INSURANCE
In addition to the workers' compensation and employer's liability insurance and CONTRACTOR's covenant to defend, hold harmless and indemnify CITY, CONTRACTOR shall obtain and furnish to CITY, a policy of general public liability insurance, including motor vehicle coverage covering the PROJECT. This policy shall indemnify CONTRACTOR, its officers, employees and agents while acting within the scope of their duties, against any and all claims arising out or in connection with the PROJECT, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000) for this PROJECT. This policy shall name CITY, its officers, elected or appointed officials, employees, agents, and volunteers as (the "Additionally Insured Parties") as Additional Insureds, and shall specifically provide that any other insurance coverage which may be SF:16-5215-142605.doc/rev 12/2016 15
applicable to the PROJECT shall be deemed excess coverage and that CONTRACTOR'S insurance shall be primary and non-contributory with any other valid and collectible insurance or self-insurance available to the Additionally Insured Parties. Any available insurance proceeds in excess of the minimum coverage amount specified herein shall be available to the Additionally Insured Parties. All coverage available to CONTRACTOR shall also be available to the Additionally Insured Parties. Under no circumstances shall said above-mentioned insurance contain a self-insured retention without the express written consent of CITY; however, an insurance policy "deductible" of $5,000.00 is permitted.
CONTRACTOR shall be responsible for causing all Subcontractors to maintain the same types and limits of insurance coverage as that required of CONTRACTOR by this Agreement.
21. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED
ENDORSEMENTS
Prior to commencing performance of the work hereunder, CONTRACTOR shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; the certificates shall:
provide the name and policy number of each carrier and policy;
2. state that the policy is currently in force; and
3. promise to provide that such policies will not be canceled or modified without thirty (30) days' prior written notice of CITY.
CONTRACTOR shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by CITY.
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The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of CITY by CONTRACTOR under the Agreement.
CITY or its representative shall at all times have the right to demand the original or a copy of all the policies of insurance. CONTRACTOR shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required.
CONTRACTOR shall provide a separate copy of the additional insured endorsement to each of CONTRACTOR's insurance policies, naming CITY, its officers, elected and appointed officials, employees, agents and volunteers as Additional Insureds, to the City Attorney for approval prior to any payment hereunder.
22. PAYROLL RECORDS
CONTRACTOR agrees to keep accurate payroll record showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice or worker employed by it in connection with the PROJECT and agrees to require each of its subcontractors to do the same. CONTRACTOR further agrees that its payroll records and those of its subcontractors, if any, shall be available at all reasonable times to the CITY, and the employee or his representative, and the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards, and to comply with all of the provisions of California Labor Code Section 1776, in general.
23. CALIFORNIA PREVAILING WAGE LAW AND FEDERAL DAVIS-
BACON ACT.
A. The CITY has ascertained from the Director of Industrial Relations of the State of California the general prevailing rate of per diem wages and the general prevailing rate SF:16-5215-142605. doc/rev 12/2016 17
for legal holiday and overtime work in the locality in which the work is to be performed for each craft or type of work needed to execute this Agreement, and the same has been set forth by resolution on file in the office of the City Clerk of CITY. CONTRACTOR and any subcontractor under it shall pay not less than said prevailing wage rates to all workers employed on this public works Agreement, as required by California Labor Code Sections 1771 and 1774.
In accordance with the provisions of Section 3700 of the California Labor Code, CONTRACTOR agrees to secure payment of compensation to every employee.
B. Pursuant to this Agreement and in accordance with Section 1774 and 1775 of the California Labor Code, CONTRACTOR shall, as penalty to CITY, forfeit twenty-five dollars ($25) for each calendar day or portion thereof for each worker paid (either by CONTRACTOR or any of its subcontractors) less than the prevailing wage rate established for that particular craft or type of work.
C. This Agreement also is subject to the Federal Davis-Bacon Act. The minimum rate of wages for each craft or type of worker needed to execute the PROJECT shall be those as determined by the United States Secretary of Labor. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the general prevailing wage rates determined by the Director of the California Department of Industrial Relations for similar classifications of labor, CONTRACTOR and subcontractors shall pay not less than the higher wage rate.
24. CALIFORNIA EIGHT-HOUR LAW
A. California Labor Code, Sections 1810 et seq, shall apply to the performance of this Agreement; thereunder, not more than eight (8) hours shall constitute one day's work and CONTRACTOR and each subcontractor employed by its hereunder, shall not SF:16-5215-142605.doc/rev 12/2016 18
require more than eight (8) hours of labor per day or forty (40) hours per week from any one person employed by it hereunder, except as stipulated in California Labor Code Section 1815.
CONTRACTOR and each subcontractor employed by it hereunder shall, in accordance with California Labor Code Section 1812, keep an accurate record, open to inspection at all reasonable hours, showing the name and actual hours worked each calendar day and each calendar week by each worker employed in connection with the PROJECT.
B. Pursuant to this Agreement and in accordance with California Labor Code Section 1813, CONTRACTOR shall, as a penalty to CITY, forfeit twenty-five dollars ($25) for each worker employed hereunder by CONTRACTOR or any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one (I) calendar day or forty (40) hours in any one (1) calendar week in violation of California Labor Code Section 1815.
25. PAYMENT OF TRAVEL AND SUBSISTENCE ALLOWANCE
Section 1773.8 of the California Labor Code, regarding the payment of travel and subsistence allowance is applicable to this PROJECT.
26. EMPLOYMENT OF APPRENTICES
Section 1777.5 of the California Labor Code, regarding the employment of apprentices is applicable to this PROJECT.
27. EQUAL EMPLOYMENT OPPORTUNITY
During the performance of this Agreement, CONTRACTOR agrees as follows:
A. CONTRACTOR will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. CONTRACTOR will take affirmative action to ensure that applicants are SF:16-5215-142605.doc/rev 12/2016 19
employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. CONTRACTOR agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
B. CONTRACTOR will, in all solicitations or advertisements for employees placed by or on behalf of CONTRACTOR, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
C. CONTRACTOR will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with CONTRACTOR's legal duty to furnish information.
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D. CONTRACTOR will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of CONTRACTOR's commitments under Section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
E. CONTRACTOR will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the United States Secretary of Labor. A copy of Executive Order 11246, as amended, is attached as Exhibit C.
F. CONTRACTOR will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
G. event of CONTRACTOR's non-compliance with the
nondiscrimination 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 CONTRACTOR may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
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H. CONTRACTOR will include the provisions of sub-paragraphs A through G in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each sub-contractor or vendor.
CONTRACTOR will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event CONTRACTOR becomes involved in, or is threatened with, litigation with a sub-contractor or vendor as a result of such direction, CONTRACTOR may request the United States to enter into such litigation to protect the interests of the United States.
28. RECORD RETENTION
Financial records, supporting documents, statistical records, and all other CONTRACTOR records pertinent shall be retained for a period of three years from the date of the City filing the Notice of Completion of the PROJECT. The only exceptions are the following:
A. If any litigation, claim, or audit is started before the expiration of the 3- year period, the records must be retained until all litigation, claims, or audit findings involving the records have been resolved and final action taken.
B. When the non-Federal entity is notified in writing by the Federal awarding agency, cognizant agency for audit, oversight agency for audit, cognizant agency for indirect costs, or pass-through entity to extend the retention period C. Records for real property and equipment acquired with Federal funds must be retained for 3 years after final disposition.
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D. When records are transferred to or maintained by the Federal awarding agency or pass-through entity, the 3-year retention requirement is not applicable to the non- Federal entity.
E. Records for program income transactions after the period of performance.
In some cases recipients must report program income after the period of performance. Where there is such a requirement, the retention period for the records pertaining to the earning of the program income starts from the end of the non-Federal entity's fiscal year in which the program income is earned.
F. Indirect cost rate proposals and cost allocations plans. This paragraph applies to the following types of documents and their supporting records: indirect cost rate computations or proposals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage chargeback rates or composite fringe benefit rates).
(1) submitted for negotiation. If the proposal, plan, or other computation is required to be submitted to the Federal government (or to the pass- through entity to form the basis for negotiation of the rate, then the 3-year retention period for its supporting records starts from the date of such submission. (2) If not submitted for negotiation. If the proposal, plan, or other computation is not required to be submitted to the Federal government (or to the pass- through entity for negotiation purposes, then the 3-year retention period for the proposal, plan, or computation and its supporting records starts from the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation.
SF:16-5215-142605.doc/rev 12/2016 23
29. NOTICE OF THIRD-PARTY CLAIM
Pursuant to Public Contracts Code Section 9202, CITY shall provide notice to CONTRACTOR of receipt of any claim filed with CITY or a court of competent jurisdiction which arises out of performance of this agreement within ten (10) days of receipt of such claim or claims.
30. DEFAULT AND TERMINATION
If CONTRACTOR fails or refuses to prosecute the work hereunder with diligence, or fails to complete the work within the time specified, or is adjudged bankrupt or makes an assignment for the benefit of creditors or becomes insolvent, or violates any provision of this Agreement or the Contract Documents, CITY may give CONTRACTOR notice in writing of its intention to terminate this Agreement. Unless the violation is cured within ten (10) days after such Notice of Intention has been served on CONTRACTOR, CITY may, without prejudice to any other remedy it may have, terminate this Agreement upon the expiration of that time.
Upon such default by CONTRACTOR, CITY may elect not to terminate this Agreement; in such event CITY may make good the deficiency in which the default consists and deduct the resulting costs from the progress payments then or to become due to CONTRACTOR.
If it is subsequently determined by a court of competent jurisdiction that CITY's termination of this Agreement under this Section was wrongful, such termination shall be converted to a termination for convenience under Section 29 and any damages shall be assessed as set forth in Section 29.
31. TERMINATION FOR CONVENIENCE
CITY may terminate this Agreement for convenience at any time with or without cause, and whether or not PROJECT is fully complete upon seven (7) calendar days written SP:16-5215-142605.doc/rev 12/2016 24
notice to CONTRACTOR. In the event of termination, under this Section CITY shall pay CONTRACTOR for value of work in place on the PROJECT through the termination period less all such payments already made. In case of such termination for convenience, CONTRACTOR shall be entitled to receive payment for work executed, and costs incurred by reason of such termination. In no event shall CONTRACTOR be entitled to recover overhead, profit or CONTRACTOR's fee on work not performed. Such payment by CITY shall be CONTRACTOR's sole and exclusive remedy for termination by CITY for its convenience and CITY shall have no further obligation to CONTRACTOR.
32. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONTRACTOR agrees that upon completion of the work to be performed hereunder, or upon expiration or earlier termination of this Agreement, all original plans, specifications, drawings, reports, calculations, maps and other documents pertaining to this Agreement shall be delivered to CITY and become its sole property at no further cost.
33. NONASSIGNABILITY
CONTRACTOR shall not sell, assign, transfer, convey or encumber this Agreement, or any part hereof, or any right or duty created herein, without the prior written consent of CITY and the surety.
34. CITY EMPLOYEES AND OFFICIALS
CONTRACTOR shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the California Government Code.
SP:16-5215-142605. doc/rev 12/2016 25
35. STOP NOTICES; RECOVERY OF ADMINISTRATIVE COSTS
CITY shall be entitled to all reasonable administrative costs and necessary disbursements arising out of the processing of Stop Notices, Notices to Withhold, or any similar legal document. This obligation shall be provided for in the labor and materials payment bond required of CONTRACTOR. CITY may charge an administrative fee of One Hundred Dollars ($100) for every Stop Notice filed in excess of two (2), regardless of whether or not CITY is named in an action to enforce such stop notices. CITY may set off any unreimbursed cost or expense so incurred against any sum or sums owed by CITY to CONTRACTOR under this Agreement.
36. NOTICES
Any notices, certificates, or other communications hereunder shall be given either by personal delivery to CONTRACTOR's agent (as designated in Section 1 hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below; provided that CITY and CONTRACTOR, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent:
• TO CITY: TO CONTRACTOR:
City of Huntington Beach
Nobest Inc.
ATTN: Max Olin _ Public Works
ATTN: Mickey Lewis
2000 Main Street
P.O. Box 874
Huntington Beach, CA 92648
Westminster, California 92684-5583
SF:16-5215-142605.doc/rev 12/2016 26
37. SECTION HEADINGS
The titles, captions, section, paragraph, and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of maters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement.
38. IMMIGRATION
CONTRACTOR shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the Immigration Reform and Control Act of 1978 (8 US Section 1324a) regarding employment verification.
39. LEGAL SERVICES SUBCONTRACTING PROHIBITED
CONTRACTOR and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONTRACTOR understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONTRACTOR.
40. ATTORNEY'S FEES
In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall SF:16-5215-142605.doc/rev 12/2016 27
bear its own attorney's fees and the prevailing party shall not be entitled to recover its attorney's fees from the nonprevailing party.
41. INTERPRETATION OF THIS AGREEMENT
The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law.
42. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the State of California.
43. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of SF:16-5215-142605.doc/rev 12/2016 28
the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it.
44. CONSENT
Where CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be consent/approval to any subsequent occurrence of the same or any other transaction or event.
45. SIGNATORIES
Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
46. ENTIRETY
The foregoing, and Exhibits "A" and "B" attached hereto, set forth the entire Agreement between the parties. No waiver or modification of this Agreement shall be valid unless in writing duly executed by both parties.
The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiations, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement.
SF:16-5215-142605.doc/rev 12/2016 29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers on Janwar Z0 1 20260 CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of California
Mayor
ITS: Chairman President Vice-President City Clerk
(circle one)
INITIATED AND APPROVED:
on Palat Mallad I
Director of Public Works
Robert Madland I
(print name) REVIEWED AND APPROVED:
ITS Secretary Chief Financial Officer / Asst.
Secretary / Treasurer
(circle one) City Manager
APRONE AS TO FORM:
City Attorney
SE:16-5215-142605 doc/rev 12/2016 30
EXHIBIT A
(Contractor's Proposal)
SF:16-5215-142605.doc/rev 12/2016 31
EXHIBIT B
(Form HUD-4010, the Federal Labor Standards Provision of the United States) Federal Labor Standards Provisions U.S. Department of Housing and Urban Development
Office of Labor Relations
Applicability (1) The work to be performed by the classification The Project or Program to which the construction work requested is not performed by a classification in the wage covered by this contract pertains is being assisted by the determination; and United States of America and the following Federal Labor (2) The classification is utilized in the area by the Standards Provisions are included in construction industry; and pursuant to the provisions applicable to such Federal (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the . 1. (I) Minimum Wages. All laborers and mechanic wage rates contained in the wage determination. mployed or working upon the site of the work, will be pai (b) If the contractor and the laborers and mechanics to be unconditionally and not less often than once a week, and employed in the classification (if known), or their without subsequent deduction or rebate on any account representatives, and HUD or its designee agree on the such payroll deductions as are permitted classification and wage rate including the amount regulations issued by the Secretary of Labor under the designated for fringe benefits where appropriate), a report Copeland Act (29 CFR Part 3), the full amount of wages of the action taken shall be sent by HUD or its designee to and bona fide fringe benefits (or cash equivalents thereof) the Administrator of the Wage and Hour Division, due at time of payment computed at rates not less than Employment Standards Administration, U.S. Department of Labor, Washington, D.C. 20210. The Administrator, or an Secretary of Labor which is attached hereto and made a authorized representative, will approve, modify, part hereof, regardless of any contractual relationship disapprove every additional classification action within 30 which may be alleged to exist between the contractor and days of receipt and so advise HUD or its designee or will such laborers and mechanics. Contributions made or notify HUD or its designee within the 30-day period that costs reasonably anticipated for bona fide fringe benefits under Section I(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 (c) In the event the contractor, the laborers or mechanics
5.5(a)(1)(iv); also, regular contributions made or costs classification or their
incurred for more than a weekly period (but not less often representatives, and HUD or its designee do not agree on than quarterly) under plans, funds, or programs, which
the proposed classification and wage rate (including the cover the particular weekly period, are deemed to be
constructively made or incurred during such weekly period. amount designated for fringe benefits, where appropriate), HUD or its designee shall refer the questions, including Such laborers and mechanics shall be paid the appropriate the views of all interested parties and the recommendation wage rate and fringe benefits on the wage determination of HUD or its designee, to the Administrator for for the classification of work actually performed, without determination. The Administrator, or an authorized regard to skill, except as provided in 29 CFR 5.5(a)(4). representative, will issue a determination within 30 days of Laborers or mechanics performing work in more than one receipt and so advise HUD or its designee or will notify classification may be compensated at the rate specified for HUD or its designee within the 30-day period that each classification for the time actually worked therein: additional time is necessary. (Approved by the Office of Provided, That the employer's payroll records accurately Management and Budget under OMB Control Number set forth the time spent in each classification in which 1215-0140.) work is performed. The wage determination (including any (d) The wage rate (including fringe benefits where
additional classification and wage rates conformed under appropriate determined pursuant to subparagraphs
29 CFR 5.5(a)(1)(ii) and the Davis-Bacon poster (WH
(1)(ii) (b) o (c) of this paragraph, shall be paid to all 1321) shall be posted at all times by the contractor and its workers performing work in the classification under this subcontractors at the site of the work in a prominent and contract from the first day on which work is performed in accessible, place where it can be easily seen by the
the classification.
workers.
(iil) Whenever the minimum wage rate prescribed in the
(ii) (a) Any class of laborers or mechanics which is not listed in the wage determination and which is to contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the employed under the contract shall be classified in
contractor shall either pay the benefit as stated in the conformance with the wage determination. HUD shall
approve an additional classification and wage rate anc wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
fringe ben its therefor only when the following criterie (iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part form HUD-4010 (06/2009)
Previous editions are obsolete Page 1 of 5 ref. Handbook 1344.1 SF:16-5215-142605.doc/rev 12/2016 32
of the wages of any laborer or mechanic the amount of any communicated in writing to the laborers or mechanics costs reasonably anticipated in providing bona fide fringe affected, and records which show the costs anticipated or benefits under a plan or program, Provided, That the the actual cost incurred in providing such benefits.
Secretary of Labor has found, upon the written request of Contractors employing apprentices trainees under the contractor, that the applicable standards of the Davis- approved programs shall maintain written evidence of the Bacon Act have been met. The Secretary of Labor may registration of apprenticeship programs and certification of require the contractor to set aside in a separate account trainee programs, the registration of the apprentices and assets for the meeting of obligations under the plan or trainees, and the ratios and wage rates prescribed in the program. (Approved by the Office of Management and applicable programs. (Approved by the Office of Budget under OMB Control Number 1215-0140.) Management and Budget under OMB Control Numbers
2. Withholding. HUD or its designee shall upon its own
action upon (il) (a) The contractor shall submit weekly for each week representative of the Department of Labor withhold or in which any contract work is performed a copy cause to be withheld from the payrolls to HUD or its designee if the agency is a party to contract or any other Federal contract with the same prime the contract, but if the agency is not such a party, the contractor, or the payrolls to
subject to Davis-Bacon sponsor, or owner, as the case may be, for transmission to which is held by the same prime contractor so much of the HUD or its designee. The payrolls submitted shall set out accrued payments or advances as may be considered accurately and completely all of the information required necessary to pay to be maintained under 29 CFR 5.5(a)(3)(i) except that full apprentices, trainees social security numbers and home addresses shall not be contractor or any subcontractor the full amount of wages included on weekly transmittals. Instead the payrolls shall required by the contract In the event of failure to pay any only need to include an individually identifying number for laborer or mechanic, including any apprentice, trainee or each employee (e.g., the last four digits of the employee's heiper, employed or working on the site of the work, all or part of the wages required by the contract, HUD or its information may be submitted in any form designee may. Optional Form WH-347 is available for this purpose from sponsor, applicant, or owner, take such action as may be necessary to http://www.dol.gov/esa/whd/forms/wh347instr.htm payment, advance, The prime contractor is responsible for violations have ceased. the submission of copies of payrolls by all subcontractors. written notice to the contractor, disburse such amounts Contractors and subcontractors shall maintain the full withheld for social security number and current address of subcantractor to the respective employees to whom they covered worker, and shall provide them upon request to are due. HUD or its designee if the agency is a party to the disbursements in the contract, but if the agency is not such a party, the contracts. contractor will submit the payrolls to the applicant sponsor, or owner, as the case may be, for transmission to
3. (i) Payrolls and basic records. HUD or its designee, the contractor, or the Wage and Hour records Division of the Department of Labor for purposes of an contractor during the course of the work preserved for a investigation or audit of compliance with prevailing wage period of three all laborers and
It is not a violation of this subparagraph for
mechanics working at the site of the work.
a prime contractor to require a subcontractor to provide shall contain the
addresses and social security numbers to the prime
number
contractor for its own records, without weekly submission 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 Management and Budget under OMB Control Number in Section |(by2)B) of the Davis-bacon Act), daily and
weekly number of hours worked, deductions made and Each payroll submitted shall be accompanied by actual wages paid Whenever the Secretary of Labor has Statement of Compliance," signed by the contractor or found under 29 CFR 5.5 (a)(1)(iv) that the wages of any subcontractor or his or her agent who pays or supervises laborer or mechanic include the amount of any costs the payment of the persons employed under the contract reasonably anticipated in providing benefits under a plan and shall certify the following:
or program described in Section I(b)(2)(B) of the Davis- (1) That the payroll for the payroll period contains the Bacon Act, the contractor shall maintain records which information required to be provided under 29 CFR 5.5 show that the commitment to provide (a)(3)(ii), the appropriate information is being maintained enforceable, under 29 CFR 5.5(a)(3)(I), and that such information is responsible, and the plan or program has correct and complete:
form HUD-4010 (06/2009)
SP:16-5215-142605.doc/rev 12/2016 33
(2) That each laborer or mechanic (including each helper, is not registered or otherwise employed as stated above, apprentice, and trainee) employed on the contract during shall be paid not less than the applicable wage rate on the the payroll period has been paid the full weekly wages wage determination for the classification of work actually earned, without rebate, either directly or indirectly, and performed. In addition, any apprentice performing work on that no deductions have been made either directly or the job site in excess of the ratio permitted under the indirectly from wages earned, other than registered program shall be paid not less than the
permissible deductions as set forth in 29 CFR Part 3; applicable wage rate on the wage determination for the (3) That each laborer or mechanic has been paid not less work actually performed. Where a contractor is performing than the applicable wage rates and fringe benefits or cash construction on a praject in a locality other than that in equivalents for the classification of work performed, which its program is registered, the ratios and wage rates specified applicable determination (expressed in percentages of the journeyman's hourly incorporated into the contract. rate specified contractor's or subcontractor's (c) The weekly submission registered program shall be observed. Every apprentice of a property executed
certification set forth on the reverse side of Optional Form must be paid at not less than the rate specified in the WH-347 shall satisfy the requirement for submission of the registered program for the apprentice's level of progress, "Statement of Compliance" required expressed as a percentage of the journeymen hourly rate by subparagraph
specified in the applicable wage determination.
A.3. (li) (b).
Apprentices shall be paid fringe benefits in accordance (d) The falsification of any of the above certifications may with the provisions of the apprenticeship program. If the subject the contractor or subcontractor to civil or criminal apprenticeship program does not specify fringe benefits, prosecution under Section 1001 of Title 18 and Section apprentices must be paid the full amount of fringe benefits 231 of Title 31 of the United States Code. listed on the wage determination for the applicable
The contractor or subcontractor classification. if the Administrator determines that a records required under subparagraph A.3.(i) available for different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that representatives of HUD or its designee or the Department determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State
interview employees during working hours on the job. Apprenticeship Agency recognized by the Office, the contractor or subcontractor fails to submit the required withdraws approval of an apprenticeship program, the records or to make them available, HUD or its designee contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate applicant or owner, take such action as may be necessary for the work performed until an acceptable program is to cause the suspension of arly further payment, advance, approved.
Furthermore, failure to submit the (ii) Trainees. Except as provided in 29 FR 5.16, required records upon request or to make such records trainees will not be permitted to work at less than the available may be grounds for debarment action pursuant to predetermined rate for the work performed unless they are employed pursuant ',to and individually registered in a
4. Apprentices and Trainees. program which has received prior approval, evidenced by (i) Apprentices. Apprentices will be permitted to work at formal certification by the U.S. Department of Labor, less than the predetermined Employment and Training Administration. The ratio of performed when they are pursuant to and trainees to journeymen on the job site shall not be greater Individually registered in a bona than permitted under the plan approved by the apprenticeship
program registered with the U.S. Department of Labor, Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the Apprenticeship Training, Employer and Labor Services, or approved program for the trainee's level of progress, with a State Apprenticeship Agency recognized by the expressed as a percentage of the journeyman hourly rate Office, or if a person is employed in his or her first 90 specified in the applicable wage determination. Trainees days of probationary employment as an apprentice in such shall be paid fringe benefits in accordance with the an apprenticeship program, not individually provisions of the trainee program. If the trainee program registered in the program, but who has been certified by does not mention fringe benefits, trainees shall be paid the Office of Apprenticeship Training, Employer and Labor the full amount of fringe benefits listed on the wage State Apprenticeship Agency (where determination unless the Administrator of the Wage and appropriate) to be eligible for probationary employment as Hour Division determines that there is an apprenticeship The allowable ratio of apprentices to program associated with the corresponding journeyman journeymen on the job site in any craft classification shall wage rate on the wage determination which provides for not be greater than the ratio permitted to the contractor as less than full fringe benefits for apprentices. Any to the entire work force under the registered program. Any employee listed on the payroll at a trainee rate who is not worker listed on a payroll at an apprentice wage rate, who registered and participating in a training plan approved by Previous editions are obsolete for HUD-4010 (06/2009)
SF:16-5215-142605.doc/rev 12/2016 34
the Employment and Training Administration shall be paid awarded HUD contracts or participate in HUD programs not less than the applicable wage rate on the wage pursuant to 24. CFR Part 24. determination for the work actually performed. In addition, (ii) No part of this contract shall be subcontracted to any any trainee performing work on the job site in excess of person or firm ineligible for award of a Government the ratio permitted under the registered program shall be contract by virtue of Section 3(a) of the Davis-Bacon Act paid not less than the applicable wage rate on the wage or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or determination for the work actually performed. In the participate in HUD programs pursuant to 24 CFR Part 24. event the Employment and Training Administration
withdraws approval of a training program, the contractor (iii) The penalty for making false statements is prescribed will no longer be permitted to utilize trainees at less than In the U.S. Criminal Code, 18 U.S.C. 1001. Additionally, the applicable predetermined rate for the work performed U.S. Criminal Code, Section 1 01 0, Title 18, U.S.C., until an acceptable program is approved. "Federal Housing Administration transactions", provides in part: *Whoever, for the purpose of... influencing in any (ill) Equal employment opportunity. The utilization of
way the action of such Administration..... makes, utters or apprentices, trainees and journeymen under 29 CFR Part 5 publishes any statement knowing the same to be false..... shall be in conformity with the equal employment
shall be fined not more than $5,000 or imprisoned not
opportunity requirements of Executive Order 11246, as more than two years, or both." amended, and 29 CFR Part 30.
11. Complaints, Proceedings, or Testimony by
5. Compliance with Copeland Act requirements.
Employees. No laborer or mechanic to whom the wage,
contractor shall comply with the requirements of 29 CFR salary, or other labor standards provisions of this Contract Part 3 which are incorporated by reference in this contract are applicable shall be discharged or in any other manner
6. Subcontracts. The contractor or subcontractor will discriminated against by the Contractor or any
insert in any subcontracts the clauses contained subcontractor because such employee has filed any subparagraphs 1 through 11 in this paragraph A and such complaint or instituted or caused to be instituted any other clauses as HUD or its designee may by appropriate proceeding or has testified or is about to testify in any instructions proceeding under or relating to the labor standards prevailing wage decision, and also a clause requiring the applicable under this Contract to his employer. subcontractors to include these clauses in any lower tier B. Contract Work Hours and Safety Standards Act.
The
subcontracts. The prime contractor shall be responsible provisions of this paragraph B are applicable where the amount of the for the compliance by any subcontractor or lower tier prime contract exceeds $100,000.
As used in this paragraph, the
subcontractor with all the contract clauses this
terms "laborers" and "mechanics" include watchmen and guards. paragraph.
(1) Overtime requirements. No contractor or subcontractor
7. Contract termination; debarment. A breach of the contracting for any part of the contract work which may require or contract clauses in 29 CFR 5.5 may be grounds for
involve the employment of laborers or mechanics shall require or termination of the contract and for debarment as
permit any such laborer or mechanic in any workweek in which the contractor and a subcontractor as provided in 29 CFR Individual is employed on such work to work in excess of 40 hours in
5.12 such workweek unless such laborer or mechanic receives
8. Compliance with Davis-Bacon and Related Act Requirements. compensation at a rate not less than one and one-half times the basic All rulings and interpretations of the Davis-Bacon and. rate of pay for all hours worked in excess of 40 hours in such Related Acts contained in 29 CFR Parts 1, 3, and 5 are workweek. herein incorporated by reference in this contract Violation; liability for unpaid wages; liquidated
9. Disputes concerning labor standards. Disputes damages. In the event of any violation of the clause set arising out of the labor standards provisions of this forth in subparagraph (1) of this paragraph, the contractor contract shall not be subject to the general disputes and any subcontractor responsible therefor shall be liable clause of this contract. Such disputes shall be resolved in In addition, such contractor and accordance with the procedures of the Department of
Labor set forth in 29 CFR Parts 5, 6, and 7.
employees or their representatives.
25222
awarded Government contracts by virtue of Section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1) or to be
Previous editions are obsolete for HUD-4010 (06/2009)
SF:16-5215-142605.doc/rev 12/2016 35
(3) Withholding unpaid wages 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 contractor or subcontractor under any such contract or any other Federal contract with the same prime contract, other Federally-assisted contract subject to the
Contract Work Hours and Safety Standards Act which is
held by the same prime contractor such sums as may be
determined to be necessary to satisfy
such contractor or subcontractor for
liquidated damages as provided in the clause set forth in subparagraph (2) of this paragraph.
(4) Subcontracts. The contractor 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 include these
• clauses in any lower tier The prime
contractor shall be responsible for compliance by any
subcontractor 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 where the amount of the prime contract exceeds $100,000. (f) No laborer or mechanic shall be required to work in surroundings
unsanitary, hazardous, or dangerous to his health and
safety as determined under construction safety and health standards promulgated by the
regulation.
contractor shall comply with all regulation:
ssued by the Secretary of Labor pursuant to Title 29 Par 1926 and failure to comply may result in imposition of
sanctions pursuant to the Contract Work Hours and Safety Standards Act, (Public Law 91-54, 83 Stat 96). 40 USC
3701 et seq.
(3) The contractor shall include the provisions of this paragraph in every subcontract so that such provisions will be binding on each subcontractor. The contractor shall
take such action with respect to any subcontractor as the Secretary Development or the
Secretary of Labor shall direct as a means of enforcing Previous editions are obsolete form HUD-4010 (06/2009)
SF:16-5215-142605.doc/rev 12/2016 36
EXHIBIT C
United States Department of Labor
Office of Federal Contract Compliance Programs
Office of Federal Contract Compliance Programs (OFCCP)
Executive Order 11246, As Amended
- DISCLAIMER -
Executive Order 11246 - Equal Employment Opportunity
SOURCE: The provisions of Executive Order 11246 of Sept. 24, 1965, appear at 30 FR 12319, 12935, 3 CFR, 1964- 1965 Comp., p.339, unless otherwise noted.
Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows:
Part I - Nondiscrimination in Government Employment
[Part I superseded by EO 11478 of Aug. 8, 1969, 34 FR 12985, 3 CFR, 1966-1970 Comp., p. 803] Part II - Nondiscrimination in Employment by Government Contractors and Subcontractors
Subpart A - Duties of the Secretary of Labor
SEC. 201
The Secretary of Labor shall be responsible for the administration and enforcement of Parts IT and III of this Order. The Secretary shall adopt such rules and regulations and issue such orders as are deemed necessary and appropriate to achieve the purposes of Parts II and III of this Order. [Sec. 201 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Subpart B - Contractors' Agreements
SEC. 202
Except in contracts exempted in accordance with Section 204 of this Order, all Government contracting agencies shall indude in every Government contract hereafter entered into the following provisions:
During the performance of this contract, the contractor agrees as follows:
1. The contractor will not discriminate against any empioyee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
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2. The contractor will, in all solicitations or advancements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
3. The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
4. The contractor 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 agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
5. The contractor will comply with all provisions of Executive Order No. 11246 of Sept. 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
6. The contractor will fumish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
7. In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No. 11246 of Sept. 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
8. The contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States. [Sec. 202 amended by EO 11375 of Oct. 13, 1967, 32 FR 14303, 3 CFR, 1966-1970 Comp., p. 684, EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230, EO 13665 of April 8, 2014, 79 FR 20749, EO 13672 of July 21, 2014, 79 SEC. 203
a. Each contractor having a contract containing the provisions prescribed in Section 202 shall file, and shall cause each of his subcontractors to file, Compliance Reports with the contracting agency or the Secretary of Labor as b. Bidders or prospective contractors or subcontractors may be required to state whether they have participated in any previous contract subject to the provisions of this Order, or any preceding similar Executive order, and in SF:16-5215-142605.doc/rev 12/2016 38
that event to submit, on behalf of themselves and their proposed subcontractors, Compliance Reports prior to or as an initial part of their bid or negotiation of a contract. c. Whenever the contractor or subcontractor has a collective bargaining agreement or other contract or understanding with a labor union or an agency referring workers or providing or supervising apprenticeship or training for such workers, the Compliance Report shall include such information as to such labor union's or agency's practices and policies affecting compliance as the Secretary of Labor may prescribe: Provided, that to the extent such information is within the exclusive possession of a labor union or an agency referring workers or providing or supervising apprenticeship or training and such labor union or agency shall refuse to furnish such information to the contractor, the contractor shall so certify to the Secretary of Labor as part of its Compliance d. The Secretary of Labor may direct that any bidder or prospective contractor or subcontractor shall submit, as part of his Compliance Report, a statement in writing, signed by an authorized officer or agent on behalf of any labor union or any agency referring workers or providing or supervising apprenticeship or other training, with which the bidder or prospective contractor deals, with supporting information, to the effect that the signer's practices and policies do not discriminate on the grounds of race, color, religion, sex, sexual orientation, gender identity, or national origin, and that the signer either will affirmatively cooperate in the implementation of the policy and provisions of this Order or that it consents and agrees that recruitment, employment, and the terms and conditions of employment under the proposed contract shall be in accordance with the purposes and provisions of the order. In the event that the union, or the agency shall refuse to execute such a statement, the Compliance Report shall so certify and set forth what efforts have been made to secure such a statement and such additional factual material as the Secretary of Labor may require. [Sec. 203 amended by EO 11375 of Oct. 13, 1967, 32 FR 14303, 3 CFR, 1966-1970 Comp., p. 684; EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230, EO 13672 of July 21, 2104, 79 FR 42971] SEC. 204
a. The Secretary of Labor may, when the Secretary deems that special circumstances in the national interest so require, exempt a contracting agency from the requirement of induding any or all of the provisions of Section 202 of this Order in any specific contract, subcontract, or purchase order. b. The Secretary of Labor may, by rule or regulation, exempt certain classes of contracts, subcontracts, or purchase orders (1) whenever work is to be or has been performed outside the United States and no recruitment of workers within the limits of the United States is involved; (2) for standard commercial supplies or raw materials; (3) involving less than specified amounts of money or specified numbers of workers; or (4) to the extent that they involve subcontracts below a specified tier. c. Section 202 of this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities, Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order. d. The Secretary of Labor may also provide, by rule, regulation, or order, for the exemption of facilities of a contractor that are in all respects separate and distinct from activities of the contractor related to the performance of the contract: provided, that such an exemption will not interfere with or impede the effectuation of the purposes of this Order: and provided further, that in the absence of such an exemption all facilities shall be covered by the provisions of this Order.
[Sec. 204 amended by EO 13279 of Dec, 16, 2002, 67 FR 77141, 3 CFR, 2002 Comp., p. 77141 - 77144] Subpart C- Powers and Duties of the Secretary of Labor and the Contracting Agencies SF:16-5215-142605.doc/rev 12/2016 39
SEC. 205
The Secretary of Labor shall be responsible for securing compllance by all Government contractors and subcontractors with this Order and any implementing rules or regulations. All contracting agencies shall comply with the terms of this Order and any implementing rules, regulations, or orders of the Secretary of Labor. Contracting agencies shall cooperate with the Secretary of Labor and shall furnish such information and assistance as the Secretary may require. [Sec. 205 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] SEC. 206
a. The Secretary of Labor may investigate the employment practices of any Government contractor or subcontractor to determine whether or not the contractual provisions specified in Section 202 of this Order have been violated. Such investigation shall be conducted in accordance with the procedures established by the Secretary of Labor.
b. The Secretary of Labor may receive and investigate complaints by employees or prospective employees of a Government contractor or subcontractor which allege discrimination contrary to the contractual provisions specified in Section 202 of this Order.
[Sec. 206 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] SEC. 207
The Secretary of Labor shall use his/her best efforts, directly and through interested Federal, State, and local agencies, contractors, and all other avallable instrumentalities to cause any labor union engaged in work under Government contracts or any agency referring workers or providing or supervising apprenticeship or training for or in the course of such work to cooperate in the implementation of the purposes of this Order. The Secretary of Labor shall, in appropriate cases, notify the Equal Employment Opportunity Commission, the Department of Justice, or other appropriate Federal agencies whenever it has reason to believe that the practices of any such labor organization or agency violate Title VI or Title VII of the Civil Rights Act of 1964 or other provision of Federal law. [Sec. 207 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] SEC. 208
a. The Secretary of Labor, or any agency, officer, or employee in the executive branch of the Government designated by rule, regulation, or order of the Secretary, may hold such hearings, public or private, as the Secretary may deem advisable for compliance, enforcement, or educational purposes, b. The Secretary of Labor may hold, or cause to be held, hearings in accordance with Subsection of this Section prior to imposing, ordering, or recommending the imposition of penalties and sanctions under this Order. No order for debarment of any contractor from further Government contracts under Section 209(6) shall be made without affording the contractor an opportunity for a hearing.
Subpart D - Sanctions and Penalties
SEC. 209
In accordance with such rules, regulations, or orders as the Secretary of Labor may issue or adopt, the Secretary may:
1. Publish, or cause to be published, the names of contractors or unions which it has conduded have complied or have failed to comply with the provisions of this Order or of the rules, regulations, and orders of the Secretary
2. Recommend to the Department of Justice that, in cases in which there is substantial or material violation or the threat of substantial or material violation of the contractual provisions set forth in Section 202 of this Order, appropriate proceedings be brought to enforce those provisions, including the enjoining, within the limitations SF:16-5215-142605.doc/rev 12/2016 40
of applicable law, of organizations, individuals, or groups who prevent directly or indirectly, or seek to prevent directly or indirectly, compliance with the provisions of this Order.
3. Recommend to the Equal Employment Opportunity Commission or the Department of Justice that appropriate proceedings be instituted under Title VII of the Civil Rights Act of 1964.
7. Recommend to the Department of Justice that criminal proceedings be brought for the furnishing of false nformation to any contracting agency or to the Secretary of Labor as the case may be
5. After consulting with the contracting agency, direct the contracting agency to cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contractor or subcontractor to comply with equal employment opportunity provisions of the contract.
Contracts may be cancelled, terminated, or suspended absolutely or continuance of contracts may be conditioned upon a program for future compliance approved by the Secretary of Labor.
6. Provide that any contracting agency shall refrain from entering into further contracts, or extensions or other odifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied th ecretary of Labor that such contractor has established and will carry out personnel and employment policies compliance with the provisions of this Order.
(b) Pursuant to rules and regulations prescribed by the Secretary of Labor, the Secretary shall make reasonable efforts, within a reasonable time limitation, to secure compliance with the contract provisions of this Order by methods of conference, conciliation, mediation, and persuasion before proceedings shall be instituted under subsection (a)(2) of this Section, or before a contract shall be cancelled or terminated in whole or in part under subsection (a)(5) of this Section [Sec. 209 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Camp., p. 230] SEC. 210
Whenever the Secretary of Labor makes a determination under Section 209, the Secretary shall promptly notify the appropriate agency. The agency shall take the action directed by the Secretary and shall report the results of the action it has taken to the Secretary of Labor within such time as the Secretary shall specify, If the contracting agency fails to take the action directed within thirty days, the Secretary may take the action directly. [Sec. 210 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p 230] SEC. 211
If the Secretary shall so direct, contracting agencies shall not enter into contracts with any bidder or prospective contractor unless the bidder or prospective contractor has satisfactorily complied with the provisions of this Order or submits a program for compliance acceptable to the Secretary of Labor. [Sec. 211 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] SEC. 212
When a contract has been cancelled or terminated under Section 209(a)(5) or a contractor has been debarred from further Government contracts under Section 209(a)(6) of this Order, because of noncompliance with the contract provisions specified in Section 202 of this Order, the Secretary of Labor shall promptly notify the Comptroller General of the United States.
[Sec. 212 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Subpart E - Certificates of Merit
SEC. 213
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The Secretary of Labor may provide for issuance of a United States Government Certificate of Merit to employers or labor unions, or other agencies which are or may hereafter be engaged in work under Government contracts, if the Secretary is satisfied that the personnel and employment practices of the employer, or that the personnel, training, apprenticeship, membership, grievance and representation, upgrading, and other practices and policies of the labor union or other agency conform to the purposes and provisions of this Order.
SEC. 214
Any Certificate of Merit may at any time be suspended or revoked by the Secretary of Labor if the holder thereof, in the judgment of the Secretary, has failed to comply with the provisions of this Order.
SEC. 215
The Secretary of Labor may provide for the exemption of any employer, labor union, or other agency from any reporting requirements imposed under or pursuant to this Order if such employer, labor union, or other agency has been awarded a Certificate of Merit which has not been suspended or revoked.
Part III - Nondiscrimination Provisions in Federally Assisted Construction Contracts SEC. 301
Each executive department and agency, which administers a program involving Federal financial assistance shall require as a condition for the approval of any grant, contract, loan, insurance, or guarantee thereunder, which may involve a construction contract, that the applicant for Federal assistance undertake and agree to incorporate, or cause to be incorporated, into all construction contracts paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to such grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the provisions prescribed for Government contracts by Section 202 of this Order or such modification thereof, preserving in substance the contractor's obligations thereunder, as may be approved by the Secretary of Labor, together with such additional provisions as the Secretary deems appropriate to establish and protect the interest of the United States in the enforcement of those obligations. Each such applicant shall also undertake and agree (1) to assist and cooperate actively with the Secretary of Labor in obtaining the compliance of contractors and subcontractors with those contract provisions and with the rules, regulations and relevant orders of the Secretary, (2) to obtain and to furnish to the Secretary of Labor such information as the Secretary may require for the supervision of such compliance, (3) to carry out sanctions and penalties for violation of such obligations imposed upon contractors and subcontractors by the Secretary of Labor pursuant to Part II Subpart D, of this Order, and (4) to refrain from entering into any contract subject to this Order, or extension or other modification of such a contract with a contractor debarred from Government contracts under Part II, Subpart D, of this Order.
[Sec. 301 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] SEC. 302
a. "Construction contract" as used in this Order means any contract for the construction, rehabilitation, alteration, conversion, extension, or repair of buildings, highways, or other improvements to real property. b. The provisions of Part It of this Order shall apply to such construction contracts, and for purposes of such application the administering department or agency shall be considered the contracting agency referred to therein.
c. The term "applicant" as used in this Order means an applicant for Federal assistance or, as determined by agency regulation, other program participant, with respect to whom an application for any grant, contract, loan, nsurance, or guarantee is not finally acted upon prior to the effective date of this Part, and it includes such ar applicant after he/she becomes a recipient of such Federal assistance SEC. 303
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a. The Secretary of Labor shall be responsible for obtaining the compliance of such applicants with their undertakings under this Order. Each administering department and agency is directed to cooperate with the Secretary of Labor and to furnish the Secretary such information and assistance as the Secretary may require in b. In the event an applicant fails and refuses to comply with the applicant's undertakings pursuant to this Order, the Secretary of Labor may, after consulting with the administering department or agency, take any or all of the following actions: (1) direct any administering department or agency to cancel, terminate, or suspend in whole or in part the agreement, contract or other arrangement with such applicant with respect to which the failure or refusal occurred; (2) direct any administering department or agency to refrain from extending any further assistance to the applicant under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received by the Secretary of Labor from such applicant; and (3) refer the case to the Department of Justice or the Equal Employment Opportunity Commission for appropriate law enforcement or other proceedings.
c. In no case shall action be taken with respect to an applicant pursuant to clause (1) or (2) of subsection (b) without notice and opportunity for hearing.
[Sec. 303 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] SEC. 304
Any executive department or agency which imposes by rule, regulation, or order requirements of nondiscrimination in employment, ather than requirements imposed pursuant to this Order, may delegate to the Secretary of Labor by agreement such responsibilities with respect to compliance standards, reports, and procedures as would tend to bring the administration of such requirements into conformity with the administration of requirements imposed under this Order: Provided, That actions to effect compliance by recipients of Federal financial assistance with requirements imposed pursuant to Title VI of the Civil Rights Act of 1964 shall be taken in conformity with the procedures and limitations prescribed in Section 602 thereof and the regulations of the administering department or agency issued thereunder.
Part IV - Miscellaneous
SEC. 401
The Secretary of Labor may delegate to any officer, agency, or employee in the Executive branch of the Government, any function or duty of the Secretary under Parts II and Ill of this Order. [Sec. 401 amended by EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] SEC. 402
The Secretary of Labor shall provide administrative support for the execution of the program known as the "Plans for Progress."
SEC. 403
a. Executive Orders Nos. 10590 (January 19, 1955), 10722 (August 5, 1957), 10925 (March 6, 1961), 11114 (June 22, 1963), and 11162 (July 28, 1964), are hereby superseded and the President's Committee on Equal Employment Opportunity established by Executive Order No. 10925 is hereby abolished. All records and property in the custody of the Committee shall be transferred to the Office of Personnel Management and the Secretary of Labor, as appropriate.
b. Nothing in this Order shall be deemed to relieve any person of any obligation assumed or imposed under or pursuant to any Executive Order superseded by this Order. All rules, regulations, orders, instructions, designations, and other directives issued by the President's Committee on Equal Employment Opportunity and those issued by the heads of various departments or agencies under or pursuant to any of the Executive orders superseded by this Order, shall, to the extent that they are not inconsistent with this Order, remain in full force SF:16-5215-142605.doc/rev 12/2016 43
and effect unless and until revoked or superseded by appropriate authority. References in such directives to provisions of the superseded orders shall be deemed to be references to the comparable provisions of this [Sec. 403 amended by EO 12107 of Dec. 28, 1978, 44 FR 1055, 3 CFR, 1978 Comp., p, 264] SEC. 404
The General Services Administration shall take appropriate action to revise the standard Government contract forms to accord with the provisions of this Order and of the rules and regulations of the Secretary of Labor.
SEC. 405
This Order shall become effective thirty days after the date of this Order.
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