HomeMy WebLinkAboutIndependent Contractor Services Agreement with BriCon, Inc. for Fothergill Pathway ConnectionAGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES
FOTHERGILL PATHWAY CONNECTION
PROJECT # 6007-10176.6
THIS AGREEMENT F93R INDEPENDENT CONTRACTOR SERVICES is made
thisD__ day of , 2011, and entered into by and between the City of
Meridian, a municipal corporation organized under the laws of the State of Idaho,
hereinafter referred to as "CITY", 33 East Broadway Avenue, Meridian, Idaho 83642,
and BriCon, Inc , hereinafter referred to as "CONTRACTOR", whose business
address is 2345 E White Hawk, Meridian, ID 83646 and whose Public Works
Contractor License # is C -11823 -AA -3-4
INTRODUCTION
Whereas, the City has a need for services involving Fothergill Pathway
Connection PKS-11-6007-10176.b; and
WHEREAS, the Contractor is specially trained, experienced and
competent to perform and has agreed to provide such services;
NOW, THEREFORE, in consideration of the mutual promises, covenants,
terms and conditions hereinafter contained, the parties agree as follows:
TERMS AND CONDITIONS
1. Scope of Work:
1.1 CONTRACTOR shall perform and furnish to the City upon
execution of this Agreement and receipt of the City's written notice to
proceed, all services and work, and comply in all respects, as specified in
the document titled "Scope of Work" a copy of which is attached hereto as
Attachment "A" and incorporated herein by this reference, together with
any amendments that may be agreed to in writing by the parties.
1.2 All documents, drawings and written work product prepared or
produced by the Contractor under this Agreement, including without
limitation electronic data files, are the property of the Contractor; provided,
however, the City shall have the right to reproduce, publish and use all
such work, or any part thereof, in any manner and for any purposes
whatsoever and to authorize others to do so. If any such work is
copyrightable, the Contractor may copyright the same, except that, as to
any work which is copyrighted by the Contractor, the City reserves a
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royalty -free, non-exclusive, and irrevocable license to reproduce, publish
and use such work, or any part thereof, and to authorize others to do so.
1.3 The Contractor shall provide services and work under this
Agreement consistent with the requirements and standards established by
applicable federal, state and city laws, ordinances, regulations and
resolutions. The Contractor represents and warrants that it will perform its
work in accordance with generally accepted industry standards and
practices for the profession or professions that are used in performance of
this Agreement and that are in effect at the time of performance of this
Agreement. Except for that representation and any representations made
or contained in any proposal submitted by the Contractor and any reports
or opinions prepared or issued as part of the work performed by the
Contractor under this Agreement, Contractor makes no other warranties,
either express or implied, as part of this Agreement.
1.4 Services and work provided by the Contractor at the City's request
under this Agreement will be performed in a timely manner in accordance
with a Schedule of Work, which the parties hereto shall agree to. The
Schedule of Work may be revised from time to time upon mutual written
consent of the parties.
2. Consideration
2.1 The Contractor shall be compensated on a Lump Sum basis as
provided in Attachment B "Payment Schedule" attached hereto and by
reference made a part hereof for the Not -To -Exceed amount of
$10,129.00.
2.2 The Contractor shall provide the City with a monthly statement, as
the work warrants, of fees earned and costs incurred for services provided
during the billing period, which the City will pay within 30 days of receipt of
a correct invoice and approval by the City. The City will not withhold any
Federal or State income taxes or Social Security Tax from any payment
made by City to Contractor under the terms and conditions of this
Agreement. Payment of all taxes and other assessments on such sums is
the sole responsibility of Contractor.
2.3 Except as expressly provided in this Agreement, Contractor shall
not be entitled to receive from the City any additional consideration,
compensation, salary, wages, or other type of remuneration for services
rendered under this Agreement including, but not limited to, meals,
lodging, transportation, drawings, renderings or mockups. Specifically,
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Project 6007-10176.b - kw
Contractor shall not be entitled by virtue of this Agreement to
consideration in the form of overtime, health insurance benefits,
retirement benefits, paid holidays or other paid leaves of absence of any
type or kind whatsoever.
3. Term:
3.1 This agreement shall become effective upon execution by both
parties, and shall expire upon (a) completion of the agreed upon work, (b)
May 15, 2011 or (c) unless sooner terminated as provided below or unless
some other method or time of termination is listed in Attachment A.
3.2 Should Contractor default in the performance of this Agreement or
materially breach any of its provisions, City, at City's option, may
terminate this Agreement by giving written notification to Contractor.
3.3 Should City fail to pay Contractor all or any part of the
compensation set forth in Attachment B of this Agreement on the date
due, Contractor, at the Contractor's option, may terminate this Agreement
if the failure is not remedied by the City within thirty (30) days from the
date payment is due.
3.4 This Agreement shall terminate automatically on the occurrence of
any of the following events: a) Bankruptcy of insolvency of either party; b)
Sale of Contractor's business; or c) Death of Contractor
3.5 TIME FOR EXECUTING CONTRACT AND LIQUIDATED
DAMAGES
City shall issue the Notice to Proceed no later than March 15, 2011.
Upon receipt of the Notice to Proceed, the Contractor shall have 60
calendar days to complete the work as described herein. Contractor
shall be liable to the City for any delay beyond this time period in the
amount of $1,000.00 per calendar day. Such payment shall be
construed to be liquidated damages by the Contractor in lieu of any
claim or damage because of such delay and not be construed as a
penalty.
4. Termination:
4.1 If, through any cause, CONTRACTOR, its officers, employees, or
agents fails to fulfill in a timely and proper manner its obligations under
this Agreement, violates any of the covenants, agreements, or stipulations
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Project 6007-10176.b - kw
of this Agreement, falsifies any record or document required to be
prepared under this agreement, engages in fraud, dishonesty, or any
other act of misconduct in the performance of this contract, or if the City
Council determines that termination of this Agreement is in the best
interest of CITY, the CITY shall thereupon have the right to terminate this
Agreement by giving written notice to CONTRACTOR of such termination
and specifying the effective date thereof at least fifteen (15) days before
the effective date of such termination. CONTRACTOR may terminate this
agreement at any time by giving at least sixty (60) days notice to CITY.
4.2 In the event of any termination of this Agreement, all finished or
unfinished documents, data, and reports prepared by CONTRACTOR
under this Agreement shall, at the option of the CITY, become its
property, and CONTRACTOR shall be entitled to receive just and
equitable compensation for any work satisfactorily complete hereunder.
4.3 Notwithstanding the above, CONTRACTOR shall not be relieved of
liability to the CITY for damages sustained by the CITY by virtue of any
breach of this Agreement by CONTRACTOR, and the CITY may withhold
any payments to CONTRACTOR for the purposes of set-off until such
time as the exact amount of damages due the CITY from CONTRACTOR
is determined. This provision shall survive the termination of this
agreement and shall not relieve CONTRACTOR of its liability to the CITY
for damages.
5. Independent Contractor:
5.1 In all matters pertaining to this agreement, CONTRACTOR shall be
acting as an independent contractor, and neither CONTRACTOR nor any
officer, employee or agent of CONTRACTOR will be deemed an
employee of CITY. Except as expressly provided in Attachment A,
Contractor has no authority or responsibility to exercise any rights or
power vested in the City and therefore has no authority to bind or incur
any obligation on behalf of the City. The selection and designation of the
personnel of the CITY in the performance of this agreement shall be
made by the CITY.
5.2 Contractor, its agents, officers, and employees are and at all times
during the term of this Agreement shall represent and conduct themselves
as independent contractors and not as employees of the City.
5.3 Contractor shall determine the method, details and means of
performing the work and services to be provided by Contractor under this
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Project 6007-10176.b - kw
Agreement. Contractor shall be responsible to City only for the
requirements and results specified in this Agreement and, except as
expressly provided in this Agreement, shall not be subjected to City's
control with respect to the physical action or activities of Contractor in
fulfillment of this Agreement. If in the performance of this Agreement any
third persons are employed by Contractor, such persons shall be entirely
and exclusively under the direction and supervision and control of the
Contractor.
6. Indemnification and Insurance:
6.1 CONTRACTOR shall indemnify and save and hold harmless CITY
from and for any and all losses, claims, actions, judgments for damages,
or injury to persons or property and losses and expenses and other costs
including litigation costs and attorney's fees, arising out of, resulting from,
or in connection with the performance of this Agreement by the
CONTRACTOR, its servants, agents, officers, employees, guests, and
business invitees, and not caused by or arising out of the tortuous conduct
of CITY or its employees. CONTRACTOR shall maintain, and specifically
agrees that it will maintain, throughout the term of this Agreement, liability
insurance, in which the CITY shall be named an additional insured in the
minimum amounts as follow: General Liability One Million Dollars
($1,000,000) per incident or occurrence, Automobile Liability Insurance
One Million Dollars ($1,000,000) per incident or occurrence and Workers'
Compensation Insurance, in the statutory limits as required by law.. The
limits of insurance shall not be deemed a limitation of the covenants to
indemnify and save and hold harmless CITY; and if CITY becomes liable
for an amount in excess of the insurance limits, herein provided,
CONTRACTOR covenants and agrees to indemnify and save and hold
harmless CITY from and for all such losses, claims, actions, or judgments
for damages or injury to persons or property and other costs, including
litigation costs and attorneys' fees, arising out of, resulting from , or in
connection with the performance of this Agreement by the Contractor or
Contractor's officers, employs, agents, representatives or subcontractors
and resulting in or attributable to personal injury, death, or damage or
destruction to tangible or intangible property, including use of.
CONTRACTOR shall provide CITY with a Certificate of Insurance, or
other proof of insurance evidencing CONTRACTOR'S compliance with the
requirements of this paragraph and file such proof of insurance with the
CITY at least ten (10) days prior to the date Contractor begins
performance of it's obligations under this Agreement. In the event the
insurance minimums are changed, CONTRACTOR shall immediately
submit proof of compliance with the changed limits. Evidence of all
insurance shall be submitted to the City Purchasing Agent with a copy to
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Project 6007-10176.b - kw
Meridian City Accounting, 33 East Broadway Avenue, Meridian, Idaho
83642.
6.2 Any deductibles, self-insured retention, or named insureds must
be declared in writing and approved by the City. At the option of the City,
either: the insurer shall reduce or eliminate such deductibles, self-insured
retentions or named insureds; or the Contractor shall provide a bond,
cash or letter of credit guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
6.3 To the extent of the indemnity in this contract, Contractor's
Insurance coverage shall be primary insurance regarding the City's
elected officers, officials, employees and volunteers. Any insurance or
self-insurance maintained by the City or the City's elected officers,
officials, employees and volunteers shall be excess of the Contractor's
insurance and shall not contribute with Contractor's insurance except as
to the extent of City's negligence.
6.4 The Contractor's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the
limits of the insurer's liability.
6.5 All insurance coverages for subcontractors shall be subject to all of
the insurance and indemnity requirements stated herein.
6.6 The limits of insurance described herein shall not limit the liability of
the Contractor and Contractor's agents, representatives, employees or
subcontractors.
7. Bonds: Payment and Performance Bonds are required on all Public
Works Improvement Projects.
8. Notices: Any and all notices required to be given by either of the parties
hereto, unless otherwise stated in this agreement, shall be in writing and
be deemed communicated when mailed in the United States mail,
certified, return receipt requested, addressed as follows:
City of Meridian
Purchasing Agent
33 E. Broadway Avenue
Meridian, Idaho 83642
Fothergill Pathway Connection page 6 of 18
Project 6007-10176.b - kw
BriCon, Inc
Attn: Mark Brice
2345 E White Hawk
Meridian, ID 83646
208-888-3746
Idaho Public Works License #: C -11823 -AA -3-4
Either party may change their address for the purpose of this paragraph
by giving written notice of such change to the other in the manner herein
provided.
9. Attorney Fees: Should any litigation be commenced between the parties
hereto concerning this Agreement, the prevailing party shall be entitled, in
addition to any other relief as may be granted, to court costs and
reasonable attorneys' fees as determined by a Court of competent
jurisdiction. This provision shall be deemed to be a separate contract
between the parties and shall survive any default, termination or forfeiture
of this Agreement.
10. Time is of the Essence: The parties hereto acknowledge and agree that
time is strictly of the essence with respect to each and every term,
condition and provision hereof, and that the failure to timely perform any
of the obligations hereunder shall constitute a breach of, and a default
under, this Agreement by the party so failing to perform.
11. Assignment: It is expressly agreed and understood by the parties
hereto, that CONTRACTOR shall not have the right to assign, transfer,
hypothecate or sell any of its rights under this Agreement except upon the
prior express written consent of CITY.
12. Discrimination Prohibited: In performing the Work required herein,
CONTRACTOR shall not unlawfully discriminate in violation of any
federal, state or local law, rule or regulation against any person on the
basis of race, color, religion, sex, national origin or ancestry, age or
disability.
13. Reports and Information:
13.1 At such times and in such forms as the CITY may require, there
shall be furnished to the CITY such statements, records, reports, data and
information as the CITY may request pertaining to matters covered by this
Agreement.
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13.2 Contractor shall maintain all writings, documents and records
prepared or compiled in connection with the performance of this
Agreement for a minimum of four (4) years from the termination or
completion of this or Agreement. This includes any handwriting,
typewriting, printing, photo static, photographic and every other means of
recording upon any tangible thing, any form of communication or
representation including letters, words, pictures, sounds or symbols or any
combination thereof.
14. Audits and Inspections: At any time during normal business hours and
as often as the CITY may deem necessary, there shall be made available
to the CITY for examination all of CONTRACTOR'S records with respect
to all matters covered by this Agreement. CONTRACTOR shall permit the
CITY to audit, examine, and make excerpts or transcripts from such
records, and to make audits of all contracts, invoices, materials, payrolls,
records of personnel, conditions of employment and other data relating to
all matters covered by this Agreement.
15. Publication, Reproduction and Use of Material: No material produced
in whole or in part under this Agreement shall be subject to copyright in
the United States or in any other country. The CITY shall have
unrestricted authority to publish, disclose and otherwise use, in whole or in
part, any reports, data or other materials prepared under this Agreement.
16. Compliance with Laws: In performing the scope of work required
hereunder, CONTRACTOR shall comply with all applicable laws,
ordinances, and codes of Federal, State, and local governments.
17. Changes: The CITY may, from time to time, request changes in the
Scope of Work to be performed hereunder. Such changes, including any
increase or decrease in the amount of CONTRACTOR'S compensation,
which are mutually agreed upon by and between the CITY and
CONTRACTOR, shall be incorporated in written amendments which shall
be executed with the same formalities as this Agreement.
18. Construction and Severability: If any part of this Agreement is held to
be invalid or unenforceable, such holding will not affect the validity or
enforceability of any other part of this Agreement so long as the remainder
of the Agreement is reasonably capable of completion.
19. Waiver of Default: Waiver of default by either party to this Agreement
shall not be deemed to be waiver of any subsequent default. Waiver or
breach of any provision of this Agreement shall not be deemed to be a
waiver of any other or subsequent breach, and shall not be construed to
Fothergill Pathway Connection page 8 of 18
Project 6007-10176.b - kw
be a modification of the terms of this Agreement unless this Agreement is
modified as provided above.
20. Advice of Attorney: Each party warrants and represents that in
executing this Agreement. It has received independent legal advice from
its attorney's or the opportunity to seek such advice.
21. Entire Agreement: This Agreement contains the entire agreement of the
parties and supersedes any and all other agreements or understandings,
oral of written, whether previous to the execution hereof or
contemporaneous herewith.
22. Order of Precedence: The order or precedence shall be the contract
agreement, the Invitation for Bid document, then the winning bidders
submitted bid document.
23. Applicable Law: This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Idaho, and the
ordinances of the City of Meridian.
24. Approval Required: This Agreement shall not become effective or
binding until approved by the City of Meridian.
25. GRANT REQUIREMENTS: This project is being funded by a
Energy Efficiency Conservation Block Grant. The Davis -Bacon Act
applies to this project and it is the responsibility of the Contractor to
comply in all aspects of the law. This contract, will be subject to
HUD -4010 Federal Labor Standards Provisions attached hereto as
"Attachment C" and made a part hereof. Paragraph 2 on page 2 of
HUD -4010 states that the City may withhold payment to Contractor for
failure to pay wages when due. Davis -Bacon requires wages to be 0
not less often than once a week. All subcontractors and any lower Iia'
subcontractors are subject to the same Davis -Bacon Wage
requirements as the general contractor.
Fothergill Pathway Connection page 9 of 18
Project 6007-10176.b - kw
CITY OF MERIDIAN
BY:
ITH WA S, Purchasing Manager
Dated: 32 z A
le
Department Approval
BY:
NAME:'
TITLE: �4_�
T
Dated:
Fothergill Pathway Connection
Project 6007-10176.b - kw
BRICON, INC
1y,� L,
BY: Mark Brice
Dated:
Approved as to Form
CITY ATTORNEY
page 10 of 18
Attachment A
SCOPE OF WORK
REFER TO INVITATION TO BID PKS-11-6007-10176.b
ALL ADDENDUMS, ATTACHMENTS, AND EXHIBITS included in the
Invitation to Bid Package # PKS-11-6007-10176.b, are by this reference
made a part hereof.
Fothergill Pathway Connection page 11 of 18
Project 6007-10176.b - kw
Attachment B
MILESTONE 1 PAYMENT SCHEDULE
A. Total and complete compensation for this Agreement shall not exceed
$10,129.00.
Travel expenses will be paid at no more than the Cityof Meridian's Travel and
Expense Reimbursement Policy.
Fothergill Pathway Connection page 12 of 18
Project 6007-10176.b - kw
PRICING SCHEDULE
Contract includes furnishing all labor, materials, equipment, and incidentals as required for the
FOTHERGILL PATHWAY CONNECTION — CONSTRUCTION, PKS-11-6007-10176.b.
CONTRACT TOTAL .......................$
10,129.00
ITEM PRICING BELOW WILL BE USED FOR CHANGE ORDER PRICING ONLY.
ITEM
DESCRIPTION
UNITS
UNIT PRICE
1
PROVIDE ALL LABOR, MATERIALS, AND EQUIPMENT TO INSTALL CONSTRUCTION
LF
$ .50
FENCING FOR THE PROJECT, 4 FOOT TALL ORANGE HEAVY DUTY MESH
PROVIDE ALL LABOR, MATERIALS, AND EQUIPMENT TO COMPLY WITH THE CITY OF
2
MERIDIAN'S CONSTRUCTION STORM WATER MANAGEMENT PROGRAM FOR CAPITAL
LS
$1500.00
IMPROVEMENT PROJECTS. APPENDIX D FROM THE PROGRAM IS BEING PROVIDED FOR
BIDDING INFORMATION
3
PROVIDE ALL LABOR, MATERIALS, AND EQUIPMENT TO SAW CUT, REMOVE AND
SF
$ 60
DISPOSE OF EXISTING ASPHALT PAVEMENT
4
PROVIDE ALL LABOR, MATERIALS, AND EQUIPMENT TO EXCAVATE, INSTALL AND
SF
$ 3.60
COMPACT ASPHALT PATHWAY
LF
$ 2.00
5
PROVIDE ALL LABOR, MATERIALS, AND EQUIPMENT TO INSTALL SWALE
B
PROVIDE ALL LABOR, MATERIALS, AND EQUIPMENT TO INSTALL SOIL STABILIZATION M-
SF
$ 1.00
BINDER
EA
$ 300.00
7
PROVIDE ALL LABOR, MATERIALS, AND EQUIPMENT TO RELOCATE TRAFFIC BARRIER
8
PROVIDE ALL LABOR, MATERIALS, AND EQUIPMENT TO INSTALL REMOVEABLE
EA
$ 100.00
BOLLARDS
Travel expenses will be paid at no more than the Cityof Meridian's Travel and
Expense Reimbursement Policy.
Fothergill Pathway Connection page 12 of 18
Project 6007-10176.b - kw
Attachment C
HUD Form 4010
Fothergill Pathway Connection page 13 of 18
Project 6007-10176.b - kw
Tederai 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 this Contract
construction industry; and
pursuant to the provisions applicable to such Federal
assistance.
(3) The proposed wage rate, including any bona fide
A. 1. (€) Minimum Wages. All laborers and mechanics
fringe benefits, bears a reasonable relationship to the
wage rates contained in the wage determination.
employed or working upon the site of the work, will be paid
unconditionally and not less often than once a week, and
(b) If the contractor and the laborers and mechanics to be
without subsequent deduction or rebate on any account
employed in the classification (if known}, or their
(except such payroll deductions as are permitted by
representatives, and HUD or its designee agree on the
regulations issued by the Secretary of Labor under the
rate classification and wa a
9 (including the amount
Copeland Act (29 CFR Part 3), the full amount of wages
designated for fringe benefits where appropriate), a report
and bona fide fringe benefits (or cash equivalents thereof)
of the action taken shall be sent by HUD or its designee to
due at time of payment computed at rates not less than
the Administrator of the Wage and Hour Division,
those contained in the wage determination of the
Employment Standards Administration, U.S. Department of
Secretary of Lobar which is attached hereto and made a
Labor, Washington, D.C. 20210. The Administrator, or an
part hereof, regardless of any contractual relationship
authorized representative, will approve, modify, or
which may be alleged to exist between the contractor and
disapprove every additional classification action within 30
such laborers and mechanics. Contributions made
days of receipt and so advise HUD or its designee or will
or
costs reasonably anticipated for bona fide fringe benefits
notify HUD or its designee within the 30 -day period that
under Section l(b)(2) of the Davis -Bacon Act on behalf of
additional time is necessary. (Approved by the Office of
laborers or mechanics are considered wages paid to such
Management and Budget under OMB control number 1215-
laborers or mechanics, subject to the provisions of 29 CFR
0140.)
5.5(a)(1)(iv); also, regular contributions made or costs
(c) In the event the contractor, the laborers or mechanics
incurred for more than a weekly period (but not less often
to be employed in the classification or their
than quarterly) under plans, funds, or programs, which
representatives, and HUD or its designee do not agree on
cover the particular weekly period, are deemed to be
the proposed classification and wage rate (including the
constructively made or incurred during such weekly period.
amount designated for fringe benefits, where appropriate),
Such laborers and mechanics shall be paid the appropriate
HUD or its designee shall refer the questions, including
wage rate and fringe benefits on the wage determination
the views of all interested parties and the recommendation
for the classification of work actually performed, without
of HUD or its designee, to the Administrator for
regard to skill, except as provided in 29 CFR 5.5(a)(4),
determination. The Administrator, or an authorized
Laborers or mechanics performing work in more than one
representative, will issue a determination within 30 days of
classification may be compensated at the rate specified for
receipt and so advise HUD or its designee or will notify
each classification for the time actually worked therein:
HUD or its designee within the 30 -day period that
Provided, That the employer's payroll records accurately
additional time Is necessary. (Approved by the Office of
set forth the time spent in each classification in which
Management and Budget under OMB Control Number
work is performed. The wage determination (including any
1215-0140.)
additional classification and wage rates conformed under
(d) The wage rate (including fringe benefits where
29 CFR 5.5(a)(1)(€€) and the Davis -Bacon poster (WH-
appropriate) determined pursuant to subparagraphs
1321) shall be posted at all times by the contractor and its
(1)(i€)(b) or (c) of this paragraph, shall be paid to all
subcontractors at the site of the work in a prominent and
workers performing work in the classification under this
accessible, place where it can be easily seen by the
contract from the first day on which work is performed in
workers.
the classification.
(€€) (a) Any class of laborers or mechanics which is not
(I€€) Whenever the minimum wage rate prescribed in the
listed in the wage determination and which is to be
contract for a class of laborers or mechanics includes a
employed under the contract shall be classified in
fringe benefit which is not expressed as an hourly rate, the
conformance with the wage determination. HUD shall
contractor shall either pay the benefit as stated in the
approve an additional classification and wage rate and
wage determination or shall pay another bona fide fringe
fringe benefits therefor only when the following criteria
benefit or an hourly cash equivalent thereof.
have been met:
(iv) If the contractor does not make payments to a trustee
or other third person, the contractor may consider as part
Previous editions are obsolete Page 1
form HUD -4010 (0612009)
5
of ref. Handbook 1344.1
of the wages of any laborer or mechanic the amount of any
costs reasonably anticipated in providing bona fide fringe
benefits under a plan or program, Provided, That the
Secretary of Labor has found, upon the written request of
the contractor, that the applicable standards of the Davis -
Bacon Act have been met. The Secretary of Labor may
require the contractor to set aside In a separate account
assets for the meeting of obligations under the plan or
program. (Approved by the Office of Management and
Budget under OMB Control Number 1215-0140.)
2. Withholding. HUD or its designee shall upon its own
action or upon written request of an authorized
representative of the Department of Labor withhold or
cause to be withheld from the contractor under this
contract or any other Federal contract with the same prime
contractor, or any other Federally -assisted contract
subject to Davls-Bacon prevailing wage requirements,
which is held by the same prime contractor so much of the
accrued payments or advances as may be considered
necessary to pay laborers and mechanics, including
apprentices, trainees and helpers, employed by the
contractor or any subcontractor the full amount of wages
required by the contract In the event of failure to pay any
laborer or mechanic, including any apprentice, trainee or
helper, employed or working on the site of the work, all or
part of the wages required by the contract, HUD or its
designee may, after written notice to the contractor,
sponsor, applicant, or owner, take such action as may be
necessary to cause the suspension of any further
payment, advance, or guarantee of funds until such
violations have ceased. HUD or its designee may, after
written notice to the contractor, disburse such amounts
withheld for and on account of the contractor or
subcontractor to the respective employees to whom they
are due. The Comptroller General shall make such
disbursements in the case of direct Davis -Bacon Act
contracts.
3. (i) Payrolls and basic records. Payrolls and basic
records relating thereto shall be maintained by the
contractor during the course of the work preserved for a
period of three years thereafter for all laborers and
mechanics working at the site of the work. Such records
shall contain the name, address, and social security
number of each such worker, his or her correct
classification, hourly rates of wages paid (including rates
of contributions or costs anticipated for bona fide fringe
benefits or cash equivalents thereof of the types described
in Section I(b)(2)(B) of the Davis -bacon Act), daily and
communicated in writing to the laborers or mechanics
affected, and records which show the costs anticipated or
the actual cost incurred in providing such benefits.
Contractors employing apprentices or trainees under
approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of
trainee programs, the registration of the apprentices and
trainees, and the ratios and wage rates prescribed in the
applicable programs. (Approved by the Office of
Management and Budget under OMB Control Numbers
1215-0140 and 1215-0017.)
(ii) (a) The contractor shall submit weekly for each week
in which any contract work is performed a copy of all
payrolls to HUD or its designee if the agency is a party to
the contract, but if the agency is not such a party, the
contractor will submit the payrolls to the applicant
sponsor, or owner, as the case may be, for transmission to
HUD or its designee. The payrolls submitted shall set out
accurately and completely all of the information required
to be maintained under 29 CFR 5.5(a)(3)(i) except that full
social security numbers and home addresses shall not be
included on weekly transmittals. Instead the payrolls shall
only need to include an individually identifying number for
each employee (e.g., the last four digits of the employee's
social security number). The required weekly payroll
information may be submitted in any form desired.
Optional Form WH -347 is available for this purpose from
the Wage and Hour Division Web site at
http://www.dol..ciovlesalwhdlformslwh347instr.htm or its
successor site. The prime contractor is responsible for
the submission of copies of payrolls by all subcontractors.
Contractors and subcontractors shall maintain the full
social security number and current address of each
covered worker, and shall provide them upon request to
HUD or its designee if the agency is a party to the
contract, but if the agency is not such a party, the
contractor will submit the payrolls to the applicant
sponsor, or owner, as the case may be, for transmission to
HUD or its designee, the contractor, or the Wage and Hour
Division of the Department of Labor for purposes of an
investigation or audit of compliance with prevailing wage
requirements. It is not a violation of this subparagraph for
a prime contractor to require a subcontractor to provide
addresses and social security numbers to the prime
contractor for its own records, without weekly submission
to HUD or its designee. (Approved by the Office of
Management and Budget under OMB Control Number
1215-0149.)
weekly number of hours worked, deductions made and (b) Each payroll submitted shall be accompanied by a
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 1(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 such benefits is (a)(3)(ii , the a
enforceable, that the Ian or ) appropriate information is being maintained
p program is financially under 29 CFR 5.5(a)(3)(i), and that such information is
responsible, and that the plan or program has been correct and complete;
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(2) That each laborer or mechanic (including each helper,
apprentice, and trainee) employed on the contract during
the payroll period has been paid the full weekly wages
earned, without rebate, either directly or indirectly, and
that no deductions have been made either directly or
indirectly from the full wages earned, other than
permissible deductions as set forth in 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less
than the applicable wage rates and fringe benefits or cash
equivalents for the classification of work performed, as
specified in the applicable wage determination
incorporated into the contract.
(c) The weekly submission of a properly executed
certification set forth on the reverse side of Optional Form
WH -347 shall satisfy the requirement for submission of the
'Statement of Compliance' required by subparagraph
A.3.(li)(b).
(d) The falsification of any of the above certifications may
subject the contractor or subcontractor to civil or criminal
prosecution under Section 1001 of Title 18 and Section
231 of Title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the
records required under subparagraph A.3.(i) available for
inspection, copying, or transcription by authorized
representatives of HUD or its designee or the Department
of Labor, and shall permit such representatives to
interview employees during working hours on the job. If
the contractor or subcontractor falls to submit the required
records or to make them available, HUD or its designee
may, after written notice to the contractor, sponsor,
applicant or owner, lake such action as may be necessary
to cause the suspension of any further payment, advance,
or guarantee of funds. Furthermore, failure to submit the
required records upon request or to make such records
available may be grounds for debarment action pursuant to
29 CFR 5.12.
is not registered or otherwise employed as stated above,
shall be paid not less than the applicable wage rate on the
wage determination for the classification of work actually
performed. In addition, any apprentice performing work on
the job site in excess of the ratio permitted under the
registered program shall be paid not less than the
applicable wage rate on the wage determination for the
work actually performed. Where a contractor is performing
construction on a project in a locality other than that in
which its program is registered, the ratios and wage rates
(expressed in percentages of the journeyman's hourly
rate) specified in the contractor's or subcontractor's
registered program shall be observed. Every apprentice
must be paid at not less than the rate specified in the
registered program for the apprentice's level of progress,
expressed as a percentage of the journeymen hourly rate
specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance
with the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits
listed on the wage determination for the applicable
classification. If the Administrator determines that a
different practice prevails for the applicable apprentice
classification, fringes shall be paid in accordance with that
determination. In the event the Office of Apprenticeship
Training, Employer and Labor Services, or a State
Apprenticeship Agency recognized by the Office,
withdraws approval of an apprenticeship program, the
contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate
for the work performed until an acceptable program is
approved.
(ii) Trainees, Except as provided in 29 CFR 5.16,
trainees will not be permitted to work at less than the
predetermined rate for 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 rate for the work they
Employment and Training Administration. The ratio of
performed when they are employed pursuant to and
trainees to journeymen on the job site shall not be greater
individually registered in a bona fide apprenticeship
than permitted under the plan approved by the
program registered with the U.S, Department of Labor,
Employment and Training Administration. Every trainee
Employment and Training Administration, Office of
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, who is 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
Services or a 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
an apprentice. 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 rale, who
registered and participating in a training plan approved by
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form HUD -4010 (0612009)
Page
3 of 5 ref. Handbook 1344.1
the Employment and Training Administration shall be paid
not less than the applicable wage rate on the wage
determination for the work actually performed, in addition,
any trainee performing work on the job site in excess of
the ratio permitted under the registered program shall be
paid not less than the applicable wage rate on the wage
determination for the work actually performed. In the
event the Employment and Training Administration
withdraws approval of a training program, the contractor
will no longer be permitted to utilize trainees at less than
the applicable predetermined rate for the work performed
until an acceptable program is approved.
(iii) Equal employment opportunity. The utilization of
apprentices, trainees and journeymen under 29 CFR Part 5
shall be in conformity with the equal employment
opportunity requirements of Executive Order 11246, as
amended, and 29 CFR Part 30.
5. Compliance with Copeland Act requirements. The
contractor shall comply with the requirements of 29 CFR
Part 3 which are incorporated by reference in this contract
6. Subcontracts. The contractor or subcontractor will
insert in any subcontracts the clauses contained in
subparagraphs 1 through 11 in this paragraph A and such
other clauses as HUD or its designee may by appropriate
instructions require, and a copy of the applicable
prevailing wage decision, and also a clause requiring the
subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor shall be responsible
for the compliance by any subcontractor or lower tier
subcontractor with all the contract clauses in this
paragraph.
7. Contract termination; debarment. A breach of the
contract clauses in 29 CFR 5.5 may be grounds for
termination of the contract and for debarment as a
contractor and a subcontractor as provided In 29 CFR
5.12.
8. Compliance with Davis -Bacon and Related Act Requirements.
All rulings and interpretations of the Davis -Bacon and
Related Acts contained in 29 CFR Parts 1, 33 and 5 are
herein incorporated by reference in this contract
9. Disputes concerning labor standards. Disputes
arising out of the labor standards provisions of this
contract shall not be subject to the general disputes
clause of this contract. Such disputes shall be resolved in
accordance with the procedures of the Department of
Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes
within the meaning of this clause include disputes between
the contractor (or any of its subcontractors) and HUD or
its designee, the U.S. Department of Labor, or the
employees or their representatives.
10. (i) Certification of Eligibility. By entering into this
contract the contractor certifies that neither it (nor he or
she) nor any person or firm who has an interest in the
contractor's firm is a person or firm ineligible to be
awarded Government contracts by virtue of Section 3(a) of
the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be
awarded HUD contracts or participate in HUD programs
pursuant to 24 CFR Part 24.
(ii) No part of this contract shall be subcontracted to any
person or firm ineligible for award of a Government
contract by virtue of Section 3(a) of the Davis -Bacon Act
or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or
participate in HUD programs pursuant to 24 CFR Part 24.
(iii) The penalty for making false statements is prescribed
in the U.S. Criminal Code, 18 U.S.C. 1001. Additionally,
U.S. Criminal Code, Section 1 01 0, Title 16, U.S.C.,
"Federal Housing Administration transactions", provides in
part: "Whoever, for the purpose of .. . influencing in any
way the action of such Administration..... makes, utters or
publishes any statement knowing the same to be false..._
shall be fined not more than $5,000 or imprisoned not
more than two years, or both."
11. Complaints, Proceedings, or Testimony by
Employees. No laborer or mechanic to whom the wage,
salary, or other labor standards provisions of this Contract
are applicable shall be discharged or in any other manner
discriminated against by the Contractor or any
subcontractor because such employee has filed any
complaint or instituted or caused to be instituted any
proceeding or has testified or is about to testify in any
proceeding under or relating to the labor standards
applicable under this Contract to his employer.
B. Contract Work Hours and Safety Standards Act. The
provisions of this paragraph B are applicable where the amount of the
prime contract exceeds $100,000. As used in this paragraph, the
terms "laborers" and "mechanics" include watchmen and guards.
(1) Overtime requirements. No contractor or subcontractor
contracting for any part of the contract work which may require or
involve the employment of laborers or mechanics shall require or
permit any such laborer or mechanic in any workweek in which the
individual is employed on such work to work in excess of 40 hours in
such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half limes the basic
rate of pay for all hours worked in excess of 40 hours in such
workweek.
(2) Violation; liability for unpaid wages; liquidated
damages. in the event of any violation of the clause set
forth in subparagraph (1 ) of this paragraph, the contractor
and any subcontractor responsible therefor shall be liable
for the unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States (in the
case of work done under contract for the District of
Columbia or a territory, to such District or to such
territory), for liquidated damages. Such liquidated
damages shall be computed with respect to each individual
laborer or mechanic, including watchmen and guards,
employed in violation of the clause set forth in
subparagraph (1) of this paragraph, in the sum of $10 for each
calendar day on which such individual was required or permitted to
work in excess of the standard workweek of 40 hours without payment
of the overtime wages required by the clause set forth in sub
paragraph (1) of this paragraph.
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(3) Withholding for unpaid wages and liquidated
damages. HUD or its designee shall upon its own action
or upon written request of an authorized representative of
the Department of Labor withhold or cause to be withheld,
from any moneys payable on account of work performed by
the contractor or subcontractor under any such contract or
any other Federal contract with the same prime contract,
or any other Federally -assisted contract subject to the
Contract Work Hours and Safety Standards Act which is
held by the same prime contractor such sums as may be
determined to be necessary to satisfy any liabilities of
such contractor or subcontractor for unpaid wages and
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 subcontractors to include these
clauses in any lower tier subcontracts. 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.
(1) No laborer or mechanic shall be required to work in
surroundings or under working conditions which are
unsanitary, hazardous, or dangerous to his health and
safety as determined under construction safety and health
standards promulgated by the Secretary of Labor by
regulation
(2) The Contractor shall comply with all regulations
issued by the Secretary of Labor pursuant to Title 29 Part
1926 and failure to comply may result in imposition of
sanctions pursuant to the Contract Work Hours and Safety
Standards Act, (Public Law 91-54, 83 Stat 96). 40 USC
3701 et sea.
(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 of Housing and Urban Development or the
Secretary of Labor shall direct as a means of enforcing
such provisions.
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Page 5 of 5 ref. Handbook 1344.1